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TOPIC:
OFCCP “INTERNET APPLICANT” DATA COLLECTION AND
RECORDKEEPING RULE
INTRODUCTION:
The Office of Federal Contract Compliance Programs (“OFCCP”) has
issued a final rule [1]
modifying data collection and recordkeeping requirements for federal
government contractors and subcontractors subject to Executive Order 11246
(“EO 11246”). This new rule establishes when such contractors and
subcontractors must solicit race, ethnicity, and gender data, and under what
circumstances they must maintain records and other information for
individuals who express interest in positions via the Internet and other
electronic means. The final rule became effective February 6, 2006 and is now
being enforced by OFCCP. Accordingly, colleges and universities subject to EO
11246 need to review their job applicant and employment selection procedures.
This Note discusses the final rule, its applicability, and the requirements
for demographic information collection and recordkeeping concerning Internet
job applicants. It also offers suggestions to institutions for refining their
hiring processes to ensure they are complying with the final rule.
DISCUSSION:
EO 11246, as amended, “requires covered contractors and subcontractors
to refrain from discrimination and to engage in affirmative steps to ensure
that applicants and employees receive equal employment opportunity regardless
of race, color, religion, sex, and/or national origin.” [2]
OFCCP, the federal agency that enforces EO 11246, mandates that
covered federal government contractors and subcontractors (collectively, “contractors”)
compile certain demographic information concerning applicants and retain
certain records related to job seekers. OFCCP’s final rule modifies
these data collection and recordkeeping requirements for individuals who
express interest in positions via the Internet and other electronic means.
I. To Whom Does the Rule Apply?
The final rule applies to contractors subject to EO 11246. The rule’s
data collection and record retention requirements apply to contractors
holding a federal government contract or subcontract [3] in
excess of $10,000. [4]
The demographic information, which the final rule requires contractors
to collect, is of particular import to those contractors or subcontractors
who are obligated to prepare written affirmative action programs
(“AAPs”), which includes an annual evaluation of the impact of
their selection process on minority and female applicants. [5]
Such AAPs are required for contractors that have 50 or more employees and a
contract or subcontract in excess of $50,000.
EO 11246 does not cover grants, although the actual terms and purposes of the
arrangement, rather than its label, ultimately control whether an arrangement
is a contract or a grant. Generally speaking, government contracts are
distinguishable from grants in that the principal purpose of a contract is to
provide a direct benefit to the federal government, while the principal
purpose of a grant is to further a public purpose. [6]
In the college and university context, federal contracts frequently
take the form of research contracts on behalf of a particular government
agency, for example, contracts to run a government laboratory, or contracts
to provide on-line or other educational support to the military. Institutional
examples of federal grants include support for curriculum development in the
humanities or another academic field, or the preservation of scholarly
materials.
Contractors who fail to comply with EO 11246, including the data collection
and record retention requirements, may be cited by OFCCP during a compliance
evaluation. Such evaluations may take place on a routine or pre-award basis.
If determined not to be in compliance, the contractor normally will be
required to enter into a compliance agreement that permits regular monitoring
of its employment practices by OFCCP for a period of time. In certain unusual
situations, such as where a contractor refuses to come into compliance or
violates a compliance agreement, the contractor may be subject to an OFCCP
enforcement proceeding, which can lead to debarment from federal contracts.
II. How Does the Rule Modify the
Requirements to Collect Demographic Information on Applicants?
The final rule gives contractors the opportunity to limit the pool of
applicants for which demographic data needs to be collected. [7]
Who Is an Applicant?
In the past, OFCCP followed the Question and Answers to the Uniform
Guidelines on Employee Selection Procedures (“UGESP”), which
defined an “applicant” as “a person who has indicated an
interest in being considered for hiring, promotion, or other employment
opportunity. This interest might be expressed by completing an application
form, or might be expressed orally, depending upon the employer’s
practice.” [8]
This ambiguous definition proved unworkable, especially as the use of the
Internet and related electronic data technologies for job application
purposes became widespread, making “mass mailing” of resumes and
the use of Internet job boards (such as Monster.com) possible. Under the
traditional definition, every job seeker who expressed interest in
employment, irrespective of whether a position was open or the job seeker
even met the basic qualifications for the position, could be deemed an
“applicant.”
In light of the incongruity between the traditional definition of
“applicant” and the realities of today’s technologically
driven job search market, OFCCP has narrowed the category of individuals who
must be considered applicants by adopting an “Internet Applicant”
definition in the final rule. Notably, OFCCP’s “Internet
Applicant” definition does not include all people who express interest
in employment, as it excludes individuals who are not considered for a particular
position, who do not meet basic objective qualifications or who take
themselves out of consideration for the position. [9]
Specifically, the new “Internet Applicant” rule applies when:
- An individual submits an
expression of interest through the Internet or related electronic data
technologies;
- The contractor considers the
individual for employment in a particular position;
- An individual’s
expression of interest indicates that he or she possesses the basic
qualifications for the position; and
- Prior to receiving an offer
of employment from the contractor, an individual at no point in the
selection process removes him or herself from further consideration or
otherwise indicates that he or she is no longer interested in the
position. [10]
Each of these requirements is discussed in greater
detail below.
Submission of expression of
interest via the Internet or related electronic data technologies.
Although the OFCCP declined to
provide a precise definition of the term “Internet and related
electronic data technologies,” in recognition of rapid technology
changes, it has indicated that the term includes, but is not limited to,
e-mail, resume databases, job banks, and employer websites. [11]
When a job seeker submits an expression of interest via any of these
methods, an employer must solicit demographic data if the remaining three
requirements of the Internet Applicant definition are met. Note, however,
that contractors may subject expressions of interest submitted through
non-electronic means to the “Internet Applicant” criteria if a
contractor considers both traditional and electronic expressions of
interest for the particular position. Only in situations where a contractor
considers expressions of interest submitted exclusively through
traditional means (e.g., by mail or hand delivery) will the broader
traditional definition of “applicant” apply. [12]
Contractor considers job seeker
for employment in a particular position.
Under this requirement, the contractor
“considers” a job seeker when it assesses “the substantive
information provided in the expression of interest with respect to any
qualifications involved with a particular position.” [13]
A contractor may establish a protocol
whereby it refuses to “consider” expressions of interest that are
not submitted with respect to a particular position (e.g., unsolicited resumes),
or in accordance with designated procedures (such as requiring job seekers
applying electronically to apply through its Internet website, rather than by
e-mail). Further, where there are a large number of expressions of interest,
a contractor may use certain data management techniques that do not depend on
the assessment of qualifications to reduce the number of expressions of
interest it will consider. For example, the contractor may consider a subset
of resumes selected at random, or it may elect to consider only the first 100
resumes received. [14]
If the contractor has not “considered” a given candidate as
a result of such protocols or techniques, it need not solicit demographic
data.
Possession of basic qualifications
for the position.
“Basic qualifications”
include advertised qualifications that job seekers must possess to be
considered for the position, or, if a position is not advertised (e.g., where
the contractor searches for applicants through an external resume database
such as Monster.com), qualifications that are established by the contractor
and the creation and maintenance of a record of such qualifications in
advance of consideration of any expressions of interest. These qualifications
must be noncomparative, objective, and relevant to the performance of the
particular position, and enable the contractor to meet its business-related
goals. [15]
Individuals who do not meet such predetermined “basic
qualifications” can be removed from the category of individuals from
whom demographic data must be requested. [16]
No removal from consideration.
A job seeker removes him or herself
from further consideration or otherwise indicates he or she is no longer
interested in the position if the individual makes an express statement to
that effect, or passively demonstrates disinterest due to repeated
non-responsiveness to contractor inquiries about interest in the position. In
addition, a contractor may infer disinterest based on information provided in
the expression of interest (such as salary requirements or preferences
regarding type or location of work), as long as the contractor uniformly and
consistently does not consider similarly situated job seekers. [17]
A contractor need not solicit demographic data on candidates who
remove themselves from consideration.
III.
What Records and Information on Job Seekers Must be Kept?
While covered contractors may limit
their solicitation of race, ethnicity, and gender data to persons who apply
electronically and are within the “Internet Applicant” definition
of the final rule, contractors must retain records relating to
expressions of interest submitted via the Internet or related electronic data
technologies for any job seekers “considered” for a particular
position, regardless of whether such individuals meet the other criteria in
the “Internet Applicant” definition. [18]
In other words, if the contractor considers the substantive
information provided by the applicant with respect to qualifications, it must
keep the records even if the candidate is determined not to meet the basic
qualifications of the job. Such records include, but are not limited to,
applications, on-line resumes, internal resume databases, records identifying
job seekers contacted regarding their interest in a particular position, job
advertisements, and job postings. [19]
Resume databases
The final rule contains special
recordkeeping requirements related to a contractor’s use of internal
and external resume databases.
Internal.
Contractors are required to retain records of the following: (1) each resume
added to the database, (2) the date each resume was added, (3) the position
for which each search of the database was made, and (4) the date and search
criteria used for each search.
External.
Contractors are required to retain records of the following: (1) the position
for which each search of the database was made, (2) the date and search
criteria used for each search, and (3) resumes of job seekers identified
during the search who meet the basic qualifications for the position and are
considered by the contractor. [20]
The final rule does not specify the
form in which records related to internal and external resume databases must
be maintained. Many contractors store the required information
electronically, although retention of this information on paper is also
permitted under applicable regulations.
IV.
What Rules Apply to Test Takers?
The last major modification resulting
from OFCCP’s final rule relates to the use of employment tests. A
contractor must solicit race, ethnicity, and gender information for
applicants for whom employment tests and test results are used in the
screening process, regardless of whether the job seekers who took the test
meet the Internet Applicant definition (e.g., even if it is later determined
he or she does not meet the basic qualifications for the job). [21]
For example, demographic data must be solicited if the test results
are considered and used to determine who will be screened further in the
process. However, if the test is not used as a selection procedure until
after the test taker is determined to meet the basic qualifications for the
job, demographic data need not be solicited on those who do not meet the
basic qualifications. [22]
In all cases, copies of the tests and test results must be retained
for the requisite time periods.
V.
Recommendations for Colleges and Universities Who Are Federal Contractors
Subject to Executive Order 11246
Colleges and universities who are
federal contractors subject to EO 11246 should review their application
processes for faculty, staff, and other categories of employees to identify
when they need to collect demographic information and what employment-related
documents they need to retain. In many cases, it may be prudent for educational
institutions to revise their job search procedures to narrow the
administrative burden associated with the new data collection and/or
recordkeeping requirements set forth by the final rule. For instance,
colleges and universities may want to establish the following:
- Protocols to exclude
consideration of expressions of interest that are not submitted in
accordance with standard procedures. For example, an institution may
establish a rule whereby persons wishing to apply for a faculty or staff
position electronically must apply through the school’s Internet
recruitment website, not by e-mail or facsimile.
- Protocols to exclude
consideration of expressions of interest that are not submitted with
respect to a particular open position. For example, an institution may
establish a policy whereby it will not consider any resumes that are
submitted without identifying the specific open position for which the
job seeker is applying.
- Data management techniques to
limit consideration of individuals for positions that generate a large
number of expressions of interest. For example, an institution may elect
to consider only a random sample of expressions of interest, or set an
absolute ceiling on the total number it will consider.
- Basic qualifications for
given positions. For example, an institution may mandate that all
applicants for a certain position possess a specialized degree or
requisite employment experience (e.g., three years of registered nursing
experience in a hospital).
Institutions may also want to review and confirm
what tests will be used as a selection procedure, and at what point in the
process test results are considered, given that using such tests may impose
additional, potentially burdensome data collection and record retention
requirements. To the extent tests are used, procedures should be implemented
to ensure that proper demographic data is requested from the test takers when
circumstances require, and that all relevant records are retained.
Administrators with hiring
responsibility are likely to benefit from consulting with counsel before
altering or amending their policies.
CONCLUSION:
EO 11246 and its implementing regulations have imposed strict data collection
and recordkeeping requirements on colleges and universities that are covered
contractors or subcontractors. OFCCP’s new Internet Applicant rule
offers the opportunity to implement job application and selection procedures
that could, if used properly and on a consistent basis, significantly reduce
the administrative burdens associated with the required demographic data
collection and record retention requirements.
FOOTNOTES
AUTHORS:
Patricia R. Ambrose
Gregory
M. Petouvis
RESOURCES FOR
COUNSEL:
Regulations:
· 70
Fed. Reg. 58.946 (October 7, 2005)
· 41 C.F.R. Part 60-1
- 41 C.F.R. Part 60-1.3
- 41 C.F.R. Part 60-1.3 (1)
(ii)
- 41 C.F.R. Part 60-1.5
- 41 C.F.R. Part 60-1.12
- 41 C.F.R. Part 60-1.12(a)
· 41 C.F.R. Part 60-2.17(b)
· Executive
Order 11246, as amended
Cases:
· Hammond v. Donovan, 538 F. Supp.
1106, 1109-1110 (W.D. Mo. 1982)
Department
of Labor Resources:
· Employment
Law Guide
· Internet
Applicant Recordkeeping Rule: Frequently Asked Questions
· Contractor
Data Tracking Responsibilities, OFCCP Directive ADM 04-1
· OFCCP
Internet Applicant Recordkeeping Rule – PowerPoint presentation
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