OFCCP Issues Final Rule on Internet Applicants
October 1, 2005
On October 7, 2005, the Office of Federal Contract Compliance Programs (OFCCP) issued its final rule concerning the obligation of federal contractors to gather and maintain information about Internet applicants. The new rule will become effective on February 6, 2006.
- If you are a federal contractor subject to the jurisdiction of the OFCCP, you will need to ensure that your application and record retention procedures comply with the new rule by February 6, 2006.
- Prior to February 6, 2006, you may wish to revise your application protocols to reduce your record-keeping obligations, as explained below.
- If you are not subject to the jurisdiction of the OFCCP, you should be on the lookout for final guidance on this same subject matter expected soon from the Equal Employment Opportunity Commission (EEOC). In addition, you should ensure that your record retention policies comply with other applicable state and federal employment laws.
In 2000, the OFCCP, the EEOC, the Department of Justice, and the Office of Personnel Management began considering revisions to the decades-old Uniform Guidelines on Employee Selection Procedures (UGESP). One result of these efforts was joint guidance proposed by these agencies in March 2004 dealing with the issue of Internet applicants. The joint guidance was intended to address employers’ concerns over what to do with the huge volume of applications they receive over the Internet. For example, it was noted in the joint guidance that one healthcare employer received 300,000 online resumes in one year.
The joint guidance still has not been issued in final form. However, it was always envisioned that each agency involved in developing the joint guidance would issue additional guidance or regulations relating to that agency’s enforcement responsibilities. With a few changes from the joint guidance, the OFCCP has now issued its final rule on Internet applicants. The OFCCP has authority for enforcing Executive Order 11246 and several other statues. Executive Order 11246 applies to all nonexempt contractors and subcontractors who do at least $10,000 in government business in one year.
The OFCCP’s final rule, which will be effective February 6, 2006, has two main requirements. First, the OFCCP mandates that contractors retain Internet “expressions of interest” in certain circumstances as well as specific records relating to internal and external resume databases. An expression of interest must be retained if it was received through the Internet or related electronic data technologies, and the contractor considered the individual for a particular position. The retention period for these records generally is one year for contractors that have less than 150 employees or that do not have a government contract of at least $150,000; for all other contractors, the retention period generally is two years.
Second, the OFCCP requires that contractors collect gender, race, and ethnicity information from “Internet Applicants.” An Internet Applicant is an individual who meets each of the following four criteria:
- The individual submits an expression of interest in employment through the Internet or related electronic data technologies
- The employer considers the individual for employment in a particular position
- The individual’s expression of interest indicates that he or she possesses the basic qualifications for the position
- The individual at no point in the employer’s selection process prior to receiving an offer of employment from the employer removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position
The OFCCP only requires that race, gender, and ethnicity information be collected with respect to Internet Applicants “where possible.” How far an employer must go to gather this information is not entirely clear. Certainly employers must track information that is readily obtainable from the Internet Applicant’s expression of interest, such as, in most cases, the gender. Employers also may be required to proactively provide ways for applicants to self-report their race, gender, and ethnicity. For instance, an employer could revise its online application procedures on its corporate website to allow applicants to self-report race, gender, and ethnicity information when submitting an expression of interest.
In an important concession to employers, the OFFCP contemplates that a “contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes.” Furthermore, “a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position.” As noted above, an expression of interest that is never “considered” by a contractor does not need to be retained. Therefore, employers have an opportunity now to establish hiring protocols that will reduce their future record-keeping obligations.
As a result of a change in the final rule from the earlier rule proposed by the OFCCP, employers are less likely to be subject to conflicting record-keeping obligations. Previously, two sets of standards might have been applied to applications received for the same position