On October 7, 2005, the Office of Federal Contract Compliance Programs (OFCCP) released the final rule regarding the definition of an Internet applicant[1].  Overall, the final definition does not differ substantially from the proposed definition published in the Federal Register on March 29, 2004[2].  However, the OFCCP offers a few revisions to the four conditions and provides additional details to help contractors comply with the new rule, effective February 2006. 

Given our work in EEO/AA litigation support, the Peopleclick Research Institute (PRI) has followed the taskforce's progress. Along the way, PRI has commented on the topic through a white paper, presentations, and a webinar. Here, we offer our interpretation and analysis of the latest developments in this area.

The definition of an applicant is important to employers for several reasons related to compliance with anti-discrimination regulations.  First, only an applicant may establish a prima facie case of discrimination in hiring.  Second, an employer must be able to identify all applicants in order to conduct disparate impact studies on its hiring process. Finally, federal regulations require employers to collect race and gender information on all applicants. 

The Uniform Guidelines on Employee Selection Procedures (UGESP), published by a consortium of federal agencies responsible for enforcing anti-discriminatory regulations in 1978 (the UGESP agencies) provided employers with specific guidelines for using tests and assessments in the hiring process in a non-discriminatory manner.  The UGESP introduced the 80% rule and validation to employers, attorneys and the courts.  In 1979, the consortium published a series of questions and answers to further clarify the Guidelines.  Q&A #15 provides two conditions for an individual to be considered an applicant, as follows:

1.  the individual must indicate an interest in employment

2.  the individual must follow and employer s procedures

For many years, this definition went relatively unchallenged by employers or government agencies.  Many employers defined an applicant as a job seeker interviewed for a position.  The employer collected race and gender information at the time of the interview.  Many of these employers passed OFCCP audits.

With the Internet, however, recruitment and selection changed dramatically.  Before the Internet, a recruiter might post an open position and received a handful of resumes mailed or delivered to the job site from job seekers in the local area.  After the Internet, the same posting might elicit thousands of resumes sent electronically from all over the country.  Government agencies began to question whether it was sufficient to collect EEO data at the interview after an employer had made one or several decisions about whether an individual job seeker was suitable for a position.  An inevitable conflict arose between employers and government agencies regarding when race and gender information should be solicited.  Was a person who posted his or her resume to an electronic job board an applicant?  Was a person who submitted a resume via e-mail to an employer s HR department an applicant?  What about the person that a recruiter found on a professional website?

The taskforce of UGESP agencies was created to address employers concerns about the burdens of collecting EEO data in the age of the Internet.  With hundreds or thousands of responses to a single job posting, employers needed guidance on collecting and maintaining EEO data when using the Internet to find employees.

On March 4, 2004, the UGESP taskforce published its proposed definition of an Internet applicant in the Federal Register.  A few weeks later, the OFCCP published its own proposed definition of an Internet applicant, offering additional guidelines for federal contractors.  Although the UGESP taskforce has not published its final rule, the OFCCP did so on October 7, 2005.

The Final Rule

The final rule defines an Internet applicant as an individual who satisfies four conditions:

    i) The individual submits an expression of interest in employment through the Internet or related electronic data technologies;

    ii) The contractor considers the individual for employment in a particular position;

    iii) The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,

    iv) The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

The first criterion, expressing interest in employment through the Internet or related electronic data technologies, remains substantively unchanged from the corresponding standard in the proposed definition.  The final rule specifies that the Internet or related electronic data technologies include e-mail, internal and external resume databases, job banks, electronic scanning technology, applicant tracking systems or service providers, and applicant screeners. 

The final rule clarifies that, as opposed to the UGESP taskforce s proposed definition[3], an individual does not have to express an interest in a particular position to be considered an applicant.  Individuals who have signed up with various job boards or submitted a profile to a general candidate pool could be considered applicants for any number of positions.  However, the final rule allows an employer to restrict the number of applicants through the use of data management techniques, such as random sampling.  In addition, the second criterion indicates that an employer must consider an individual for a position before the individual is identified as an applicant.  This criterion and data management techniques should help employers restrict the number of applicants.

The second criterion, that the employer considers the individual for a position, differs from the corresponding standard in the proposed definition by changing open position to position.   The OFCCP implemented this change to cover employers who may conduct searches for candidates to fill a position that will be open sometime in the future.  In the final rule, the OFCCP also defines considers an individual for employers.   An employer considers an individual for a position when it reviews the content of the individual s expression of interest as it relates to the qualifications of that position.   If an individual s resume or other expression of interest has never been examined, the individual is not an applicant under the OFCCP s definition. 

Under the second criterion, the OFCCP notes that an employer may develop and enforce policies and procedures related to which expressions of interest will or will not be considered.  For example, an employer may exclude expressions of interest submitted by e-mail or fax from consideration.  This provision gives employers some control over the number of applicants through its policies and procedures.  However, the OFCCP warns that an employer s actual practices may invalidate stated policy.  Suppose a recruiter considers one unsolicited resume for a position, in conflict with stated policy.  The OFCCP may claim that all individuals who submitted unsolicited resumes are applicants.

The third criterion states that an individual must meet basic qualifications for a position to be recognized as an applicant.  The OFCCP changed advertised, basic qualifications from the proposed rule to basic qualifications in the final rule.  Basic qualifications may be either advertised or established prior to considering anyone for a given position.  Analogous to the proposed rule, a basic qualification must be non-comparative, objective, and relevant to performance in the position and the accomplishment of business goals[4]. 

Possibly as a warning to employers, the OFCCP specifically notes that employment tests do not constitute basic qualifications.  Although employers may only collect EEO information on individuals who meet the basic qualifications of the position, employers are not immune to claims of adverse impact related to basic qualifications.  As part of its monitoring functions, the OFCCP will evaluate the impact of screening for basic qualifications.  The comparison of the racial and gender composition of the applicant pool to labor force estimates or previous litigation related to the impact of certain qualifications (e.g., height and weight requirements) may be used as evidence.    

For the fourth and last criterion, an individual must not indicate disinterest in further consideration for employment in a position, the OFCCP specifies three types of withdrawal:  active withdrawal, passive withdrawal, and withdrawal based on the content of the individual s expression of interest.  An individual may actively withdraw by explicitly stating that he/she no longer wishes to be considered for employment. An individual may passively withdraw by refusing to return phone calls or failing to show up for an interview.  Finally, if an individual s expression of interest contains salary requirements, location requirements, work schedule requirements, or other stipulations which do not match the position specifications, the individual will not be considered an applicant for that position.  Once again, the OFCCP warns employers that they must apply these criteria consistently.  For example, if an employer contacts individuals for a position despite incompatible salary requirements, the employer may not use incompatible salary requirements to narrow the pool of applicants for the purpose of soliciting race and gender information. 

In other comments, the OFCCP addresses record-keeping requirements and whether the definition of an Internet applicant applies to traditional applicants.  In regard to record-keeping, employers must save the following types of information on all individuals considered for employment in a position, not just the applicants:  basic qualifications for each position, all expressions of interest; search criteria used to identify potential applicants from internal or external candidate databases; and internal and external resumes[5].  However, these record-keeping requirements apply only to individuals considered for employment.

The OFCCP changed its position on traditional expressions of interest, such as paper resumes or application blanks.  According to the proposed definition, the original UGESP definition[6] and not the definition of an Internet applicant would apply to traditional applicants.  However, in the final rule, the OFCCP acknowledged that this could be burdensome and confusing if an employer allowed Internet and traditional methods of application for the same position.  Thus, the OFCCP provided that employers who allow expressions of interest over the Internet or by traditional methods for a given position may apply the final definition of an Internet applicant to both Internet and traditional applicants. The original UGESP definition of an applicant applies for positions where an employer accepts only traditional, non-electronic methods of indicating an interest.

Employers can prepare for February 2006 in several ways.  First, employers should set specific policies and procedures indicating which expressions of interest will be considered.  Employers may stipulate that individuals must indicate a specific position of interest, must apply electronically, or must provide particular information.  This will limit applicants to those who follow these policies and procedures, as long as the policies and procedures are consistently applied. 

Second, employers need to ensure that they have the technology to gather and maintain expressions of interests, basic qualifications for all positions, search criteria and results, transaction dates and resume information from internal or external sources of candidate information.  Finally, employers who use basic qualifications as a pre-screen need to make sure that these qualifications are non-comparative, objective and related to position performance and meeting business goals.