The New OFCCP Internet Applicant Recordkeeping Rule Purpose of the Rule Defines “Internet Applicant” – a job seeker applying for work through the Internet or related electronic data technologies from whom contractors must solicit demographic information
The New OFCCP Internet Applicant Recordkeeping Rule
applying for work through the Internet or
related electronic data technologies from whom
contractors must solicit demographic information
about hiring done through use of the Internet or
related electronic data technologies
contractors to produce when evaluating whether
a contractor has maintained information on
adverse impact and conducted an impact
analysis under the Uniform Guidelines on
Employee Selection Procedures (UGESP)
race, ethnicity, and gender data from
all individuals who are “applicants”
to solicit race, ethnicity, and gender
point in the selection process that contractors
must solicit this demographic information, so
long as the information is solicited from all
voluntarily collecting data from job seekers who
are not applicants, as long as such information
is used only for purposes of the contractor’s
affirmative action and equal employment
Four criteria must be satisfied in order for a job seeker to be considered an “Internet Applicant”
Job seeker submits an expression of interest in employment through the Internet or related electronic data technologies
While the rule does not specifically define the term “Internet or related electronic data technologies” because technology is rapidly evolving, the preamble refers to the following examples: email, resume databases, job banks, electronic scanning technology, applicant tracking systems/applicant service providers, and applicant screeners.
on a commercial resume database
is generally sufficient to satisfy the
“expression of interest” requirement.
“Internet Applicant” unless all four
criteria are satisfied.
regardless of the means or manner in
which made, if the contractor considers
expressions of interest made through
Internet or related electronic data
technologies in the recruiting or
selection processes for that particular
What if the contractor considers both electronic & paper express-ions of interest?
When a contractor considers expressions of interest via both the Internet or related technologies and paper applications, the “Internet Applicant” rule applies.
What if the contractor does not use the Internet or consider any electronic submissions?
contractor does not use the Internet
or related electronic data technologies,
the traditional (paper) OFCCP record-
keeping standards apply.
information from job seekers who are
applicants under the definition of
“applicant” contained in UGESP Q&A 15.
The contractor “considers the individual for employment in a particular position” means the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.
“Under this definition, ‘considers’ involves the assessment of the job seeker’s qualifications against any qualifications of a particular position, including a determination of whether a job seeker meets the basic qualifications for the position.”
-- Preamble to Applicant Final Rule
Contractors may establish protocols under
which they will refrain from considering
are not followed
Actual practice must consistently and uniformly follow the protocol.
If there are a large number of expressions of interest, a contractor may use data management techniques to reduce the number considered. For example:
The sample must be appropriate in terms of the pool of those submitting expressions of interest – i.e., does not produce a disparate impact and is facially neutral.
The expression of interest must indicate that the individual possesses the basic qualifications for the position.
as necessary in order to be
considered for the position; or
established in advance by making
and maintaining a record prior to
considering any expression of
interest for that particular position
(e.g., simple external database
Must also be:
e.g., three years experience
e.g., top five most experienced
degree in accounting
degree from a “good school”
Relevant to performance of the particular position and enables the contractor to accomplish business-related goals.
qualifications” by searching for the qualifications
serially or in combination.
qualifications” and screen for the remaining “basic
qualifications” through other means (e.g., by
all, of the basic qualifications and not screen further for
the remainder of the qualifications. If so, the contractor
must solicit demographic data for individuals meeting
the “basic qualifications” actually used for screening
job seekers, provided the other applicant criteria are met.
job database with 50,000 job seekers for
3 basic qualifications for a bi-lingual
emergency room nursing supervisor job:
basic qualifications narrows the
pool to 10,000.
established, basic qualification, 3 years
of emergency room nursing experience,
and narrows the pool to 1,000.
established, basic qualification, 2 years
of supervisory experience, which results
in a pool of 75 job seekers.
meeting all five basic qualifications would
be Internet Applicants, assuming the
other three prongs of the “Internet
Applicant” definition were met.
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 consideration or otherwise indicates that he or she is no longer interested in the position.
to location of work
* Provided the sample is appropriate in terms of the pool of those meeting basic qualifications – i.e., does not produce a disparate impact and is facially neutral.
regarding the hiring process is not
a new obligation for contractors.
applies more broadly than the
requirement to solicit demographic
information from “Internet
of interest through the Internet or related
electronic data technologies as to which the
contractor considered the individual for a
particular position, except for expressions of
interest from external resume databases.
must retain all expressions of interest considered
for individuals who meet the basic qualifications
for a particular position, even those of
individuals who are not Internet Applicants.
Internal Databases – contractor must maintain a record of:
used in the search
External databases – contractor must maintain a
qualifications for the particular position who are
considered by the contractor (even if they do
not qualify as Internet Applicants)
regarding their interest in a particular position
applicant or Internet Applicant, whichever is
When evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under UGESP (41 CFR Part 60-3) with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the adverse impact of employee selection procedures on Internet Applicants, as defined in this rule, and analyses of tests used as employee selection procedures, regardless of whether the test takers were Internet Applicants.
“OFCCP is proposing a definition of applicant for the limited purposes of OFCCP recordkeeping and data collection requirements pursuant to Executive Order 11246. Accordingly, OFCCP is not purporting to define who is an applicant for any purposes which would affect the substantive interests of any individual, such as for purposes of litigation of employment discrimination claims under any federal, state, or local anti-discrimination statute.”
- Preamble to Applicant Final Rule
market data to assess a contractor’s hiring
practices for potential discrimination and
will carefully review the basic qualifications
limited to an evaluation of those records
produced by the contractor. OFCCP will look
broadly at all aspects of a contractor’s
compliance with its nondiscrimination
obligations, including the possible adverse
impact of screens for basic qualifications.
February 6, 2006.
(AAP), contractors are required to analyze
personnel activity data to determine
whether there are selection disparities.
The new recordkeeping requirements
(in 60-1.12) will apply to data on hiring
decisions made on or after February 6,
2006. AAPs created before February 6,
2006 will not need to be amended.