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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

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Presentation Transcript
slide2

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

  • Prescribes the records contractors must maintain

about hiring done through use of the Internet or

related electronic data technologies

  • Explains the records OFCCP will require

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)

slide3

Collection of Demographic Data

  • Contractors are required to solicit

race, ethnicity, and gender data from

all individuals who are “applicants”

for employment.

  • The rule imposes no new obligation

to solicit race, ethnicity, and gender

data.

slide4

Collection of Demographic Data (cont’d)

  • The rule does not mandate a specific time or

point in the selection process that contractors

must solicit this demographic information, so

long as the information is solicited from all

applicants.

  • Nothing in the rule precludes a contractor from

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

opportunity programs.

slide5

Definition of Internet Applicant

Four criteria must be satisfied in order for a job seeker to be considered an “Internet Applicant”

slide6

Four Criteria

  • Individual submits expression of interest through Internet or related electronic data technologies
  • Contractor considers individual for employment in a particular position
  • Individual’s expression of interest indicates basic qualifications for position
  • Individual does not remove him/herself from consideration prior to job offer
slide7

1. Expression of Interest

Job seeker submits an expression of interest in employment through the Internet or related electronic data technologies

slide8

Internet 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.

slide9

Expression of Interest (cont’d)

  • An individual’s posting of a resume

on a commercial resume database

is generally sufficient to satisfy the

“expression of interest” requirement.

  • Note: an individual is not an

“Internet Applicant” unless all four

criteria are satisfied.

slide10

Expression of Interest (cont’d)

  • Includes all expressions of interest,

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

position.

slide11

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.

slide12

What if the contractor does not use the Internet or consider any electronic submissions?

  • For those positions for which the

contractor does not use the Internet

or related electronic data technologies,

the traditional (paper) OFCCP record-

keeping standards apply.

  • I.e., contractors must solicit demographic

information from job seekers who are

applicants under the definition of

“applicant” contained in UGESP Q&A 15.

slide13

2. Considers

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.

slide14

Considers (cont’d)

“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

slide15

Protocols

Contractors may establish protocols under

which they will refrain from considering

  • expressions of interest where:
  • Standard submission procedures

are not followed

  • Resumes are not submitted for a

particular position

Actual practice must consistently and uniformly follow the protocol.

slide16

Data Management

If there are a large number of expressions of interest, a contractor may use data management techniques to reduce the number considered. For example:

  • Random sampling
  • Absolute numerical limits

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.

slide17

3. Basic Qualifications

The expression of interest must indicate that the individual possesses the basic qualifications for the position.

slide18

Basic Qualifications (cont’d)

  • Advertised to potential applicants

as necessary in order to be

considered for the position; or

  • If the position is not advertised,

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

searching)

slide19

Basic Qualifications (cont’d)

Must also be:

  • Noncomparative
  • Objective
  • Relevant
slide20

Non-comparative vs. Comparative Qualification

  • Noncomparative qualification –

e.g., three years experience

  • Comparative qualification –

e.g., top five most experienced

candidates

slide21

Objective vs. Subjective Qualification

  • Objective – e.g., a Bachelor’s

degree in accounting

  • Subjective – e.g., a business

degree from a “good school”

slide22

Relevant Qualification

Relevant to performance of the particular position and enables the contractor to accomplish business-related goals.

slide23

Basic Qualifications (cont’d)

  • Contractor may search a database for all “basic

qualifications” by searching for the qualifications

serially or in combination.

  • Contractor may search a database for some “basic

qualifications” and screen for the remaining “basic

qualifications” through other means (e.g., by

e-mailing candidates).

  • Contractor may search a database for some, but not

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.

slide24

Example of Basic Qualification Search

  • A contractor initially searches an external

job database with 50,000 job seekers for

3 basic qualifications for a bi-lingual

emergency room nursing supervisor job:

  • a 4-year nursing degree,
  • state certification as an RN, and
  • fluency in English and Spanish.
  • The initial screen for the first three

basic qualifications narrows the

pool to 10,000.

slide25

Example of Basic Qualification

Search (cont’d)

  • The contractor then adds a fourth, pre-

established, basic qualification, 3 years

of emergency room nursing experience,

and narrows the pool to 1,000.

  • Finally, the contractor adds a fifth, pre-

established, basic qualification, 2 years

of supervisory experience, which results

in a pool of 75 job seekers.

  • Under the rule, only the 75 job seekers

meeting all five basic qualifications would

be Internet Applicants, assuming the

other three prongs of the “Internet

Applicant” definition were met.

slide26

4. Continued Interest

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.

slide27

Lack of Continuing Interest

  • Express statement of disinterest
  • Failure to respond to contractor’s inquiries
  • Statements made in the expression of

interest indicating:

  • Incompatible salary requirements
  • Incompatible preferences as to
  • position or type of work
    • Incompatible preferences as

to location of work

slide28

Data Management

  • If there are large numbers of job seekers meeting basic qualifications, data management techniques may be used to reduce the number of job seekers who must be contacted to discern interest in the position. For example:
  • Random sampling
  • Absolute numerical units

* 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.

slide29

Record Retention

  • The requirement to retain records

regarding the hiring process is not

a new obligation for contractors.

  • The requirement to retain records

applies more broadly than the

requirement to solicit demographic

information from “Internet

Applicants.”

slide30

Retention of Expressions of Interest

  • Contractors must keep any and all expressions

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.

  • For external resume databases, contractors

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.

slide31

Record Retention (cont’d)

Internal Databases – contractor must maintain a record of:

  • Each resume added to database
  • Date each resume was added
  • Position for which each search

was made

  • The substantive search criteria

used in the search

  • Date of the search
slide32

Record Retention (cont’d)

External databases – contractor must maintain a

  • Position for which each search was made
  • Substantive search criteria used in each search
  • Date of search
  • Resumes of any job seekers who met the basic

qualifications for the particular position who are

considered by the contractor (even if they do

not qualify as Internet Applicants)

slide33

Record Retention (cont’d)

  • All tests and test results
  • All interview notes
  • Records identifying job seekers contacted

regarding their interest in a particular position

  • The race, gender, and ethnicity of each

applicant or Internet Applicant, whichever is

applicable

slide34

Recordkeeping on Impact

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.

slide35

Discrimination Analysis

“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

slide36

Enforcement

  • OFCCP will rely on census and other labor

market data to assess a contractor’s hiring

practices for potential discrimination and

will carefully review the basic qualifications

themselves.

  • OFCCP’s compliance evaluations will not be

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.

slide37

Effective Date

  • The final rule becomes effective

February 6, 2006.

  • As part of their affirmative action programs

(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.

slide38

Effective Date Enforcement

  • Under OFCCP’s enforcement discretion, for a period of 90 days following February 6, 2006, OFCCP will not cite a contractor for a purely technical recordkeeping violation for failure to comply with the final rule, provided that the contractor:
    • (1) demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and
    • (2) collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule, i.e., 41 CFR 60-1.12.  
slide39

For Additional Information

Visit OFCCP’s website:

http://www.dol.gov/esa/ofccp/

You can contact OFCCP through the public mailbox at:

OFCCP-Public@dol.gov