The New OFCCP Internet Applicant Recordkeeping Rule

1
The New OFCCP Internet Applicant Recordkeeping
Rule
This outline is meant to assist in a general
understanding of the current law relating to
OFCCP compliance. It is not to be regarded as
legal advice. Companies or individuals with
particular questions should seek advice of counsel
2
History

• Title VII of the Civil Rights Act of 1964
• It shall be unlawful to fail or refuse to hire or
  to discharge or discriminate against any
  individual with respect to compensation, terms,
  conditions, or privileges of employment, because
  of race, color, religion, sex, of national
  origin

3
History

• Title VII of the Civil Rights Act of 1964
• It shall be unlawful to limit, segregate, or
  classify employees or applicants for employment
  in any way which would deprive or tend to deprive
  any individual or employment opportunities
  because of race, color, religion, sex, or
  national origin

4
History

• Executive Order (EO) 11246
• The federal contractor will not discriminate
  against any employee or applicant for employment
  because of race, color, religion, sex, or
  national origin
• The federal contractor will take affirmative
  action to ensure that applicants are employed
  without regard to their race, color, religion,
  sex or national origin

5
History

• Who is a contractor under EO 11246?
• Basic anyone who does 10K or more of work
  (cumulative) with an agency in the executive
  branch of the federal government
• Affirmative Action Obligation anyone with 50 or
  more employees who does 50K or more of work
  (single contract) with an agency in the executive
  branch of the federal government
• Federal contractors/subcontractors employ nearly
  22 of the civilian workforce

6
History

• EEOC enforces Title VII, but does not have
  authority to issue rules (i.e. regulations),
  which have binding force of law, but can
  interpret Title VII through guidelines
• OFCCP enforces EO 11246, and does have the
  authority to issue rules (i.e. regulations)

7
History

• 1978 DOL-OFCCP (EEOC signed on) published Uniform
  Guidelines on Employee Selection Procedures
  (UGESP) to interpret Title VII and EO
  11246operates as a rule (i.e. regulation) to
  covered federal contractors/subcontractors
• 1979 DOJ/DOL-OFCCP (EEOC signed on) published
  Questions and Answers (1-90) to interpret UGESP,
  Title VII, and EO 11246

8
History

• 1980 DOJ/DOL-OFCCP (EEOC signed on) published
  more Questions and Answers (91-93) to further
  interpret UGESP, Title VII, and EO 11246
• Only QA 15published in 1979specifically
  addresses applicants
• July, 2000, Office of Management and Budget (OMB)
  asked EEOC to address the issue of how the use of
  the Internet by employers affects recordkeeping
  obligations

9
History

• 2004 DOJ/DOL-OFCCP (EEOC signed on) adopted
  additional proposed Questions and Answers
  (94-98) to further interpret UGESP, Title VII,
  and EO 11246
• EEOC/DOJ/OFCCP published Interpretive guidance on
  March 4, 2004
• OFCCP published proposed rule on March 29,
  2004confirmed in part, went beyond in part,
  Interpretive Guidance

10
History

• EEOC/DOJ/OFCCP have not yet published UGESP QAs
  94-98 in final form
• Final regulations published by OFCCP on October
  7, 2005legally effective on February 16, 2006
• Final Rule has binding force and effect of law
  (as if congress had passed a law)

11
History

• Major difference between proposed QAs and Final
  Rule is that the OFCCP has definitively stated
  that a person is not an Internet applicant
  unless, among other things, they possess the
  basic qualifications for the position in question.

12
Internet Applicant (IA) Rule

• The rule must be faithful to Title VII and EO
  11246 substantive law of EO 11246 must equal
  substantive law of Title VII
• Limits OFCCPs investigative and prosecutorial
  discretion (even if the administration changes)

13
Purpose of the IA 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

14
Purpose of the IA Rule

• 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)

15
Internet Applicant (IA) Rule

• Four major changes for contractors
• Created the notion of internet applicant and
  defined the term
• Amended OFCCPs Y2K record retention requirements
  to require retention and expression of interest
  from internet applicants
• Sets out what OFCCP rule do to undertake adverse
  impact analysis of internet applicants
• Requires contractors to solicit race, sex, and
  ethnicity from internet applicants

16
Internet Applicant (IA) Rule

• Also created new terms of use
• Internet applicant
• Related internet technologies
• Expressions of interest
• Internal resume database
• External resume database
• Basic qualifications

17
Collection of Demographics

• 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

18
Collection of Demographics

• 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

19
Collection of Demographics

• 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 contractors
  affirmative action and equal employment
  opportunity programs

20
Internet Applicant Defined

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

21
Internet Applicant Defined

• An individual is not an Internet Applicant
  unless all four criteria are satisfied

22
1. Expression of Interest

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

23
Internet Technologies
1. Expression of Interest

• 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

24
1. Expression of Interest

• An individuals posting of a resume on a
  commercial resume database is generally
  sufficient to satisfy the expression of
  interest requirement

25
Paper or Electronic?
1. Expression of Interest

• When a contractor considers expressions of
  interest via both the Internet or related
  technologies and paper applications, the
  Internet Applicant rule applies.

26
Paper only?
1. Expression of Interest

• For those positions for which the contractor does
  not use the Internet or related electronic data
  technologies, the traditional (paper) OFCCP
  recordkeeping standards apply (i.e., contractors
  must solicit demographic information from job
  seekers who are applicants under the definition
  of applicant contained in UGESP QA 15)

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1. Expression of Interest

• CO-MINGLING
• CONTEXT
• EXAMPLE

28
1. Expression of Interest

• CONVERTED
• FROM
• PAPER
• EXAMPLE

29
1. Expression of Interest

• PURE
• PAPER
• EXAMPLE

30
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

31
2. Considers
Protocols

• Contractors may establish protocols under
• which they will refrain from considering
• expressions of interest where

32
2. Considers
Protocols

• Standard submission procedures are not followed
• Unsolicited resumes that are not submitted for a
  particular position

33
2. Considers
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

34
2. Considers
Data Management

• Random sampling
• Absolute numerical limits

35
3. Basic Qualifications

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

36
3. Basic Qualifications

• Advertised to potential applicants as necessary
  in order to be considered for the position
• 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)

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3. Basic Qualifications

• Qualifications must be advertised or established
  in advance
• Qualifications must be
• Noncomparative
• Objective
• Relevant

38
3. Basic Qualifications

• Qualifications must be
• Noncomparative
• Noncomparative 3 yrs experience
• Comparative top five most experienced
  candidates
• Objective
• Relevant

39
3. Basic Qualifications

• Qualifications must be
• Noncomparative
• Objective
• Objective bachelors degree in accounting
• Subjective a business degree from a good
  school
• Relevant

40
3. Basic Qualifications

• Qualifications must be
• Noncomparative
• Objective
• Relevantto the performance of the particular
  position and enables the contractor to accomplish
  business-related goals

41
3. Basic Qualifications

• Pre-employment tests are not basic
  qualifications
• Multiple basic qualification screens are
  permissible

42
3. Basic Qualifications

• 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

43
Search Example
3. Basic Qualifications

• 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

44
Search Example
3. Basic Qualifications

• The initial screen for the first three basic
  qualifications narrows the pool to 10,000
• The contractor then adds a fourth,
  pre-established, basic qualification, 3 years of
  emergency room nursing experience, and narrows
  the pool to 1,000

45
Search Example
3. Basic Qualifications

• 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

46
4. Continued Interest

• The individual at no point in the contractors
  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

47
4. Continued Interest
Lack of Continuing Interest

• Express statement of disinterest
• Failure to respond to contractors inquiries
• Statements made in the expression of interest
  indicating

48
4. Continued Interest
Lack of Continuing Interest

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

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4. Continued Interest
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 (such as random sampling and absolute
  numerical limits).

50
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

51
Record Retention

• 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 (such as online resumes or
  internal resume databases, records identifying
  job seekers contacted regarding their interest).

52
Record Retention
Internal Databases

• Contractors 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

53
Record Retention
External Databases

• Contractors must maintain a record of
• 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)

54
Record Retention

• Contractors must maintain a record of
• 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

55
Impact Analysis Records

• 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.

56
Effective Date

• The Final Rule went into effect on February 6,
  2006
• As part of their affirmative action programs,
  contractors are required to analyze personnel
  activity data to determine selection disparities.
  The new recordkeeping requirements 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.

57
Enforcement

• OFCCP will rely on census and other labor market
  data to assess a contractors hiring practices
  for potential discrimination and will carefully
  review the basic qualifications themselves

58
Enforcement

• OFCCPs 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 contractors
  compliance with its nondiscrimination
  obligations, including the possible adverse
  impact of screens for basic qualifications

59
Enforcement

• Trends
• 2005, OFCCP collected over 45 million for 14,700
  employment discrimination claimants
• 45 million is a 31 increase from 2004
• 14,700 claims is a 56 increase from 2001

60
Issues and Answers

• Is it an internet applicant if a person meets all
  four elements and the contractor considers the
  person NOW for a position not yet open?
• Yes the word open was deleted from the
  proposed regulation.

61
Issues and Answers

• May a contractor exclude from the definition of
  internet applicant a person who submits an
  expression of interest but fails to identify a
  particular position in which they are interested?
• Yes contractor may establish protocols under
  which it refrains from considering expressions of
  interest.

62
Issues and Answers

• Is it an internet applicant if the contractor
  uses appropriate data management techniques and
  as a result does not consider the individual for
  employment in a particular position?
• No, such a person is not an internet applicant.

63
Issues and Answers

• When accessing an external database, may i search
  using sequential qualification requirements
  without running the risk of having to retain all
  resumes provided in response to the earlier
  qualification queries?
• It depends on how you search you own the answer.

64
Issues and Answers

• If I search monster.com and download resumes for
  retention and consideration, how will I know the
  race, sex, and/or ethnicity of those internet
  applicants since I will have all their resumes?
• Again, it depends on how you search you own the
  answer.

65
Issues and Answers

• Do contractors need to rewrite all their job
  descriptions to reference basic qualifications?
• No.  Basic qualifications for a position could
  be, but are not required to be, stated in a job
  description.

66
Issues and Answers

• Can the basic qualifications be modified during
  the selection process, or do they need to be set
  prior to the beginning of the process?
• All basic qualifications must be established
  prior to the selection process. Basic
  qualifications are the qualifications advertised
  to potential applicants as being required in
  order to be considered for the position.

67
Issues and Answers

• What do contractors do with searches for basic
  qualifications of an external resume database
  that produce false positives? For example if a
  search was made of an external database for a
  computer programmer with JAVA experience, the
  search results may include people with coffee
  shop java experience. Is the contractor obligated
  to retain all resumes produced by the JAVA search?

68
Issues and Answers

• No.  Only those individuals with computer
  programmer JAVA experience would meet the basic
  qualification. Those with only coffee house java
  experience would not possess the basic
  qualifications. Accordingly, the company would
  not be required to retain the resumes of those
  with only coffee shop experience.

69
Issues and Answers

• Does a contractor "consider" an individual merely
  by running a (basic qualifications) search that
  brings up the individual's resume, if the
  contractor never opens the resume?
• If the contractor does not open the resume as a
  result of appropriate data management techniques
  that limit the number of resume "hits" that are
  reviewed, then the contractor has not
  "considered" that individual.

70
Issues and Answers

• If a covered employer contracts with an
  employment agency to screen and refer job seekers
  using the employer's selection procedures, what
  records must be maintained?
• The contractor's recordkeeping obligations are
  the same whether it screens job seekers itself or
  whether it contracts with an employment agency to
  screen job seekers on its behalf with the
  employer's selection procedures.

71
Issues and Answers

• Can a contractor ask a recruiting firm to keep,
  on its behalf, the records required by the
  Internet Applicant Final Rule?
• The use of a recruiting firm in the hiring
  process does not relieve a contractor of its
  recordkeeping obligations under 41 CFR 60-1.12
  the contractor will be held accountable if the
  specified records are not maintained.

72
Issues and Answers

• Can contractors make the self-identification of
  race, gender and ethnicity part of the
  registration process individuals complete to post
  their resume on a database?
• Yes, provided that completing such
  self-identification is voluntary and failure to
  do so would not prevent the individual from
  posting his or her resume.

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QUESTIONS
74
Chad Richterchadr_at_berenstate.com
10050 Regency Circle, Suite 400 Omaha, NE
68114 402.391.1991 Email berens_at_berenstate.com We
bsite www.berenstate.com