OFCCP Publishes Final Rule on Internet Applicants

October 14, 2005

On October 7, the U. S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published its final Rule addressing concerns about the use of the internet and electronic data technologies in Federal Contractors' recruiting and hiring processes. The OFCCP is charged with enforcing Executive Orders requiring that certain Federal Contractors develop written Affirmative Action Plans and keep records concerning the race and gender of applicants. Just who is an "applicant" in this era of paperless communication has been the subject of considerable debate.

The new Rule, which goes into effect February 6, 2006, clarifies the definition of an "applicant" with respect to people who apply for jobs electronically and explains when a Federal Contractor must collect gender and racial data for those applicants.

Under the new Rule, to be considered an internet applicant a person must:

  1. submit an expression of interest in employment through the internet or related electronic data technologies;
  2. be considered by the contractor for employment in a particular position;
  3. possess the basic qualifications for the position;
  4. not remove himself or herself from further consideration or otherwise indicate that he or she is no longer interested in the position.

"Internet and related electronic data technologies" are defined to include e-mail, commercial and internal resume databanks, and the employer’s Web site. The Rule gives contractors broad discretion to determine the basic qualifications for a job. The qualifications must be established in advance, must be non-comparative, objective, and relevant to the position.

Somewhat confusingly, the new Rule defining internet applicants may also apply to non-electronic expressions of interest. If contractors only consider expressions of interest submitted on paper, old standards apply. However, if contractors consider both electronic and paper submissions, the new rule applies to all potential applicants.

Covered Federal Contractors should carefully review both their paper and internet application process to ensure that information on race and gender is being properly gathered and maintained. In addition, because the new rule gives contractors greater ability to control who qualifies as an applicant, those contractors who do not currently accept electronic submissions may want to consider doing so. For help in reviewing your application process, or for drafting and reviewing Affirmative Action Programs, please contact a Frost Brown Todd Labor and Employment Department attorney.

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