By Michael D. Giford, Esq.  

I. INTRODUCTION

 Assume an all too plausible scenario: Harold Happyman is HR Manager for AnyTown Bank Corp.  AnyTown is small, but still qualifies as a federal contractor for purposes of federal Affirmative Action and Office of Federal Contract Compliance Programs (OFCCP) regulations.    The bank has low turnover and a fairly stable work force of approximately 70 persons.  Life is good.  Harold’s neighbor, Joe, has a bright 22 year old daughter, Jane, getting ready to graduate from a prestigious educational institution, but wants to come home rather than heading for Big City.  Joe asks Harold to help Jane find a job.  Harold knows he does not have a position for her, but does not want to offend and replies: “Sure, have her contact me.”  Although the bank hires strictly from traditional paper applications submitted in person or by mail, Jane e-mails her resume to Harold.  He opens it, reviews it briefly, sees that she has no banking or business experience and flunked several basic math classes, but still expects a salary equal to his and decides to go no further.  He replies by e-mail: “Thank you for your resume. We do not have open positions at this time and, unfortunately, I do not think you would fit any of the positions we might have coming open any time soon.  I wish you good luck in your job search.”

 Harold may soon become a very unhappy man.  With the broad reach of the new OFCCP Internet Applicant regulations, effective February 6, 2006, he has probably just brought much of his current and future hiring within those regulations, even if he never accepts another e-mailed resume.  All federal contractors must be aware of these new regulations.  Depending on the extent to which your institution utilizes the Internet or other electronic media to hire, these regulations may require anything from a careful defensive posture to keep you out of their reach, to extensive procedures for compliance if you must operate within their requirements.

II. THE REGULATIONS

 These new regulations, for the first time, define the job applicants from whom demographic information must be solicited and maintained.  Under the traditional OFCCP guidelines, still applicable to positions where the new Internet Applicant rule does not apply, the definition of applicant is left to the employer.  The new rule defines internet applicant as follows:

1. An individual who submits an expression of interest in employment through the Internet or related electronic data technologies;

2. The contractor considers that individual for employment in a particular position;

3. The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and

4. 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.

 Two different obligations are triggered as an individual progresses through these elements.  For individuals who meet the first two criteria, effectively an Internet candidate, the employer is required to keep the expression of interest and others records and communications related to such candidates.  Only those who meet all four criteria are labeled Internet applicants, for whom the employer also has a duty to solicit and maintain information on gender, race and ethnicity.

III. THE DEFINITIONS

The highlighted language suggests that, just as the devil is in the details, the key here is in the definitions.

• Expression of interest is not limited to filling out an application or similar affirmative act by the job seeker.  Expression of interest can include communication through the employer’s web site or online application process, but also encompasses sending e-mail, or posting in an online resume database or job bank.  The candidate need not express interest directly or specifically to the employer: posting a resume with an online service which the employer then reviews, even without the job seeker’s knowledge, qualifies.  The expression of interest is as to employment in general and does not have to be related to a specific position.

• Where an employer accepts and considers both electronic and traditional/paper expressions of interest for employment, the expressions are commingled into a single candidate pool, all of whom are then subject to the Internet Applicant rule.  With the example above, Harold, by considering Jane’s e-mailed resume, has effectively commingled her with all traditional job seekers for any position for which she was considered, thereby imposing the new Internet Applicant rule as to all of those job seekers.

• The employer considers the job seeker when it makes an “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.”  The position need not be open at that time.  In the example above, Harold should determine for which positions he considered Jane, because as to each, the employer is now required to adhere to the Internet Applicant rule. This would include positions for which he immediately determined, after even a cursory review of her resume, that she was not qualified.

• Basic qualifications are those 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.

• Where an expression of interest, including electronic and commingled traditional expressions, demonstrates the basic qualifications for a position, and the candidate does nothing to remove herself from consideration, she is now an Internet Applicant and the gender, race and ethnicity information should be solicited.  Basic Qualifications must be: 1.) noncomparative; 2.) objective; and 3.) relevant to performance of the particular position. 

• Employers may search external databases for candidates utilizing one or more the basic qualifications as screening tools and add, in steps, any remaining, pre established basic qualifications.  Only those remaining after the final screening meet the basic qualifications criteria, but the employer must keep records of the search and the specific steps taken. If an initial search is of only certain qualifications and the additional qualifications are not added in subsequent steps, the pool of candidates generated by the original, albeit incomplete, search are considered to have met the basic qualifications.

• Candidates can remove themselves from consideration pursuant to criteria 4, either by a direct statement of disinterest, by failing to respond to inquiries, or by including statements in their expression of interest which are inconsistent with the position, such as salary requirements, or position or location preferences.  Jane, in the example above, disqualified herself with her salary requirements and does not progress to the level of an Internet Applicant for that reason. 

• Although Jane disqualified herself and is not an Internet Applicant, anyone who meets all four criteria for any position for which she was considered, even in the briefest manner, is an Internet Applicant, regardless of the manner of application.

IV. RECORD RETENTION
 OFCCP requires retention of records relating to candidates (those meeting criteria 1 & 2) and, additionally, solicitation of information from applicants (those meeting all 4 criteria).  Employers must keep records relating to individual candidates, including communications, tests and test results and interview notes.  Employers must also keep detailed records of their own internal databases, including listing all resumes added and the dates of inclusion, and details regarding specific searches, and as to external databases, must keep records regarding their searches, the dates of searches, the positions for which they were conducted and the resumes of any persons who survived screening based upon basic qualifications.  This employer collected data may someday be utilized in a disparate impact analysis examining the employer’s hiring patterns.

V. EMPLOYER PROTECTION
 Not all employers use electronic means to locate and screen candidates for employment. A recent Indiana Bankers Association poll suggested approximately one third of the responders either use or are considering online employment applications while the remaining two thirds do not (Insta-Poll, Feb. 10, 2006).  Those responding negatively are not fully in the clear: Harold in our example above had a ‘paper only’ policy, yet considered Jane’s e-mailed resume and, in so doing, ran afoul of the new rule.

 To put themselves fully beyond the reach of this regulation, employers must adopt and adhere to a policy that they will not consider for any position any job seeker other than those who submit traditional applications consistent with the employer’s policy.  That may be a viable policy for some employers; for others it clearly is not.  Having adopted that policy, the employer cannot accept any expression of interest electronically, nor can it review any electronic or internet based database regarding potential candidates.  Harold effectively negated AnyTown’s policy by accepting and considering Jane’s e mailed resume.

For those employers who do accept and consider electronic expressions of interest, they should begin immediately to bring their policies into compliance with the new regulations.  OFCCP will grant a 90 day extension to those making serious efforts at compliance, but the task is large and the time short.  A concerted effort involving human resources, information technology and all managers involved in hiring will be necessary to craft and live with a policy compliant with the new regulations. 

Michael Gifford is a member of the Labor & Employment Group at Howard & Howard. He  represents employers in a wide variety of labor and employment matters. For more information, please  contact Michael Gifford at (309) 672-1483 or email  mdg@h2law.com.

Copyright 2005 Howard & Howard Attorneys, P.C. This publication is intended to provide information only and does not constitute legal advice.