OFCCP Sets Forth Obligations Related to Internet Applicants
Continuing its shift in focus from affirmative action to developing tools to fight discrimination, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a final regulation requiring all federal contractors to solicit race and gender data from all “Internet applicants” by defining what “Internet applicant” means and establishing new record retention requirements. This does not change any rules for jobs filled through traditional means such as paper applications and hard-copy resumes.
An individual is deemed an “Internet applicant” if all of the following criteria are met:
(1) The individual expresses interest in employment through the Internet or “related electronic data technologies” (e.g., e-mail, online resume database, job bank, applicant screening service);
(2) The contractor considers the individual for a particular position;
(3) The expression of interest indicates that the individual has the basic objective qualifications for the position;
(4) The individual has not removed himself or herself from further consideration or otherwise indicated that he or she is no longer interested in the position.
Contractors must retain various records on applicants who are considered for a particular position, including all electronic expressions of interest, for a two-year period. Even a casual review of a resume on an external Web site or a friend passing the resume along through e-mail needs to be reported if the person is considered for a particular position. The regulation also requires contractors to keep certain information related to internal and external resume databases.
Contractors are not required to consider or retain expressions of interest that are not submitted in accordance with the contractor’s standard hiring procedure. A contractor may establish a protocol of not considering expressions of interest that are not submitted for a particular position, such as unsolicited resumes. A contractor may also use data management techniques to reduce the number of expressions considered.
If a contractor accepts only hard-copy resumes or applications for a position, then the new regulation does not apply. However, if the contractor accepts both paper and electronic submission, then the new regulation applies to all expressions of interest in the position, including non-electronic ones.
The regulation requires contractors to maintain records that identify, “where possible,” the gender, race, and ethnicity of each applicant or Internet applicant. The OFCCP considers applicant self-reporting or self-identification as the preferred method for collecting such data. Visual observation may be used when the applicant appears in person and declines to self-identify. For more information on the OFCCP’s policy on contractor tracking of applicant data, click here.
The regulation takes effect on February 6. To view the full text of the regulation, click here. For guidance on other OFCCP issues, click here. To purchase AGC’s Affirmative Action Manual for Construction, revised in 2005, click here.
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