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Newsletter Issue 8


Practical Approaches
to Resolving EEO/AA Problems
Issue #8
 
Discussion of the Internet Applicant
OFCCP has given us a definition of an Internet applicant in an effort to recognize the difficulties employers experience in determining who is a valid applicant. The following is the OFCCP definition and is found at CFR 60-1.3:

Internet Applicant means any individual to whom the following four criteria are satisfied.
  • The individual submits an expression of interest in employment through the Internet or related electronic data technologies:
  • The contractor considers the individual for employment in a particular position;
  • The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and
  • 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.
For purposes of paragraph (1)(i) of this definition, ‘‘submits an expression of interest in employment through the Internet or related electronic data technologies,’’ includes all expressions of interest, regardless of the means or manner in which the expression of interest is made.

As long as the employer accepts both Internet and traditional paper resumes as expressions of interest in a job, both Internet and traditional paper resumes are true applicants for the position.

For purposes of paragraph (1)(ii) of this definition, ‘‘considers the individual for employment in a particular position,’’ means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position. A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes.

Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not ‘‘consider the individual for employment in a particular position’’ by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.

For purposes of paragraph (1)(iii) of this definition, ‘‘basic qualifications’’ means qualifications—(i)(A) That the contractor advertises (e.g., posts on its web site a description of the job and the qualifications involved) to potential applicants that they must possess in order to be considered for the position, or (B) For which the contractor establishes criteria in advance by making and maintaining a record of such qualifications for the position prior to considering any expression of interest for that particular position if he contractor does not advertise for the position but instead uses an alternative device to find individuals for consideration (e.g., through an external resume database), and (ii) That meet all of the following three conditions:
  • The qualifications must be noncomparative features of a job seeker. For example, a qualification of three years’ experience in a particular position is a noncomparative qualification; a qualification that an individual have one of the top five number of years’ experience among a pool of job seekers is a comparative qualification.

  • The qualifications must be objective; they do not depend on the contractor’s subjective judgment. For example, ‘‘a Bachelor’s degree in Accounting’’ is objective, while ‘‘a technical degree from a good school’’ is not. A basic qualification is objective if a third-party, with the contractor’s technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor’s judgment.

  • The qualifications must be relevant to performance of the particular position and enable the contractor to accomplish business-related goals.
For purposes of paragraph (1)(iv) of this definition, a contractor may conclude that an individual has removed himself or herself from further consideration, or has otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual, based on the individual’s express statement that he or she is no longer interested in the position, or on the individual’s passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. A contractor also may determine that an individual has removed himself or herself from further consideration or otherwise indicated that he or she is no longer interested in the position for which the contractor individual, based on the individual’s express statement that he or she is no longer interested in the position, or on the individual’s passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. A contractor also may determine that an individual has removed himself or herself from further consideration or otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual based on information the individual provided in the expression of interest, such as salary requirements or preferences as to type of work or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. If a large number of individuals meet the basic qualifications for the position, a contractor may also use data management techniques, such as random sampling or absolute numerical limits, to limit the number of individuals who must be contacted to determine their interest.

§ 60–1.12 Record retention.
(a)General requirements.
Such records include, but are not necessarily limited to, records pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, and other records having to do with requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications, resumes, and 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 on-line resumes or internal resume databases, records identifying job seekers contacted regarding their interest in a particular position (for purposes of record keeping with respect to internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search; for purposes of record keeping with respect to external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor), regardless of whether the individual qualifies as an Internet Applicant under 41 CFR 60–1.3, tests and test results, and interview

(d) Adverse impact evaluations.
When evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under part 60–3 with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the impact of employee selection procedures on Internet Applicants, as defined in 41 CFR 60–1.3, and those records relating to the analyses of the impact of employment tests that are used as employee selection procedures, without regard to whether the tests were administered to Internet Applicants, as defined in 41 CFR 60–1.3.

Implementing the new regulations:

Some effort will be required in preparation for implementing these changes. Here are some suggestions:
  1. Set specific policies and procedures indicating which expressions of interest will be considered. E.g. stipulate that individuals must indicate a specific position of interest.
  2. Must apply electronically, or
  3. Must provide particular information.
This will limit the number of applicants to those who follow the instructions. However, the policies and procedures must be consistently applied.

Additionally, make sure you have the technology to gather and maintain expressions of interests, basic qualifications for all positions, search criteria and results, transaction dates and resume information from internal and external sources of applicant information.

As discussed above, when you use basic qualifications as a pre-screening tool, make sure the qualifications are non-comparative, objective and related to position performance and meeting business goals.

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