the new ofccp internet applicant recordkeeping rule

1. The New OFCCP Internet Applicant Recordkeeping Rule

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 11246�operates 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 Q&A 15�published in 1979�specifically 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, 2004�confirmed in part, went beyond in part, Interpretive Guidance

10. History EEOC/DOJ/OFCCP have not yet published UGESP Q&As 94-98 in final form Final regulations published by OFCCP on October 7, 2005�legally 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 Q&As 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 contractor�s 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 Individual�s 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 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 individual�s posting of a resume on a commercial resume database is generally sufficient to satisfy the �expression of interest� requirement

25. Paper or Electronic? 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? 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 Q&A 15)

27. CO-MINGLING CONTEXT EXAMPLE

28. CONVERTED FROM PAPER EXAMPLE

29. 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 Contractors may establish protocols under which they will refrain from considering expressions of interest where:

32. 2. Considers Standard submission procedures are not followed Unsolicited resumes that are not submitted for a particular position

33. 2. Considers 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 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)

37. 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 = �bachelor�s degree in accounting� Subjective = �a business degree from a �good school�� Relevant

40. 3. Basic Qualifications Qualifications must be Noncomparative Objective Relevant�to 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. 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 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 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 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 contractor�s 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 Express statement of disinterest Failure to respond to contractor�s inquiries Statements made in the expression of interest indicating:

48. 4. Continued Interest Incompatible salary requirements Incompatible preferences as to position or type of work Incompatible preferences as to location of work

49. 4. Continued Interest 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 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 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 contractor�s hiring practices for potential discrimination and will carefully review the basic qualifications themselves

58. Enforcement OFCCP�s 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 contractor�s 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.

73. QUESTIONS