Definition of 'Internet job applicant' clarified for contractors

By Steve Bates Oct 7, 2005
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The agency that ensures equal employment opportunity for employees of federal contractors has issued a regulation indicating that job applicants using the Internet and other electronic means can be treated like those using traditional methods such as mailing a resume to an employer.

The final regulation, published Oct. 7 in the Federal Register, appears to represent a significant change from the earlier version, issued in March 2004, said HR practitioners getting their first look at it. Employer organizations, including the Society for Human Resource Management (SHRM), had said that the first version would have required employers to keep different sets of records: one for applications received electronically and one for other applications.

The final rules, while much longer than the original proposal, appear to get around that problem. Issued by the Office of Federal Contract Compliance Programs (OFCCP), the rules will take effect in February 2006.

However, they do not resolve a similar issue with similar regulations proposed by the U.S. Equal Employment Opportunity Commission (EEOC) in conjunction with the Department of Justice, the Office of Personnel Management and the Department of Labor. It was not clear when their proposed rules, with their own definition of who is an Internet job applicant, will become final, and in what form.

OFCCP regulations require covered federal contractors to obtain, where possible, gender, race and ethnicity data on applicants and employees in connection with administering their affirmative action plans, and to supply it to OFCCP on request. OFCCP uses contractor data to identify which workplaces to investigate for possible systemic employment discrimination. When OFCCP initiates a compliance audit, it asks the contractor to provide gender, race and ethnicity data on applicants and hires, and then it decides, based in part on its statistical analysis of that data, whether to conduct an on-site audit.

This new rule provides clear guidance to allow us to better enforce the law, said Charles E. James, Jr., deputy assistant secretary for OFCCP, in a press release. This final rule will enable OFCCP to effectively evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis. It also helps contractors by clarifying an ambiguity that, until now, left contractors guessing at what information they needed to collect from Internet applicants.

A key feature of the OFCCP regulation, said HR practitioners, is that only a job applicant who meets the basic requirements for a particular position should be considered an applicant for the position. That makes an important distinction between someone who sees a job advertised on a web site and e-mails a resume and someone who e-mails an organization expressing a general interest in work.

HR professionals said they were particularly pleased to see a new provision in the final rules that seems to say that if a company accepts any applications from electronic means, it can treat such applications the same way that it treats applications it receives from more traditional methods, such as letter mail.

This is a huge step forward, said Bill Osterndorf, president of HR Analytical Services in Greenfield, Wis. Its a real victory for employer organizations that had cited drawbacks with the original version of the rules.

OFCCP officials have explained the things that they want employers to do, said Osterndorf. Its an extremely valuable tool, especially if you get hundreds of thousands of applications a year. [Employers] want to be able to do the right thing, he added. They need to know the rules. This establishes what the rules are.

As published in the Federal Register, the regulation says that Internet Applicant means any individual satisfying all four of these criteria:

  • 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.
  • 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.

The regulation says that the phrase 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, if the contractor considers expressions of interest made through the Internet or related electronic data technologies in the recruiting or selection processes for that particular position.

The regulation offers the following example of how the rule works:

Contractor A posts on its web site an opening for a Mechanical Engineer position and encourages potential applicants to complete an on-line profile if they are interested in being considered for that position. The web site also advises potential applicants that they can send a hard copy resume to the HR Manager with a cover letter identifying the position for which they would like to be considered. Because Contractor A considers both Internet and traditional expressions of interest for the Mechanical Engineer position, both the individuals who completed a personal profile and those who sent a paper resume and cover letter to Contractor A meet this part of the definition of Internet Applicant for this position.

I like this, said Gerry Crispin, a principal of Career Crossroads, an international consulting firm on staffing strategy in East Brunswick, N.J. This covers virtually every condition and redefines applicant along the lines of the suggestions from SHRM and other organizations.

The rules seem to say that as long as you have posted this job on your web site, no matter how anybody expresses interest in a position, theyre an applicant if they have the minimum qualifications for the job, said Crispin.

Crispin suggested that this will change HR practices in a positive way. This will force people to be more clear in their advertising about what the minimum qualifications are for a position, he stated. They will engage in a better hiring process.

However, Osterndorf cautioned that the EEOC and other agencies considering similar regulations have yet to indicate whether they will emulate the OFCCPs changes. We dont know how [the OFCCP rules] are going to affect the EEOC and those other agencies, he said. There could be a significant problem for employers if the EEOC comes out with a definition of Internet job applicant that is at significant variance with the OFCCP definition.

How many definitions of applicant are we going to have to deal with? said Massachusetts employment lawyer William E. Hannun III with the firm Schwartz Hannum PC.

Hannum added that the new OFCCP definition of Internet applicant widens the pool of persons who could be considered applicants. Theres a greater risk that spam resumes could be considered applications under the new definition, he said.

Steve Bates is managing editor of HR News. He can be reached at sbates@shrm.org

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