The Office of Federal Contract Compliance Program’s (OFCCP’s) Technical Assistance Guide (TAG) for supply and service contractors and subcontractors has a surprisingly short entry on recordkeeping for Internet applicants and other applicants. This subject is one of the most important and one of the most complex subjects in the agency’s affirmative action laws and regulations. We’re going to use this blog post to examine OFCCP’s entry on traditional and Internet applicants. However, this post will be somewhat different than other posts, since we’re also going to provide some insight not found in the TAG.
Read previous installments of the TAG series:
- Part 6: Invitation to Self-Identify
- Part 5: Recordkeeping Requirements
- Part 4: Listing Jobs with the ESDS
- Part 3: Postings, Listings, and Notices
- Part 2: Two General Rules
- Part 1: Overview
The TAG’s discussion of Internet applicants is found in the section on recordkeeping. There are certainly recordkeeping requirements associated with both traditional and Internet applicants. However, OFCCP’s regulations on Internet applicants provide both recordkeeping and record retention requirements. These regulations also provide a substantive framework regarding the candidates that may become part of disparity analyses that OFCCP conducts during compliance reviews.
Traditional and Internet Applicants
Federal contractors and subcontractors are required to capture expressions of interest in employment. While some employers may use a traditional paper-based application process, most employers now use an electronic application process. To address the challenges associated with collecting application information using an electronic process, in 2005 OFCCP released a set of regulations referred to as the agency “Internet applicant” rule. Frequently asked questions about this rule are available on OFCCP’s website.
OFCCP has different sets of rules for who is considered a candidate to be included in disparity analyses on applicants depending on whether the candidate is a “traditional” candidate or an “Internet applicant.” A traditional candidate is a candidate who submits an expression of interest without any use of technology. If all candidates submitting an expression of interest for an open position are traditional candidates, there are a far greater number of applicants who may be included in disparity analyses.
For any opening where at least one candidate submits an electronic expression of interest, OFCCP’s Internet applicant rule governs recordkeeping and record retention for that opening. The way any particular individual expresses interest does not determine whether the Internet applicant rules is used. For example, if 20 candidates express interest on paper application forms that are submitted in person at a company site and one candidate expresses interest in the same position via e-mail, the Internet applicant rule will govern recordkeeping and record retention for all 21 candidates.
Who Is An Applicant?
Appendix N in the TAG provides information on recordkeeping for Internet applicants. The first heading in the appendix is “Who is an applicant?” What OFCCP is actually asking with this question is “Who is a viable candidate for a particular opening?” Appendix N provides the following criteria regarding which candidates are viable candidates for an opening:
- The candidate must express interest in a job in writing “or in some limited instances orally”
- The candidate must not have withdrawn from consideration before receiving an offer of employment
This definition of “applicant,” which OFCCP used for many years, required federal contractors and subcontractors to include many non-viable candidates in data submitted to OFCCP.
In OFCCP’s Internet applicant rule, the agency developed the following four criteria to determine whether a candidate is a viable candidate for an opening:
- The candidate must submit an electronic submission of an expression of interest in employment
- The employer must consider the candidate for employment in a particular position
- The candidate must meet the basic qualifications for the relevant position
- The candidate must not withdraw from consideration prior to receiving an offer of employment
Candidates who meet these four criteria are considered to be “Internet applicants” and data on these candidates must be provided to OFCCP at the start of a compliance evaluation.
As noted in our previous blog post regarding invitations to self-identify, employers must provide all viable candidates with an opportunity to self-identify their race/ethnicity, sex, protected veteran status, and disability status. This means that all Internet applicants as defined above must be given an opportunity to self-identify. Traditional applicants who are part of an opening where there were no electronic expressions of interest must also be given an opportunity to self-identify.
OFCCP has special recordkeeping requirements pertaining to the use of internal and external databases for finding candidates. When there is a search of an internal database, a copy of each resume submitted along with the date the resume was submitted must be retained. When there is a search of an external database, resumes of candidates who were considered for an open position and who met the basic qualifications for the position must be retained. When there is a search of either an internal or external database, information about the job such as a job listing or position description, substantive search criteria used in the search, and the date of the search must be retained.
Next in this Series…
In the next post in this series, we begin to look at OFCCP’s requirements regarding the preparation of affirmative action plans!