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Related Practice
Internet Recruiting: Who is an Applicant?
03.31.06

Last spring, we told you about the new “applicant” definition under the Uniform Guidelines on Employee Selection Procedures (UGESP). See Labor & Employment News, Volume 6, Issue 2.

The U.S. Department of Labor’s Office of Federal Contract Compliance Program (OFCCP) governs federal contractors and sub-contractors. OFCCP requires covered federal contractors to collect gender, race, and ethnicity data on applicants and employees so OFCCP can ensure nondiscrimination and affirmative action. OFCCP recently issued its own Internet Applicant rule. The Final Rule, effective February 6, 2006, defines who is an Internet Applicant for data collection and recordkeeping purposes. Although the Rule took effect last month, OFCCP has agreed it will not cite contractors making good faith compliance attempts for purely technical recordkeeping violations until after May 2006.

There are four requirements to be considered an “Internet Applicant”
  1. The individual must electronically express an interest in employment;
  2. The employer must consider the individual’s qualifications;
  3. The individual must meet the job’s minimum qualifications; and
  4. The individual must not, directly or indirectly, remove themselves from the candidate pool.

If an applicant satisfies all four of these requirements, they are deemed an Internet applicant for purposes of OFCCP’s rule and the employer must retain their application, along with demographic information. In addition, employers who use internal job databases must retain a record of each resume added to the database, a record of the date it was added, the position for which each search of the database was made, the substantive search criteria used and the search date. Employers who use external databases must keep a record of each position searched, the substantive search criteria for each search, the search date, and the resumes of anyone who met the basic qualifications and was actually considered. Employers must also retain all tests and test results, as well as interview notes. Noncompliance can result in penalties, contract termination, and debarment from future federal contracts.

Click here to view ESA Final Rules.