Federal Contractors Are Obliged to Solicit Race and Gender Data From Internal Applicants
October 20, 2005
The Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") regulations require covered federal contractors and subcontractors to collect gender, race and ethnicity data regarding employees and, where possible, each applicant for employment. The OFCCP recently issued its final rule, which modifies OFCCP applicant recordkeeping requirements to address challenges presented by the use of the Internet and related electronic data technologies in the recruiting and hiring processes, by requiring covered contractors to obtain this same information from "Internet Applicants."
Under the final rule, an "Internet Applicant" is any individual who meets the following four criteria:
(1) The individual submits an expression of interest in employment with the covered federal contractor through the Internet or related electronic data technologies,
(2) The covered federal contractor considers the individual for employment in a particular position;
(3) The individual's expression of interest indicates that the individual possesses the basic qualifications for the position; and
(4) Prior to receiving an offer of employment from the contractor, the individual does not remove himself or herself from further consideration or otherwise indicate that he or she is no longer interested in the position.
Under the final rule, if a contractor considers expressions of interest through the Internet or related electronic data technologies and traditional means (i.e. paper resumes) for a particular position, the Internet Applicant definition applies to both types of expressions of interest. If the contractor considers only expressions of interest through traditional means for a particular position, then the Internet Applicant definition does not apply.
Under the final rule, a covered federal contractor "considers" an individual for employment in a certain position when the contractor assesses the "substantive information provided in the expression of interest with respect to any qualifications involved in the particular position."
Under the final rule, "basic qualifications" are qualifications that are either advertised (where the contractor advertises on the website the qualifications the applicant must possess in order to be considered for the position), or established(where the contractor establishes criteria in advance by making a record of the qualifications before considering any expression of interest for that position); and that are non-comparative, objective, and "relevant to performance of the particular position and enable the contractor to accomplish business-related goals."
Under the final rule, to determine if an individual removes himself or herself from consideration for the position, the contractor can rely on an express statement of disinterest or a passive indication of disinterest by the potential applicant (i.e., repeated non-responsiveness to inquiries from contractor about interest in the position). The contractor may also determine that an individual is not interested based upon information contained in the expression of interest (i.e., salary requirements or work location preferences), as long as the contract has "a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers."
When confronted with a large number of individuals who meet the basic qualifications, a contractor may use random sampling or absolute numerical limits to limit the number of expressions of interest to consider and/or to limit the number of potential applicants the contractor must contact to determine whether the individuals remain interested in the particular position, "provided that the sample is appropriate in terms of the pool of those meeting the basic qualifications."
Recordkeeping:
In addition to any other requirements, under the final rule, contractors must retain:
- All expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position;
- For internal resume databases: a record of each resume added to the database, 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 search criteria and the date of the search; and
- For external resume databases: a record of the position for which each search was made, and corresponding to each search, the search criteria, the date of the search, and all resumes of individuals who met the basic qualifications for the position.
The final rule becomes effective February 6, 2006.
For more information on this matter, please contact one of the attorneys in Sonnenschein's employment practice group or training solutions group.
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These materials should not be considered as, or as a substitute for, legal advice and they are not intended to nor do they create an attorney-client relationship. Because the materials included here are general, they may not apply to your individual legal or factual circumstances. You should not take (or refrain from taking) any action based on the information you obtain from this document without first obtaining professional counsel and you should not send us confidential information without first speaking to one of our attorneys and receiving explicit authorization to do so.
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