OFCCP Finalizes Internet Applicant Definition
- By Your mom
- •
- 01 Nov, 2005
On October 7, 2005 the Office of Federal Contract Compliance Programs (OFCCP)
published its final rule regarding job applicants who use the internet or other electronic means
when applying for a position. 70 FR 58946.
Under the new rule, which takes effect February 6, 2006, an “internet applicant” means any
individual meeting all of the following criteria:
1. The individual submits an expression of interest in employment through the internet or
related electronic data technologies;
2. The contractor considers the individual for employment in a particular position;
3. The individual’s expression of interest indicates the individual possesses the basic
qualifications for the position; and,
4. 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.
When an employer accepts both paper and electronic applications for a particular job, the
definition above applies to both types of applicants. When, however, only paper applications are
accepted, the broad definition of “applicant” found in the Uniform Guidelines on Employee
Selection Procedures (UGESP) applies: “a person who has indicated an interest in being
considered for hiring, promotion, or other employment opportunities.” 44 FR 11,998, Q+A 15
(3/2/79). Employers have complained for years that the UGESP definition fails to limit
“applicants” to those possessing the minimum qualifications for a particular opening who follow
an employer’s stated application procedure.
To correct these UGESP deficiencies, the EEOC, Department of Justice, Office of
Personnel Management and Department of Labor (collectively the “UGESP agencies”) proposed
changes to the UGESP definition in March 2004. Their joint proposed rule defines an “internet
applicant” as:
1. An individual who has expressed interest in a particular position;
2. The individual has followed the employer’s standard application procedure; and,
3. The employer has acted to fill the particular job.
While the UGESP agencies’ proposed definition would require an internet applicant to
express interest in a particular job by following a prescribed procedure, it still does not require
the applicant to possess the minimum qualifications for the position. It also fails to cover paper
applicants leaving those individuals covered by the current unacceptably broad applicant
definition. It is unclear whether the UGESP agencies’ final rule will reconcile current differences
with the OFCCP’s definition by addressing minimum qualifications and standardizing the
definitions of paper and internet applicants. Failure to do so will create ambiguity for employers
required to meet both EEOC and federal contracting guidelines.
Clear definitions are important for federal contractors who are required to obtain, where
possible, gender, race and ethnicity data on applicants and employees in connection with
administering their affirmative action plans. Employers should continue to monitor this area of
the law and carefully review the final UGESP rule, when issued, in order to comply with both
sets of requirements.
published its final rule regarding job applicants who use the internet or other electronic means
when applying for a position. 70 FR 58946.
Under the new rule, which takes effect February 6, 2006, an “internet applicant” means any
individual meeting all of the following criteria:
1. The individual submits an expression of interest in employment through the internet or
related electronic data technologies;
2. The contractor considers the individual for employment in a particular position;
3. The individual’s expression of interest indicates the individual possesses the basic
qualifications for the position; and,
4. 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.
When an employer accepts both paper and electronic applications for a particular job, the
definition above applies to both types of applicants. When, however, only paper applications are
accepted, the broad definition of “applicant” found in the Uniform Guidelines on Employee
Selection Procedures (UGESP) applies: “a person who has indicated an interest in being
considered for hiring, promotion, or other employment opportunities.” 44 FR 11,998, Q+A 15
(3/2/79). Employers have complained for years that the UGESP definition fails to limit
“applicants” to those possessing the minimum qualifications for a particular opening who follow
an employer’s stated application procedure.
To correct these UGESP deficiencies, the EEOC, Department of Justice, Office of
Personnel Management and Department of Labor (collectively the “UGESP agencies”) proposed
changes to the UGESP definition in March 2004. Their joint proposed rule defines an “internet
applicant” as:
1. An individual who has expressed interest in a particular position;
2. The individual has followed the employer’s standard application procedure; and,
3. The employer has acted to fill the particular job.
While the UGESP agencies’ proposed definition would require an internet applicant to
express interest in a particular job by following a prescribed procedure, it still does not require
the applicant to possess the minimum qualifications for the position. It also fails to cover paper
applicants leaving those individuals covered by the current unacceptably broad applicant
definition. It is unclear whether the UGESP agencies’ final rule will reconcile current differences
with the OFCCP’s definition by addressing minimum qualifications and standardizing the
definitions of paper and internet applicants. Failure to do so will create ambiguity for employers
required to meet both EEOC and federal contracting guidelines.
Clear definitions are important for federal contractors who are required to obtain, where
possible, gender, race and ethnicity data on applicants and employees in connection with
administering their affirmative action plans. Employers should continue to monitor this area of
the law and carefully review the final UGESP rule, when issued, in order to comply with both
sets of requirements.
