Attorneys

• W. Scott Hardy

Related Practices

• Labor and Employment

After years of asking for guidance on the meaning of “applicant” for affirmative action purposes, federal contractors finally got an answer – sort of.  The Office of Federal Contract Compliance Programs (“OFCCP”), the agency that enforces federal contractors’ affirmative action obligations, recently issued regulations describing when a “job seeker” becomes an “applicant” in the context of Internet and electronic data technologies.  These regulations impose recordkeeping obligations and require contractors to solicit demographic data from “Internet Applicants.”  After seeking clarification on these issues for years, contractors are now shaking their heads and remembering the old adage “be careful what you wish for.”  According to the OFCCP, these new regulations are designed to make the agency much more effective at finding and remedying hiring discrimination.  Therefore, contractors should reevaluate their hiring and recordkeeping practices now to avoid discrimination claims - and possibly debarment - later.

The new regulations apply to all contractors covered under Executive Order 11246, not just those larger contractors required to develop an annual written affirmative action program.  Covered contractors include federal contractors and subcontractors having government contracts worth at least $10,000 annually.  Those contractors with at least fifty employees and government contracts worth at least $50,000 annually are still required to develop and implement a written affirmative action program for each establishment and must analyze hiring and personnel data to identify selection disparities.  Since the new regulations only apply to data regarding hiring decisions made on or after February 6, 2006, contractors need not amend their affirmative action programs if created before that date. 

While the OFCCP has always required covered contractors to retain records regarding their hiring processes and to solicit demographic data from their applicants, these new regulations clarify and expand these obligations in the electronic age.  Now, contractors must solicit demographic information from job seekers who express an interest in employment via websites, internal databases, and e-mail, as well as from expressions of interest received via traditional means – such as walk-ins, referrals, and snail mail – if contractors accept and commingle both electronic and traditional expressions of interest. 

Contractors trigger this broader recordkeeping obligation if they consider the job seeker for a particular position by looking at the expression of interest ever so briefly.  Even if the job seeker is not remotely qualified or there are no job openings, contractors must collect and retain the job seeker’s electronic expression of interest along with other data.  Fortunately, contractors may search external electronic databases such as Monster.com for resumes of job seekers with basic qualifications without triggering the recordkeeping obligation because contractors do not consider job seekers as “Internet Applicants” until their resumes are actually reviewed.

If a job seeker’s expression of interest indicates that he or she meets the basic qualifications for the position, contractors must solicit demographic data from him or her unless the job seeker passively or expressly removes himself or herself from consideration.  To be a “basic qualification,” the qualification must be (1) advertised or established in advance; (2) objective; (3) noncomparative; and (4) relevant to the performance of the job and enable the contractor to accomplish business-related goals.  It is important to advertise or establish all “basic qualifications” at the outset to avoid transforming unqualified job seekers into “Internet Applicants” who must later be included in the applicant pool for statistical analyses.

Prudence dictates that contractors assess their current recruiting and hiring practices with the new regulations in mind.  Contractors should develop submission procedures and refuse to consider expressions of interest from job seekers who do not follow these procedures.  Contractors also need to either avoid informal reviews of job seekers’ expressions of interest or develop methods for tracking such reviews.  Data management and recordkeeping protocols that comply with the regulations are also a must.  Moreover, contractors must ensure that third parties who participate in their recruitment efforts comply too.  Finally, contractors should assess whether they are using accurate and appropriate data when preparing affirmative action programs. 

With sound advice and careful planning, contractors can minimize these new administrative burdens and legal risks whenever the OFCCP comes knocking.  Is your business ready?

For more information, please contact shardy@cohenlaw.com