1. The New OFCCP Internet Applicant Recordkeeping Rule

2. Purpose of the Rule Defines “Internet Applicant” – a job seeker
applying for work through the Internet or
related electronic data technologies from whom
contractors must solicit demographic information
Prescribes the records contractors must maintain
about hiring done through use of the Internet or
related electronic data technologies
Explains the records OFCCP will require
contractors to produce when evaluating whether
a contractor has maintained information on
adverse impact and conducted an impact
analysis under the Uniform Guidelines on
Employee Selection Procedures (UGESP)

3. Collection of Demographic Data
Contractors are required to solicit
race, ethnicity, and gender data from
all individuals who are “applicants”
for employment.
The rule imposes no new obligation
to solicit race, ethnicity, and gender
data.

4. Collection of Demographic Data (cont’d)
The rule does not mandate a specific time or
point in the selection process that contractors
must solicit this demographic information, so
long as the information is solicited from all
applicants.
Nothing in the rule precludes a contractor from
voluntarily collecting data from job seekers who
are not applicants, as long as such information
is used only for purposes of the contractor’s
affirmative action and equal employment
opportunity programs.

5. Definition of Internet Applicant
Four criteria must be satisfied in order for a job seeker to be considered an “Internet Applicant”

6. Four Criteria
Individual submits expression of interest through Internet or related electronic data technologies
Contractor considers individual for employment in a particular position
Individual’s expression of interest indicates basic qualifications for position
Individual does not remove him/herself from consideration prior to job offer

7. 1. Expression of Interest
Job seeker submits an expression of interest in employment through the Internet or related electronic data technologies

8. Internet Technologies
While the rule does not specifically define the term “Internet or related electronic data technologies” because technology is rapidly evolving, the preamble refers to the following examples: , resume databases, job banks, electronic scanning technology, applicant tracking systems/applicant service providers, and applicant screeners.

9. Expression of Interest (cont’d)
An individual’s posting of a resume
on a commercial resume database
is generally sufficient to satisfy the
“expression of interest” requirement.
Note: an individual is not an
“Internet Applicant” unless all four
criteria are satisfied.

10. Expression of Interest (cont’d)
Includes all expressions of interest,
regardless of the means or manner in
which made, if the contractor considers
expressions of interest made through
Internet or related electronic data
technologies in the recruiting or
selection processes for that particular
position.

11. What if the contractor considers both electronic & paper express-ions of interest?
When a contractor considers expressions of interest via both the Internet or related technologies and paper applications, the “Internet Applicant” rule applies.

12. What if the contractor does not use the Internet or consider any electronic submissions?
For those positions for which the
contractor does not use the Internet
or related electronic data technologies,
the traditional (paper) OFCCP record-
keeping standards apply.
I.e., contractors must solicit demographic
information from job seekers who are
applicants under the definition of
“applicant” contained in UGESP Q&A 15.

13. 2. Considers
The contractor “considers the individual for employment in a particular position” means the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.

14. Considers (cont’d)
“Under this definition, ‘considers’ involves the assessment of the job seeker’s qualifications against any qualifications of a particular position, including a determination of whether a job seeker meets the basic qualifications for the position.”
-- Preamble to Applicant Final Rule

15. Protocols Contractors may establish protocols under
which they will refrain from considering
expressions of interest where:
Standard submission procedures
are not followed
Resumes are not submitted for a
particular position
Actual practice must consistently and uniformly follow the protocol.

16. Data Management
If there are a large number of expressions of interest, a contractor may use data management techniques to reduce the number considered. For example:
Random sampling
Absolute numerical limits
The sample must be appropriate in terms of the pool of those submitting expressions of interest – i.e., does not produce a disparate impact and is facially neutral.

17. 3. Basic Qualifications
The expression of interest must indicate that the individual possesses the basic qualifications for the position.

18. Basic Qualifications (cont’d)
Advertised to potential applicants
as necessary in order to be
considered for the position; or
If the position is not advertised,
established in advance by making
and maintaining a record prior to
considering any expression of
interest for that particular position
(e.g., simple external database
searching)

19. Noncomparative Objective Relevant Basic Qualifications (cont’d)
Must also be:
Noncomparative
Objective
Relevant

20. Non-comparative vs. Comparative Qualification
Noncomparative qualification –
e.g., three years experience
Comparative qualification –
e.g., top five most experienced
candidates

21. Objective vs. Subjective Qualification
Objective – e.g., a Bachelor’s
degree in accounting
Subjective – e.g., a business
degree from a “good school”

22. Relevant Qualification
Relevant to performance of the particular position and enables the contractor to accomplish business-related goals.

23. Basic Qualifications (cont’d)
Contractor may search a database for all “basic
qualifications” by searching for the qualifications
serially or in combination.
Contractor may search a database for some “basic
qualifications” and screen for the remaining “basic
qualifications” through other means (e.g., by
ing candidates).
Contractor may search a database for some, but not
all, of the basic qualifications and not screen further for
the remainder of the qualifications. If so, the contractor
must solicit demographic data for individuals meeting
the “basic qualifications” actually used for screening
job seekers, provided the other applicant criteria are met.

24. Example of Basic Qualification Search
A contractor initially searches an external
job database with 50,000 job seekers for
3 basic qualifications for a bi-lingual
emergency room nursing supervisor job:
a 4-year nursing degree,
state certification as an RN, and
fluency in English and Spanish.
The initial screen for the first three
basic qualifications narrows the
pool to 10,000.

25. Example of Basic Qualification
Search (cont’d)
The contractor then adds a fourth, pre-
established, basic qualification, 3 years
of emergency room nursing experience,
and narrows the pool to 1,000.
Finally, the contractor adds a fifth, pre-
established, basic qualification, 2 years
of supervisory experience, which results
in a pool of 75 job seekers.
Under the rule, only the 75 job seekers
meeting all five basic qualifications would
be Internet Applicants, assuming the
other three prongs of the “Internet
Applicant” definition were met.

26. 4. Continued Interest
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 consideration or otherwise indicates that he or she is no longer interested in the position.

27. Lack of Continuing Interest
Express statement of disinterest
Failure to respond to contractor’s inquiries
Statements made in the expression of
interest indicating:
Incompatible salary requirements
Incompatible preferences as to
position or type of work
Incompatible preferences as
to location of work

28. Data Management
If there are large numbers of job seekers meeting basic qualifications, data management techniques may be used to reduce the number of job seekers who must be contacted to discern interest in the position. For example:
Random sampling
Absolute numerical units
* Provided the sample is appropriate in terms of the pool of those meeting basic qualifications – i.e., does not produce a disparate impact and is facially neutral.

29. Record Retention The requirement to retain records
regarding the hiring process is not
a new obligation for contractors.
The requirement to retain records
applies more broadly than the
requirement to solicit demographic
information from “Internet
Applicants.”

30. Retention of Expressions of Interest
Contractors must keep any and all expressions
of interest through the Internet or related
electronic data technologies as to which the
contractor considered the individual for a
particular position, except for expressions of
interest from external resume databases.
For external resume databases, contractors
must retain all expressions of interest considered
for individuals who meet the basic qualifications
for a particular position, even those of
individuals who are not Internet Applicants.

31. Record Retention (cont’d)
Internal Databases – contractor must maintain a record of:
Each resume added to database
Date each resume was added
Position for which each search
was made
The substantive search criteria
used in the search
Date of the search

32. Record Retention (cont’d)
External databases – contractor must maintain a
Position for which each search was made
Substantive search criteria used in each search
Date of search
Resumes of any job seekers who met the basic
qualifications for the particular position who are
considered by the contractor (even if they do
not qualify as Internet Applicants)

33. Record Retention (cont’d)
All tests and test results
All interview notes
Records identifying job seekers contacted
regarding their interest in a particular position
The race, gender, and ethnicity of each
applicant or Internet Applicant, whichever is
applicable

34. Recordkeeping on Impact
When evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under UGESP (41 CFR Part 60-3) with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the adverse impact of employee selection procedures on Internet Applicants, as defined in this rule, and analyses of tests used as employee selection procedures, regardless of whether the test takers were Internet Applicants.

35. Discrimination Analysis
“OFCCP is proposing a definition of applicant for the limited purposes of OFCCP recordkeeping and data collection requirements pursuant to Executive Order Accordingly, OFCCP is not purporting to define who is an applicant for any purposes which would affect the substantive interests of any individual, such as for purposes of litigation of employment discrimination claims under any federal, state, or local anti-discrimination statute.”
- Preamble to Applicant Final Rule

36. Enforcement OFCCP will rely on census and other labor
market data to assess a contractor’s hiring
practices for potential discrimination and
will carefully review the basic qualifications
themselves.
OFCCP’s compliance evaluations will not be
limited to an evaluation of those records
produced by the contractor. OFCCP will look
broadly at all aspects of a contractor’s
compliance with its nondiscrimination
obligations, including the possible adverse
impact of screens for basic qualifications.

37. Effective Date February 6, 2006.
The final rule becomes effective
February 6, 2006.
As part of their affirmative action programs
(AAP), contractors are required to analyze
personnel activity data to determine
whether there are selection disparities.
The new recordkeeping requirements
(in ) will apply to data on hiring
decisions made on or after February 6,
AAPs created before February 6,
2006 will not need to be amended.

38. Effective Date Enforcement
Under OFCCP’s enforcement discretion, for a period of 90 days following February 6, 2006, OFCCP will not cite a contractor for a purely technical recordkeeping violation for failure to comply with the final rule, provided that the contractor:
(1) demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and
(2) collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule, i.e., 41 CFR   

39. For Additional Information
Visit OFCCP’s website:
You can contact OFCCP through the public mailbox at: