New Jersey Law Journal

VOL.. CLXXXIII- NO. 10- INDEX 855        MARCH 6, 2006

Title:     Labor Department Regulates federal Internet Job Applications

By JONATHAN BICK  Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of "101 Things You Need To Know About Internet Law" [Random House 2000].

Department of Labor rules requiring Federal contractors to collect information concerning Internet applicants went into effect February 6. Those covered by the rules may be able to take four relatively simple steps to comply.

The Internet applicant final rule. 41 CFR Part 60-1 (Rule). issued by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). set forth an obligation to solicit race and gender data for agency enforcement purposes. It also addresses hiring record requirements for federal contractors and subcontractors with respect to the solicitation of race. gender and ethnicity of Internet applicants.

As of February 6. all federal con-tractors and subcontractors. as well as employment outsourcing firms and employment agencies which have contracted to comply with the Rules governing federal contractors and subcontractors, must solicit demographic information about Internet applicants and retain the records required by the Rule for hiring decisions. The Rule does not apply retroactively to hiring decisions made before February 6.

OFCCP requires affected federal contractors and subcontractors to obtain gender. race and ethnicity data on employees and. where possible. on applicants in accordance with 41 CFR 60-1.12(c). The OFCCP requires such data for several purposes relating to contractors' administration of nondiscrimination and affirmative action requirements, as well as to monitor compliance with OFCPP requirements.

The Rule assists federal contractors and subcontractors in applying data collection compliance rules to Internet applicants.

Three Major Elements

The Rule has three major elements. The first defines "Internet Applicant" as a person who satisfies the following four criteria: 1) the individual submits an expression of interest in employment through the Internet; 2) the federal con-tractor or subcontractor 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 from further consideration or otherwise indicates that he is no longer interested in the position.

Second. the Rule prescribes the records contractors must maintain for all hiring done through the Internet. The Rule requires a federal contractor or subcontractor to maintain any and all expressions of interest through the Internet as to which the contractor considered the individual for a particular position. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position.

According to the OFCCP (see www.dol.gov/esa/regs/compliance/ ofccp/faqs/iappfags.htm#Q5), for internal resume databases. the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the data-base, the position for which each search of the database was made and corresponding to each search, the substantive search criteria used and the date of the search. The OFCCP Internet site also requires that for external resume data-bases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor.

Finally the Rule details the records contractors will be asked to produce during an OFCCP evaluation pursuant to 41 CFR Part 60-3, the Uniform Guidelines on Employee Selection Procedures.

For purposes of the Rule, the Internet means six types of Internet-related technologies and applications. These technologies and applications include:

•           Electronic mail/e-mail;

•           Resume databases maintained by employers, professional recruiters, and other third parties which can be searched using various criteria to match job seekers to potential jobs in which they may be interested;

•           Job banks used by seekers to identify jobs for which they may have some level of interest;

•           Electronic scanning technology, which is software that scans resumes and individual profiles contained in a database to identify individuals with certain credentials;

•           Applicant tracking systems/applicant service providers, which allow employers to collect and retrieve data on a large number of job seekers in an efficient manner; and

•           Applicant screeners.

Applying the Rule

The Rule may be applied as follows: A Federal contractor or sub-contractor initially searches an Internet job database with 5,000 job seekers for 3 basic qualifications for a New York and New Jersey licensed contract attorney (a law degree, state certification as member of the New Jersey and New York Bar, contract law experience). The initial screen for the first three basic qualifications narrows the pool to 1,000.

The contractor then adds a fourth, pre-established. basic qualification, 5 years or more of private practice experience, and narrows the pool to 100. Finally, the contractor adds a fifth, pre-established, basic qualification, 2 years of supervisory experience, which results in a pool of 10 job seekers. Under the Rule, only the 10 job seekers meeting all five basic qualifications would be Internet applicants, assuming the other three prongs of the "Internet applicant" definition were met.

Practically speaking, a federal con-tractor or subcontractor can take four relatively easy steps to ensure substantial compliance with the Rule. First, implement a single hiring process. Do not make distinctions on the classification of applicants with respect to the use of an Internet application.

Second, a federal contractor or sub-contractor can give written or electronic notice of the fact that a single hiring process, which doesn't distinguish on the classification of applicants with respect to the use of an Internet application, has been implemented. Thus, in the event a violation of the Rule occurs, the federal contractor or subcontractor will be able to demonstrate the attempt to comply and argue the violation was due to the action of a rogue employee.

Third, technology should be implemented by a federal contractor or sub-contractor to ensure that there is a consistent process in place to remain compliant. Compliance is not a one-time event and the implementation of technology to guarantee that there is a consistent process in place to remain compliant may also be useful to demonstrate a valid compliance attempt in the event of a violation claim.

Finally, a federal contractor or sub-contractor should implement a process which systematically gathers and tracks affirmative action data from Internet applicants. Since federal contractors and subcontractors are required to collect such data today, the use of a unified standard hiring procedure would result in compliant results.

It should be noted that OFCCP has indicated that for a 90-day period following February 6, it will not cite a con-tractor for a purely technical record-keeping violation for failure to comply with the Rule, provided that the con-tractor demonstrates that it is in the process of complying and that it collects and maintains records according to the established procedures consistent with OFCCP's recordkeeping requirements that pre-existed Rule, i.e., 41 CFR 60-1.12.