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Clarify recordkeeping provisions concerning who is an "applicant" in the context of the Internet and related email technologies.

The DOL along with the Office of Federal Contract Compliance Programs (OFCCP) has also put forth regulations (FR-March 29) that govern covered federal contractors to clarify how the Uniform Guidelines on Employee Selection Procedures apply in the context of the Internet and related technologies. The new recordkeeping guidance would apply exclusively to the Internet and related technologies, including Internet resume banks and job boards, and employers' own web sites, resume databases and online job listings. Existing guidelines would continue to apply to traditional non-electronic recruitment and selection, for example, submission of hard-copy resumes to employers.

The EEOC comments are due on or before May 3, 2004 and the OFCCP comments are due on or before May 28, 2004 .

Background on Proposal

The proposed definition of Internet Applicant seeks to provide a balance between the applicant’s desire to understand the qualifications for the job, the employer’s need to establish minimum qualifications, and the agency’s desire to monitor applicant flow. We have identified the following concerns with the proposal.

Concern: The OFCCP’s proposed regulatory definition of Internet Applicant is different from the definition contained in the jointly proposed Q&A #96 ( March 4, 2004). The most significant difference is that the OFCCP’s proposed regulation allows an employer to exclude individuals who do not meet the “advertised, basic qualifications” of the job. Which standard will employers be held to? Is the OFCCP standard a safe harbor in the context of affirmative action audits? What about an EEOC complaint? Would an employer be held to one standard during an OFCCP audit and a different standard when responding to an EEOC complaint? If so, this would make recordkeeping impossibly difficult and confusing to employers.

Concern: Traditionally, unless an employment qualification is extremely clear-cut (e.g., a state bar license for an attorney, a CDL license for a DOT-covered truck driver, or an electrician’s license for an electrician), the OFCCP has required employers to track the race and gender of all individuals who apply for an open, advertised position, even if they lack the employer’s desired minimum qualifications. The proposed regulations and the proposed Q&A recognize that this is not practical in the context of Internet Applicants, due to the sheer volume of applications. However, this leaves the employer in the confusing position of applying a different recordkeeping standard to Internet Applicants than to applicants who apply on paper or in person.

The proposal would require employers to retain “any and all employment submissions through the Internet or related electronic technologies, such as on-line resumes or resume databases (regardless of whether an individual qualifies as an Internet Applicant….)”

Concern: Employers would have to retain unsolicited resumes received via email, even if the employer follows a uniform policy of not considering unsolicited resumes.

Concern: Employers who search a resume database would have to obtain a copy of all the resumes that were in the database at the moment of the search. This could mean hundreds of thousands or even millions of records.

Action Needed

If you have any comments about the proposed guidelines please send your thoughts to Chris Tampio at ctampio@nam.org by April 28, 2004. We are particularly interested in knowing whether we have identified all of the major employer concerns raised by the proposal—please let us know if there are others that you have identified. In addition, if you have recommendations regarding how to improve the proposals, let us know that as well. Finally, if you would like to serve on our small working group that will help synthesize the comments we receive, please let us know that soon! The working group will communicate by e-mail, with possibly a telephone conference or two.

To view the proposals you may either go to www.nam.org/eeocdoc & www.nam.org/ofccpdoc or contact Chris Tampio at ctampio@nam.org and he can send you the two documents in PDF or Microsoft Word format.

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