For several years now, employers and government contractors have faced inconsistent definitions of “Internet Applicant” promulgated by OFCCP in its regulations concerning government contractors, and the EEOC’s proposed supplemental Question & Answer document under the UGESP.
The question remains: Must an employer comply with both the OFCCP regulations and the UGESP proposed guidelines?
The OFCCP requires covered federal contractors and subcontractors to maintain records of “job applicants,” including resumes and race and gender identification information. Through the process of tracking “applicant flow data,” the government determines whether contractors are adhering to the non-discrimination requirements imposed upon them under Executive Order 11246. Until 2005, the term “applicant” remained vaguely defined only through the 1979 UGESP, and the issue of who qualifies as an “Internet Applicant” was not defined at all. In 2005, OFCCP issued new regulations defining “Internet Applicant” for federal contractors, discussed below.
Unlike OFCCP regulations, the UGESP applies not only to federal contractors, but to all employers covered by Title VII. Whereas contractors use applicant flow data in the context of affirmative action plans, the UGESP requires that employers covered by Title VII retain such “records or other information which will disclose the impact which its tests and other selection procedures have upon the employment opportunities of persons by identifiable race, sex or ethnic group.” 29 CFR part 1607.4A.
In 2000, the Office of Management and Budget instructed the four federal agencies responsible for drafting the UGESP (EEOC, Department of Labor (of which OFCCP is a part), U.S. Department of Justice, and the Office of Personnel Management) to address the issue of how employers’ use of the Internet impacted their recordkeeping obligations under Executive Order 11246 and other federal civil rights laws.
After studying the issue for roughly four years, in March 2004, the agencies jointly proposed guidance on the issue of what constitutes an “Internet Applicant” under the UGESP. The guidance, found at www.eeoc.gov/policy/docs/qanda-ugesp.html, does not change the text of the UGESP, but instead supplements the Question & Answer portion.
For purposes of record-keeping under the UGESP, an “Internet Applicant” exists when:
The employer acted to fill a particular position;
The individual followed the employer’s standard procedures for submitting applications; and
The individual indicated an interest in the particular position.
The second criterion is significant, in that it eliminates individuals who do not follow the employer’s established application procedure. For example, if an employer requires interested individuals to submit a resume electronically as the exclusive means of applying, only those who do so can be Internet applicants. Likewise, only those who meet the employer’s stated deadline for applying may be considered Internet applicants.
Significantly, however, the UGESP guidance contains no minimum qualification requirements. Every individual who “indicated an interest” in a position posted on the employer’s website, regardless of qualification, is counted as an applicant.
Most importantly, the UGESP guidance does not supercede regulations promulgated by the different enforcement agencies. In fact, the guidelines anticipated that “each agency may provide further information…through the issuance of additional guidance or regulations that allow each agency to carry out its specific enforcement responsibilities.”
In March, 2005 OFCCP amended its regulations to provide a more comprehensive definition of “Internet Applicant” (online at http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-1/41CFR60-1.12.htm).
Unlike the UGESP guidance, OFCCP’s regulations include a minimum qualifications requirement in order to be counted as an applicant. Under OFCCP regulations, an individual is an “Internet Applicant” when:
The individual submitted an expression of interest in employment through the Internet or related technologies (including e-mail, job bank, resume database);
The employer considered the job seeker for employment in a particular open position;
The job seeker’s expression of interest indicated the individual possessed the advertised, basic qualifications for the position; and
The job seeker did not subsequently indicate no longer having an interest in the position.
The third criterion fills the gap left by the UGESP guidance with respect to qualifications. This difference alone narrows the field of potential “applicants” considerably.
Furthermore, OFCCP has clarified that employer consideration refers to resumes or applications that were actually reviewed and assessed by the employer. A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with its standard procedures. In addition, a contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted with respect to a particular position (such as unsolicited resumes). If there are a large number of expressions of interest, the contractor may use data management techniques that do not depend on assessment of qualifications, such as random sampling, to limit the number of expressions of interest to be considered, provided the sample is appropriate given the universe of expressions of interest.
None of these activities are expressly permitted under the UGESP guidance. Which leads to the question: is compliance with OFCCP regulations sufficient? And, what about non-contractors who are nonetheless subject to Title VII?
Conflicting Obligations of Contractors
It has now been almost three years since OFCCP issued its regulations, and almost four years since the UGESP guidance were published. Yet, EEOC has not issued further guidance and has issued no regulations under Title VII. Given EEOC’s lack of enforcement activity on this issue, it is questionable whether any standard other than OFCCP’s could be enforced. An employer could reasonably argue that EEOC lacks authority to enforce a different standard since the agency has not proposed regulations and has not followed notice and comment procedures which are required before implementing regulations.
Of further note, EEOC historically has not pursued enforcement of the UGESP recordkeeping requirements. Instead, EEOC utilizes the requirement to compel production of records in order to conduct disparate impact analyses. And, OFCCP has committed itself in its new regulations to interpreting its own UGESP regulations in a way that would avoid inconsistent recordkeeping and data analysis requirements. It is unlikely two federal agencies jointly responsible for implementation and enforcement of UGESP would purposefully take contradictory positions, and the fact that EEOC has remained silent in the face of OFCCP’s regulations since 2005 suggests that there is no enforcement conflict.
For employers who are not subject at all to OFCCP’s regulations, but are subject to Title VII, the question of best practices in record-keeping continues. OFCCP’s regulations are insightful and provide good guidance to non-contractors seeking to comply with the UGESP under Title VII. A prudent, conservative approach would be to generally follow OFCCP’s recordkeeping requirements, as they are likely to yield the type of information that would be needed for a Title VII disparate impact analysis. We recommend that employers analyze their technical capabilities to manage such data.
Yet, the fact remains that absent EEOC regulations requiring specific record-keeping with respect to Internet Applicants, non-contractors do not as yet have a specific, defined record-keeping requirement. Such record-keeping requirements may be very burdensome, particularly for small employers. Therefore, some employers may choose to wait until EEOC issues proposed regulations on the subject before expanding their record-keeping. Although this position is somewhat risky, we believe that absent enforcement regulations on record-keeping, EEOC likely cannot compel employers to maintain such records.
At a minimum, employers should carefully analyze their hiring systems and;
Identify the positions for which the company does not consider individuals who submit an expression of interest through the internet or related technology.
Design a recruiting process that meets the employer’s operational needs, including when positions will be posted on the internet and applications accepted electronically.
Implement policies and specific procedures for expressions of interest in company positions. For example, implement a policy concerning unsolicited resumes, and resume submission procedures.
For more information, please contact Eric H. Rumbaugh at 414.225.2742, or firstname.lastname@example.org, Elizabeth M. Drew at 414.225.4921, or email@example.com, or Marion C. Smith at 414.225.2760, or firstname.lastname@example.org.