Infotech and the Law: Final rule on diversity hiring covers online applications

Jonathan Cain

A new affirmative action recordkeeping rule for government contractors went into effect Feb. 6. The final rule, issued last fall by the Office of Federal Contract Compliance Programs, requires federal contractors to collect gender, race and ethnicity data on employees and applicants who submit employment applications via the Internet. Contractors that use online employment applications or resume databases will need to submit the data in their annual EEO-1 reports and during compliance audits.

Under the rule, an Internet applicant is a person who applies for a job online and whose expression of interest shows he or she has the basic qualifications for the position, who the contractor considers for a particular position, and who does not withdraw from consideration for the position before being extended an offer by the contractor.

Contractors are not required to keep dual systems of records for Internet applicants and regular applicants. A single database of all applicants is acceptable. If the contractor invites electronic job applications, the contractor must consider both Internet and regular applicants for the position.

A contractor doesn't have to consider any applicants who fail to comply with its procedures. An employer need not consider every application received, but the selection of those considered must be neutral, a random sample for example, and not based on an assessment of the information in the resumes.

Next, employers must make objective decisions about whether an applicant has the basic qualifications for a position. The job requirements must be relevant to the business requirements and must be written in such a way that each application can be evaluated against the criteria independent of other applications for the position.

The criteria must be objective, such that someone unfamiliar with the requirements of the position could compare the criteria with the applicants' resumes and determine which were qualified and which were not.
In addition to establishing new minimum procedures for online job application reviews, the OFCCP also imposes new recordkeeping requirements. Contractors now must maintain records of all expressions of interest that job applicants submit online, and who the contractor considers for a position even if it later determines that the candidate was unqualified. In addition, contractors must retain records of any prospect who was contacted regarding a particular position.

A contractor cannot avoid the obligations to adhere to the substantive review or the recordkeeping requirements of the new rule by outsourcing the employment function to a third party. The contractor remains responsible for ensuring that its employment services vendor has adjusted its practices and data collection and retention procedures to comply with the new requirements.

Contractors should take steps now to review their process for establishing basic qualifications for positions and the statements of requirements that describe those qualifications for each position. They should review their procedures for handling unsolicited resumes, however received, and should review their online employment sites to be certain that they comply with the new rules. If the hiring function is not centralized in the contractor, this is an opportune time to provide some training to ensure that all expressions of interest are handled consistently throughout the company.

Jonathan Cain is a member of the law firm Mintz Levin Cohn Ferris Glovsky and Popeo PC in Reston, Va. The opinions expressed in this article are his. He can be reached by e-mail at jcain@mintz.com.

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