Recordkeeping Rule Clarifies OFCCPs Definition
Of Job Applicant for Internet and Related Technologies

WASHINGTON—The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) clarifies recordkeeping provisions concerning who is an applicant in the context of the Internet and related technologies. The final rule published in today's Federal Register applies to federal contractors who are subject to the recordkeeping provisions of the laws enforced by OFCCP.

This rule serves as an important tool to enhance OFCCP's enforcement of non-discrimination laws. In the mid-to-late 1990's, the advent of the Internet and other electronic technologies created a new on-line job market served by commercial and internal resume databanks and employer Web sites. This fundamental shift in the way individuals can apply for jobs and the consequences for employers of receiving potentially thousands of resumes made the existing applicant recordkeeping rules unworkable. The lack of guidance for federal contractors as to the department's interpretation of the recordkeeping rules for Internet applicants meant contractors could potentially have to ask everyone who has a resume on a commercial resume databank service for his or her race, ethnicity and gender whenever the contractor searched the databank to find candidates for a job. As a result, OFCCP's enforcement was hindered because it was often difficult to get the necessary data to effectively determine whether discrimination exists within a contractor's selection process.

This new rule provides clear guidance to allow us to better enforce the law, said Charles E. James, Jr., deputy assistant secretary for OFCCP. This final rule will enable OFCCP to effectively evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis. It also helps contractors by clarifying an ambiguity that, until now, left contractors guessing at what information they needed to collect from internet applicants.

An Internet Applicant, under the definition in the final rule, is an individual as to whom the following four criteria are satisfied:

(1) The individual submits an expression of interest in employment through the Internet or related electronic data technologies;

(2) The contractor considers the individual for employment in a particular position;

(3) The individual's expression of interest indicates the individual possesses the basic objective 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 or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

Federal contractors will have to provide race, ethnicity and gender information for those individuals who the contractor considers for a particular position and who possess basic qualifications. The rule also requires contractors to retain all expressions of interest by individuals considered and specifies records to be maintained about searches of internal and external databases. OFCCP retains the ability to assess whether selection criteria used by federal contractors are discriminatory.

The new applicant rule applies to jobs for which the contractor accepts expressions of interest via the Internet and related technologies, such as e-mail, commercial and internal resume databanks, and employer Web sites. For those positions for which the contractor does not use the Internet or related technologies, and does not accept any electronic submissions, the existing recordkeeping standards apply. When a contractor accepts expressions of interest for a particular position via the Internet or related technologies and paper applications, the Internet applicant rule applies.

OFCCP, an agency of the U.S. Department of Labor's Employment Standards Administration, enforces Executive Order 11246 and other laws that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veterans' status.

Archived News Release — Caution: Information may be out of date.