These last two weeks we have been delving into Affirmative Action. Let’s assume your company is a federal contractor — or sub-contractor–and is therefore subject to Affirmative Action requirements. (Click here and here to review those definitions.) You must then solicit race, ethnicity and gender data from all “applicants” for employment. There is no specific time at or by which the contractor must do so, however. You may even voluntarily solicit the same data from job seekers who are not applicants, but may only use such information for your affirmative action and equal employment opportunity programs. But who and what is an “applicant”? What if any difference is there between a “job seeker” and an “applicant”? Let’s get some answers, after the jump…
(image from money.cnn.com)
Before 2006, federal contractors had little help in answering that question. The Uniform Guidelines on Employment and Selection Procedures (UGESP) was the sole resource and it essentially defined an “applicant” as “a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. ” The UGESP further stated that one could express interest in a job either orally or by filling out a job application, “depending on the employer’s practice”. In 2006, however, the OFCCP stepped in and promulgating its own rules, and definition, which lists the following criteria:
- S/he submits an expression of interest in employment through the internet or related electronic data technologies;
- S/he is considered by the contractor for a position;
- His/her expression of interest indicates s/he has the basic objective qualifications for the position;
- S/he at no point in the contractor’s selection process prior to receiving a job offer removes him/herself from the consideration process or indicates that s/he is no longer interested in the position.
This rule, of course, assumes that the person applies through the internet or some other electronic means. In fact, this rule is known as the “Internet Applicant Rule”. What if someone expresses interest in a job, but does not use the internet or related electronic data technology? Does your company consider expressions of interest through traditional means as well as the internet? If so, then the above definition will apply to both types of submissions. If not, then you do not have to include someone expressing interest through non-electronic means as an applicant. Theoretically, a company might not consider expressions of interest via the internet or related electronic means. The OFCCP’s rule would therefore be of no help. If for any reason that is your company, you will have to be very clear on defining who are your “applicants”, but make sure your criteria are objectively reasonable. (In this day and age it seems pretty unlikely that a company would never use the internet “or related electronic means”, in which case, the OFCCP’s rule will probably apply.)
Let’s assume, then, that if you are a federal contractor, the “Internet Applicant Rule” does apply to your company. Now what? Well, let’s break it all down.
What does it mean to “consider” a candidate? Generally, a contractor has “considered” a job-seeker for a job when it reviews whether the job-seeker meets any of the criteria. That said, you do not have to consider any and all expressions of interest you receive, regardless of the manner or nature of the expression of interest–even if the job seeker has the basic qualifications for the job. If you have established a standard procedure that job-seekers must follow in order to express an interest in employment, you do not have to consider job-seekers who do not follow those procedures. For example, you can refuse to accept unsolicited resumes, or refuse to accept resumes that are not submitted in connection with a particular position. You could also accept only a random sampling of “expressions of interest” or otherwise limit the number of expressions of interest accepted. When you narrow the pool of those expressing interest in the job, you also reduce your record keeping and tracking requirements. As long as the exclusions are not based on the job-seekers’ qualifications, and as long as an appropriate applicant pool remains, the method will be an acceptable means of narrowing the pool of people “considered”. A contractor who receives but does not review a resume based on the types of appropriate management techniques described above, has not “considered” the job seeker and s/he is not an (internet) applicant—as long as those techniques a) are facially neutral; and b) do not produce a disparate impact, based on race, gender or ethnicity.
An “Internet Applicant” can also remove him/herself from consideration for the job. How does one remove oneself from consideration for a job? How does a contractor determine that a job-seeker has done so? A contractor can conclude that a job seeker is no longer interested in a position by either relying on his or her express statement or by his or her passive demonstration of disinterest. The following are examples of “passive demonstration of disinterest”:
- Declining an invitation for a job interview;
- Declining a job offer;
- Repeatedly failing to respond to a contractor’s telephone inquiries or emails asking about his or her interest in the job. (The OFCCP has stated that two or more non-responses to contractor inquiries is sufficient for the contractor to conclude that the candidate is not interested in the position).
You can also presume a job seeker’s lack of continuing interest based on a review of his or her interest. Here are some examples: a) statements pertaining to the individual’s interest in the specific position or type of position at issue; b) statements pertaining to the location of the work; c) statements pertaining to salary requirements—as long as the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. A word of caution here: Even if an applicant withdraws him/herself from consideration for a particular position, you must still retain any record of the person’s expression of interest if s/he qualifies as an internet applicant. Similarly, you must still retain other required records, such as statements of withdrawal, demographic data previously solicited from the candidate, and test results. You do not however need to solicit demographic data from the candidate if you did not do so prior to him/her withdrawing from consideration.
You see where this is going, right? If someone is an applicant, you may have to collect demographic data, and you will have to track what happens with the candidate and keep records.
OK, one last question: What are “basic job qualifications”? They are qualifications you advertise or establish in advance. They must include non-comparative features, such as three years’ experience, rather than “the top five” candidates in a particular field, must be objective (e.g. a Bachelors’ Degree) and relevant to the performance of a particular job. For example, you search an external job base with 50,000 job seekers for 3 basic qualifications for a bi-lingual emergency room nursing supervisor: 4-year nursing degree, state RN certification, fluency in English and Spanish. In the initial screen you narrow the pool to 10,000. You now add a fourth qualification, 3 years E.R. nursing experience. Now you’ve narrowed the pool to 1,000. You then add 2 years of supervisory experience as a fifth qualification, narrowing the pool to 75. Under the Internet Applicant Rule, only those 75 job seekers meeting all 5 qualifications are Internet Applicants (assuming the other 3 prongs are met) and your tracking and record keeping requirements only apply to those 75 job seekers. While you need not include basic qualifications in job descriptions, you do need to advertise them to job applicants, or, if you don’t advertise, you must establish them in advance and create and maintain records of such qualifications.
OK, I think we have a decent handle on who is an “applicant” for affirmative action purposes. Let’s stop here for now. See you next week.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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