Federal Contractor and Subcontractor Internet Applicant Recordkeeping Rules

Federal contractors and subcontractors must collect gender, race and ethnicity information on each "applicant" for employment. This is the result of the long-awaited definition of "Internet Applicant" published on October 7, 2005 by the Office of Federal Contract Compliance Programs (OFCCP).

This 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 positions for which the contractor does not use the Internet or accept any electronic responses, existing recordkeeping standards apply.)

An "Internet Applicant" for whom records must be kept, is an individual who:

1. submits an expression of interest in employment through the Internet or related electronic data technologies;
2. the contractor considers for employment in a particular position;
3. whose expression of interest indicates the individual possesses the basic qualifications for the position; and
4. prior to receiving an offer of employment from the contractor, at no point removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

Recordkeeping requirements. Once the federal contractor or subcontractor determines that a jobseeker is in fact an "Internet Applicant" for whom records must be kept, all expressions of interest by individuals considered must be retained. There is a difference between whether someone counts as an "Internet Applicant" and what records the contractor is required to maintain. For "Internet Applicants," the contractor must not only keep records but also attempt to collect race, gender, and ethnicity information and run an adverse impact analysis. However, the regulations also provide that contractors must maintain any and all expressions of interest through the Internet or related electronic data technologies when the contractor considered the individual for a particular position, such as on-line resumes or internal resume databases and records identifying job seekers contacted regarding their interest in a particular position.

In addition, regardless of whether the individual qualifies as an "Internet Applicant," contractors are required, for internal resume databases, to maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search. Also, for external databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of any job seekers who met the basic qualifications for the particular position who are considered by the contractor.

The effective date for the final rule is February 6, 2006.

Reprinted with permission. © CCH