In a previous article, I discussed the EEOC's proposed definition of an Internet applicant. What you may not have known is that around the same time, the Office of Federal Contract Compliance Programs, or OFCCP (www.dol.gov/esa/ofccp/) as it is usually referred to, announced its own proposed definition of an Internet applicant. Briefly, the OFCCP has defined an Internet applicant as an individual who meets all of the following four criteria:

• The individual submits an expression of interest in employment through the Internet or related electronic data technologies.
• The employer considers the individual for employment in a particular open position.
• The individual's expression of interest indicates the individual possesses the advertised, basic qualifications for the position.
• The individual does not indicate that he or she is no longer interested in employment in the position for which the employer has considered the individual.

Recall from my previous article that the EEOC proposed rule has the following three criteria:

• The employer has acted to fill a particular position.
• The individual has followed the employer's standard procedures for submitting applications.
• The individual has indicated an interest in the particular position.

Under the EEOC proposed rule, the trigger is in the hands of the candidate, who must express an interest in a specific position and follow the procedures for submitting an application in order to be considered an applicant. However, under the OFCCP rules, it would appear that all the candidate must do is express an "interest in employment" and possess certain qualifications. The trigger is primarily with the recruiter or hiring manager, who must have considered the candidate for employment in a particular open position. Thus, under the OFCCP proposed rules, the employer seems to have a central role in defining who is, and who is not, an applicant.

You might be wondering what difference it makes as to whether the candidate or the employer has the central role in determining who becomes an applicant. I would submit that a major practical difference occurs in the following situation. As described in my previous article, the proposed EEOC rules contained an example to explain the first two points. The provisions describe a company that searches an applicant database in order to fill two vacancies. Based on this search and a follow-up inquiry by the employer, 100 of the applicants respond with interest, but only 25 are interviewed. According to the provisions, those 100 people who responded in a timely way would be considered applicants.

But if you apply the OFCCP criteria, it would seem that all 200 people identified by the company would be considered applicants, not just the 100 who responded affirmatively. It would seem that in the case of a resume database, a company conducting a search may have produced more applicants under the OFCCP proposed rules than under the EEOC proposed rules!

If your organization is covered by the OFCCP, you should consider the following suggestions:

1. Employers covered by the OFCCP may ultimately have to keep two sets of applicant records -- one set for the EEOC and one for the OFCCP. Any applicant tracking systems that are implemented must be able to properly track applicants based on these criteria.
2. Although standardized Internet recruitment systems may help prevent certain legal pitfalls, you will need to carefully monitor these processes to ensure that you are in compliance with all OFCCP and EEOC rules and regulations.
3. As standardized Internet-based systems are increasingly used, I suspect that enforcement agencies and plaintiffs' attorneys will make greater use of statistics to detect the presence of disparate impact.

In sum, whether you are a recruiter, an HRM manager, or an attorney responsible for employment discrimination issues, you will need to stay tuned to developments in this area. Although it is not known when the proposed rules will be finalized, or what they will ultimately look like, they are likely to affect the hiring process for years to come.