On October 7, 2005, The Office of Federal Contract Compliance Programs (OFCCP) issued its final ruling on the definition of an Internet applicant. The definition will go into effect February 6, 2006, thereby giving organizations a bit of time to work out details as to how they will meet the standards in their electronic recruitment programs.

The purpose of this article is to briefly describe the final definition, and explain a few of the important implications of this ruling. Because there are many implications, beyond the scope of this article, I recommend that employers covered by the OFCCP spend the necessary time to learn all that they can about this ruling. See http://www.dol.gov/esa/regs/fedreg/final/2005020176.htm.

Who Is an Internet Applicant?

In its final ruling, the OFCCP carefully considered public comments on the proposed definition, making a few changes in the final version. The final definition states that an Internet applicant is an individual who meets the following criteria:

1. The individual submits an expression of interest in employment through the Internet or related electronic means.
2. The company considers the individual for employment in a particular position.
3. The individual's expression of interest indicates that he or she meets the basic qualifications for the position.
4. The individual at no point in the recruitment process (prior to receiving an offer of employment) indicates that he or she is no longer is interested in the position.

In terms of the "basic qualifications for the position," as indicated in the third criterion, a basic qualification must meet the following conditions:

• It must be a non-comparative feature of the job seeker. (For example, if the job candidate has three years of work experience, a comparative feature might be that the job candidate has among the highest number of years of work experience.)
• It must be objective. (The job candidate has "a degree in accounting" would be objective, for example, while the job candidate has "a good degree" would be subjective.)
• It must be relevant to performance and enable the company to accomplish business-related goals.

Implications for Organizations

1. There is a distinction between which applicants the organization must keep records on, and which applicants are used to calculate disparate impact statistics. At the risk of oversimplifying, contractors must keep rather extensive records on candidates who expressed an interest in the position, regardless of whether they met the basic qualifications or not. However, only candidates who meet the criteria to be considered "applicants" are used in calculating disparate impact statistics.
2. Tests will not be considered basic qualifications. If you are hoping that your employment tests will be considered "basic qualifications" and thus can be used as a way to limit the number of candidates that the OFCCP will consider to be applicants, forget about it. The final ruling specifically states that tests will not be considered to be basic qualifications. As a result, you will not be able to use the test as a basic qualification to help you determine who is considered an applicant and who is not considered an applicant.
3. Careful training of recruiters and managers will be imperative. The final ruling puts a great deal of emphasis on a variety of records that need to be retained, as well as on establishing standard procedures and consistent decision-making. In order to follow standardized practices, organizations will need to ensure that recruiters and hiring managers are properly trained and understand the company's policies regarding recruitment.
4. Basic qualifications must be established in accordance with OFCCP requirements. I believe that there will be considerable discussion within organizations as to what the basic qualifications mean and how to create basic qualifications that meet OFCCP's definitions. Recruiters and managers will need training to understand what is acceptable here and what is not acceptable.

Conclusion

For organizations covered by the OFCCP, now is the time to make sure that you are in compliance with this new ruling and to properly prepare all recruiters and hiring managers. Don't wait until it is too late!