Approximately one-and-a-half years after issuing a proposed definition of electronic applicants, the Office of Federal Contract Compliance Programs (OFCCP) has issued its final ruling on October 7, 2005. 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.

In its final ruling, the OFCCP carefully considered comments on the proposed definition, making a few changes in the final definition. While a detailed review of the OFCCP's explanation for the reasons behind the final definition is beyond the scope of this "Breaking News" bulletin, it is noteworthy that 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; and
  4. The individual at no point in the recruitment process (prior to receiving an offer of employment) indicates that he or she no longer is interested in the position.

In terms of the "basic qualifications for the position," as indicated in the 3rd criterion, a basic qualification must meet the following three conditions:

  1. it must be a non-comparative feature of the job seeker (e.g., 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);
  2. it must be objective (e.g., the job candidate has "a degree in accounting" is objective; the job candidate has "a good degree" is subjective);
  3. the qualification must be relevant to performance and enable the company to accomplish business-related goals.

As companies prepare to meet the requirements of the new definition for Internet applicants, they should also review the entire recruitment process to ensure that they are fully meeting legal requirements in regards to adverse impact, validity, and related concepts.

The pertinent section of the Federal Register may be obtained here.

Michael M. Harris, Ph.D.
Litigation Support Services
(mharris@easiconsult.com)