Technology-love it or hate it, we all depend on it. Recognizing that employers, job applicants, and recruiters have begun using the internet to facilitate the process of posting and filling jobs, the Office of Federal Contract Compliance Programs (“OFCCP”) has done what government agencies often do – issue a new and complex set of rules.

The OFCCP's newest rule imposes additional requirements on federal contractors and subcontractors who receive – and consider – job applications or resumes via the internet. The rule is effective February 6, 2006. The agency recently stated that it will not extend the deadline for compliance, although it will grant a “90 day grace period”. During this grace period it will not cite contractors for technical violations so long as the contractor can demonstrate that it is taking reasonable steps to update its systems to comply with the rule, provide a projected date of compliance, and collect and maintain records according to the record keeping requirements which were in place previously.

What is the practical effect of the rule?
On its face, the rule imposes new record keeping and solicitation of information requirements which many employers will find confusing and burdensome. Of perhaps greater importance, the rule can convert an audit for compliance with the agency's affirmative action plan requirements into a federal government investigation of an employer's hiring practices to determine whether the practices are discriminatory. The records the agency receives are generally accessible to those who will claim that an applicant or group of applicants was subject to illegal discrimination.

To whom does the rule apply?
The rule applies to federal contractors and subcontractors, including recruiters. It does not change the definition of federal contractor or subcontractor, but imposes new requirements related to retaining information and inquiring as to an individual's race, ethnicity, and gender.

Who is an internet applicant?
The rule has four prongs. Only those who satisfy all four prongs are considered internet applicants. The four prongs are:

1. The individual submits an expression of interest in employment through the internet or other electronic data technologies, such as a web site where resumes are posted.
2. The employer considers the individual for employment in a particular job.
3. The individual possesses the basic qualifications for the job.
4. The individual does not indicate a lack of interest in the position before a job offer is made.

What are the new requirements?
The contractor or subcontractor must:

1. Retain all electronic expressions of interest from job seekers if the employer considers the individual for a particular position – in other words, those individuals who meet the first two prongs of the definition.
2. Solicit and maintain demographic information on job seekers who meet the four part definition.

In most cases the records must be retained for two years. While these requirements may sound simple, in many cases they require employers to revamp the way in which hiring is accomplished.

Is there more?
Of course. The rule is only about a page and a half long, but the Preamble is close to 16 pages. The rule is very complex and full compliance will be a significant undertaking for most employers.

For example, the rule applies to positions for which the contractor accepts electronic expressions of interest such as resumes submitted by e-mail or searches conducted on external and internal websites where resumes are posted. In the case of electronic database searches, the contractor must retain a record of the position for which the search was conducted, the date of the search, and the search criteria. In the case of internal databases, the contractor must keep a record of the date each resume is added, the position for which any search is made, and the date and search criteria for each search. And if the contractor “co-mingles” electronic expressions of interest with traditional expressions of interest such as walk-ins, personal contact, and newspaper ads, the rules apply to the traditional applicants as well.

What should we be doing now?
Before the 90 day grace period expires, all employers should:

1. Determine whether your organization is a federal contractor and/or subcontractor. If not, the rule does not apply.
2. Determine whether your organization considers job seekers who submit resumes or applications via email and/or uses internal or external data bases of potential job applicants. If not, the rule does not apply.

If your organization is covered by the rule, consider undertaking some or all of the following steps:

1. Determine whether the organization has the technical capability to comply with the rule and if not, what it will need so that it can comply.
2. Review current job application and hiring processes to determine what, if any, procedures will need to change.
3. Determine whether the organization will forego accepting any electronic expressions of interest for some or all jobs.
4. Identify the jobs for which electronic expressions of interest will be considered and decide whether to also accept traditional expressions of interest for these jobs as well.
5. As to the jobs for which electronic expressions of interest are considered, establish and record the basic qualifications for each job.
6. Establish a system for matching expressions of interest with particular job openings.
7. Establish a system for dealing with unsolicited expressions of interest, expressions of interest that do not specify the job sought, that do not comply with the organization's established procedure, and other similar items.
8. Advise subcontractors of the need to comply with the new rule and consider systems to audit their compliance.
9. Set up a system for maintaining the required records.
10. Set up a system for soliciting gender, race, and ethnicity data.
11. Train recruiters and human resources personnel.

What about state law?
Minnesota law continues to apply to entities that are state contractors or subcontractors. At this point, it “simply” requires that an affirmative action plan be completed and submitted to the Minnesota Department of Human Rights. Whether the state will decide to follow the federal government's lead and venture into the area of regulating internet applications is anybody's guess.

How can I get more information?
Consult the Department of Labor's website, www.dol.gov, where you can find the text of the rule and FAQ's.