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

The hard part has been understanding the final rule’s recordkeeping requirements and implementing the technology required to support these requirements, as follows:

For internal databases (those owned or controlled by the employer), employers must maintain the resumes and candidate information on all job seekers who have been considered for a particular position, the date that the resume/candidate information was added to the internal database, search dates, search criteria, and the position for which each search was conducted. For external databases (those not owned or controlled by an employer), employers must maintain resumes and candidate information on all job seekers who meet basic qualifications, search dates, search criteria, and the position for which each search was conducted.

As employers have examined their recruiting and hiring practices and technology, they have become painfully aware of the difficulties in interpreting the final rule and implementing policies and procedures that comply with the regulations. Although new questions and concerns arise every day, some come up again and again, such as questions related to consideration and basic qualifications.

When has an employer “considered” an expression of interest?

For internal databases, the final rule requires employers to maintain records on all job seekers “considered” for a particular position. Some parties claim that an employer must visually or manually examine an expression of interest (resume or cover letter, for example) to meet the definition of consideration. Although manual inspection of an expression of interest represents one method of consideration, it is not the only method. The final rule states that:

“Considers the individual for employment in a particular position,” means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.

Certainly, an automated review, such as a search, can be used to identify candidates whose expressions of interest contain key words related to position qualifications. If a recruiter trying to fill a Java programmer position types “Java” as a search term and searches a candidate database of resumes, the expression of interest has been evaluated against the position requirements. The final rule provides a detailed discussion of the specific recordkeeping requirements for searching internal and external candidate databases. If an automated search is not a method of considering candidates, it seems unlikely that the OFCCP would have covered the issue in such detail in the final rule.

Further, when asked about this issue, the OFCCP responded that the substantive assessment of expressions of interest could be made by an automated function performed electronically — in other words, a search. A search, however, may or may not identify job seekers who meet basic qualifications. The effectiveness of the search for this purpose depends on the search criteria and the terms found in the resumes of those who meet basic qualifications. Do the resumes of job seekers who meet basic qualifications contain the words or terms used in the search? A manual review of the search results may identify any number of job seekers who do not meet the basic qualifications of a position. Although these job seekers have been considered, requiring an employer to save their records, they would not be applicants. Employers are not required to solicit EEO information from them.

What should be considered?

For the purpose of identifying applicants from all job seekers, only basic qualifications should be used in the early stages of consideration. Basic qualifications should be objective, non-comparative, and job-related. Most often, basic qualifications will address minimum education and experience and required training or certifications. Basic qualifications may also include eligibility to work in the United States, required security clearance, or similar work requirements. Employers, however, want to hire the most qualified, not the basically qualified. The final rule does not preclude employers from using additional methods to evaluate applicants and to identify the most qualified applicants. The consideration of basic qualifications may be used to differentiate job seekers from applicants, those whose EEO information must be solicited. Once an individual becomes an applicant, the employer may use additional assessments that go beyond basic qualifications, such as preferred qualifications or additional knowledge, skills, abilities, and other characteristics, to narrow the applicant pool to the individual who will be offered the position.

How should basic qualifications be considered?

In general, there are three types of expressions of interest that contain information on the basic qualifications of a candidate, and there are two methods that are used to compare the content of these expressions of interest to the requirements of a position.

The three types of expressions of interest that contain information about basic qualifications are a resume, a completed online application form, and a completed prescreening questionnaire that may be part of the initial online application. The two methods used to compare these expressions of interest to the job requirements are manual or visual inspection or through an automated review such as a search or automatic questionnaire scoring. The primary flaw with a search is that the effectiveness of the search depends on both the exact terms used in the search and the likelihood that a candidate who meets basic qualifications will use those exact terms in his or her resume or application form. Technology that parses resumes or application forms and places certain information such as education and experience into specific searchable fields in a candidate database may or may not increase the effectiveness of the search.

Ultimately, the most efficient and effective way to evaluate basic qualifications is through an online application with a prescreening questionnaire. This combination gives the recruiter control over the exact questions and response options. In addition, since the final rule provides that a candidate whose work preferences do not match the position requirements may be designated as not interested in the position and, therefore, not an applicant, a questionnaire can also be used to ask about a candidate’s work preferences.

Related Issues

Do I have to save search information if I am not trying to fill a particular position?

Searches may be useful for purposes other than filling a particular position. If a search is conducted for a purpose other than filling a particular position, the recruiter is not obligated to save the search information. For one, training on search technology will require recruiters and other users to create and run searches on either demo or live candidate databases. The purpose of these searches is to train recruiters — not to fill a particular position. Another example: The new regulations may encourage employers to assign certain recruiters to create the basic qualification searches for positions. In this case, these recruiters will run test searches to identify the best search terms associated with certain basic qualifications. The purpose of these searches is to identify the best search terms for other recruiters to use to fill a particular position. Finally, many recruiters are responsible for building and maintaining a talent pipeline of individuals with frequently needed skills and expertise. For example, a pharmaceuticals company may have a continuous need for individuals with pharmaceutical research experience. Recruiters may engage in search activities to identify individuals with these skills, even without a specific position in mind. If the activities are focused on building a talent pipeline and not filling a specific position, the search activity does not need to be logged. The caveat here is that the recruiter should not be trying to fill a current opening or one that will open in the near future when conducting these search activities.

Am I now required to only use searches or questionnaires to evaluate basic qualifications?

No. Although the first step in the recruiting and hiring process may be the use of a search tool or questionnaire to identify candidates who meet the basic qualifications of a position, you may use these tools later in the hiring process to identify applicants who are more qualified than others. The final rule focuses on how an employer identifies the applicant pool, not how an employer identifies who will be hired from the applicant pool. Once you have identified the applicant pool (those who meet the four criteria of the definition of an Internet applicant), the rest of the hiring process may be the same or similar to the process in place prior to the rule. That is, you want to identify the best qualified applicant for the position. You may accomplish this using additional searches, questionnaires, employment tests, or interviews, for example.

Can I use conceptual search?

Conceptual search purports to address many of the flaws with keyword searching. As mentioned above, the effectiveness of a search depends on the search criteria and the likelihood that a job seeker who meets basic qualifications will use those terms in his or her resume (or other searched text fields). If the recruiter lacks knowledge of the job and job-specific terminology or chooses to use “bachelor’s” instead of “BS” or “B.S.,” the search may not be effective in identifying all job seekers who meet certain qualifications. With conceptual search, a recruiter can enter a search term, string of terms, a resume, or other document as the search criteria. The search engine will analyze the information and identify job seekers whose resumes or other materials contain similar information. The use of conceptual search in compliance with the OFCCP’s final rule depends on the user’s ability to identify the search criteria actually used in the conceptual search. Since most conceptual search tools do not provide the user with such criteria, such as the actual search terms used, contractors may want to avoid the use of conceptual search.

Is prescreening an employment test?

A pre-screen may or may not be an employment test. The answer depends on the specific items or questions included in the pre-screen. If the items focus on objective, non-comparative, job-related qualifications, the pre-screen is a method to collect information on basic qualifications, not an employment test. If the items are scored for ranking purposes (i.e., comparative), the pre-screen is an employment test. The issues addressed here represent only a few of the questions and concerns raised so far by the OFCCP’s final rule on the definition of an Internet applicant.

As we implement policies and procedures and technology to comply with the regulations, we will undoubtedly identify others.

Note: This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

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

Based on the four criteria, contractors should develop their own definition of an applicant, which determines when they must solicit race and gender information — EEO data — for reporting the gender and racial makeup of the applicant pool. In addition, the final rule specifies recordkeeping requirements for employers using the Internet or related electronic data technologies for recruiting and hiring. Federal contractors must comply with the rule by February 6, 2006. Even though the final rule allows companies to restrict the size of their applicant pool through their definition of an Internet applicant, employers must carefully develop and implement policies and procedures which will support this definition, train recruiters on the new policies and procedures, and monitor adherence to the new policies and procedures. Companies that have allowed recruiters wide latitude in their day-to-day practices should develop standardized policies and procedures for using the Internet and related technologies for recruiting and hiring.

The following represent some recommended steps that employers can take to prepare for the February 6, 2006 deadline to comply with the final rule.

1. Identify which expressions of interest will be considered.

Although the final rule does not include the criteria that individuals must follow an employer’s policies and procedures for indicating an interest in employment, the final rule does allow employers to establish such practices regarding who will be considered. Employers who wish to restrict the size of the applicant pool may want to implement standard processes that limit the acceptable type of expression of interest and the acceptable method of submission. Some employers, for example, may decide that they will only accept a completed application form; others may accept resumes but only those that include three references; others may accept any type or form of resume. Employers may decide to restrict the method of submission to the company website; others may allow submission through email or faxes. However, recruiters must be consistent. Suppose an employer states that only expressions of interest submitted through the company’s website will be considered. If a recruiter later accepts a faxed resume, all faxed resumes would also be “considered.” The final rule’s recordkeeping requirements oblige employers to save all expressions of interest considered for a particular position.

2. Decide whether you will include basic qualifications in your definition.

Although employers consistently requested that the definition of an Internet applicant include a provision that applicants must meet minimum qualifications, employers should contemplate the time and effort required to incorporate basic qualifications into their definition. Establishing basic qualifications for all positions may be a monumental task for some employers. According to the final rule, basic qualifications must be advertised or established prior to recruiting for a particular position. Basic qualifications must be non-comparative, objective, and job-related. In addition, the final rule clearly states that tests are not basic qualifications. Given the OFCCP’s statements that it will evaluate the adverse impact of basic qualifications using external sources of data such as the census or legal precedent, employers should either take the steps required to establish non-comparative, objective, job-related basic qualifications for all positions or else exclude this criterion from their definition. Excluding this criterion from the definition simply requires the employer to collect and report EEO data on a larger applicant pool.

3. Decide whether you will use work preferences to identify those not interested in a position.

Individuals who withdraw from the recruiting and hiring process or otherwise indicate disinterest in further consideration for a position do not have to be reported as part of the applicant pool. The final rule indicates that an individual’s stated work preferences may be used to gauge interest in a position. For example, if a person’s salary, travel, or work location preferences do not match the position requirements, the employer may categorize this individual as not interested in the position and remove them from the applicant pool. However, recruiters must apply this criterion consistently. Suppose an employer states that an individual’s salary preferences will be compared to the position salary to identify those interested in the position. If a recruiter decides to bring in a person for an interview even though his/her salary preference exceeds the position salary, all individuals whose salary preferences do not meet the position salary must be included as applicants.

4. Establish policies and procedures around search behavior.

Based on the final rule, an employer considers a job seeker when it compares the job seeker’s qualifications to the position requirements. When recruiters search internal or external databases and identify potential applicants for a position as those who show up in the search results, they have considered everyone in the searched database. Among other items, all search criteria and the dates of searches must be saved, along with the position for which the search was conducted. The OFCCP could request information on searches conducted for any position to look for signs of disparate impact or treatment. If a recruiter uses different search terms at different times or with different resume databases to fill one specific position, the recruiter has treated job seekers for the same position differently. If this treatment places females or minorities at a disadvantage in the hiring process, the OFCCP may file a claim of disparate treatment against the employer. Search terms applied consistently to all job seekers for a particular position may still have a disparate impact on females or minorities. Using geographic searches or searches for specific education, such as science degrees, may result in a disproportionate number of minorities or females being excluded from further consideration. If the employer can not justify the use of the search terms as job related, the OFCCP may file a claim of disparate impact against an employer. Finally, initial searches to narrow the applicant pool should be based solely on basic qualifications. Recruiters will need to know the basic qualifications for each position and acceptable search terms to reflect these qualifications. They will also need training on how to ensure that the appropriate records are saved related to each search.

5. Make decisions about data management techniques.

The final rule acknowledges that a recruiter may conduct a search on basic qualifications and still end up with an unmanageable number of job seekers. In this case, employers may use data management techniques to further narrow the potential applicant pool. Data management techniques include race- and gender-neutral methods to identify a subset of job seekers that are unrelated to the assessment of job qualifications. Examples include sorting expressions of interest by submission date and picking the first fifty or using a random sampling technique to identify a subset of individuals. Decisions about which methods to use and when to use these methods should be established, and recruiters should receive appropriate training.

6. Monitor adherence to policies and procedures.

As mentioned, a recruiter’s actual practices may invalidate stated policies and procedures. Employers should establish some method to ensure that all policies and procedures are being followed. The recommended steps above represent only a few of all of the issues facing employers who want to comply with the OFCCP’s final rule on the definition of an Internet applicant. Given the myriad ways of using technology to recruit and hire for open positions, employers will need to carefully develop policies and procedures for using recruiting and hiring technology in a manner consistent with the final rule in order to maintain compliance with federal recordkeeping and reporting regulations.

Note: This article is provided for informational purposes only and is not intended to offer specific legal advice.