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Department of Labor rules requiring federal contractors to collect information concerning Internet applicants went into effect Feb. 6. Those covered by the rules may be able to take four relatively simple steps to comply. The Internet applicant final rule, 41 CFR Part 60-1 (Rule), issued by the Department of Labor’s Office of Federal Contract Compliance Programs, set forth an obligation to solicit race and gender data for agency enforcement purposes. It also addresses hiring record requirements for federal contractors and subcontractors with respect to the solicitation of race, gender and ethnicity of Internet applicants. As of Feb. 6, all federal contractors and subcontractors, as well as employment outsourcing firms and employment agencies that have contracted to comply with the rules governing federal contractors and subcontractors, must solicit demographic information about Internet applicants and retain the records required by the rule for hiring decisions. The rule does not apply retroactively to hiring decisions made before Feb. 6. OFCCP requires affected federal contractors and subcontractors to obtain gender, race and ethnicity data on employees and, where possible, on applicants in accordance with 41 CFR 60-1.12(c). The OFCCP requires such data for several purposes relating to contractors’ administration of nondiscrimination and affirmative action requirements, as well as to monitor compliance with OFCPP requirements. The rule assists federal contractors and subcontractors in applying data collection compliance rules to Internet applicants. THREE MAJOR ELEMENTS The rule has three major elements. The first defines “Internet Applicant” as a person who satisfies the following four criteria: 1. the individual submits an expression of interest in employment through the Internet; 2. the federal contractor or subcontractor 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; and 4. the individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor removes himself from further consideration or otherwise indicates that he is no longer interested in the position. Second, the rule prescribes the records contractors must maintain for all hiring done through the Internet. The rule requires a federal contractor or subcontractor to maintain any and all expressions of interest through the Internet as to which the contractor considered the individual for a particular position. Contractors also are to maintain records identifying job seekers contacted regarding their interest in a particular position. According to the OFCCP (see www.dol.gov/esa/regs/compliance/ofccp/faqs/iappfaqs.htm#Q5), for internal r�sum� databases, the contractor must maintain a record of each r�sum� added to the database, a record of the date each r�sum� was added to the database, the position for which each search of the database was made and corresponding to each search, the substantive search criteria used and the date of the search. The OFCCP Internet site also requires that for external r�sum� databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the r�sum�s of any job seekers who met the basic qualifications for the particular position who are considered by the contractor. Finally, the rule details the records contractors will be asked to produce during an OFCCP evaluation pursuant to 41 CFR Part 60-3, the Uniform Guidelines on Employee Selection Procedures. For purposes of the rule, the Internet means six types of Internet-related technologies and applications. These technologies and applications include: � electronic mail/e-mail; � r�sum� databases maintained by employers, professional recruiters and other third parties that can be searched using various criteria to match job seekers to potential jobs in which they may be interested; � job banks used by seekers to identify jobs for which they may have some level of interest; � electronic scanning technology, which is software that scans r�sum�s and individual profiles contained in a database to identify individuals with certain credentials; � applicant tracking systems/applicant service providers, which allow employers to collect and retrieve data on a large number of job seekers in an efficient manner; and � applicant screeners. APPLYING THE RULE The rule may be applied as follows: A federal contractor or subcontractor initially searches an Internet job database with 5,000 job seekers for three basic qualifications for a New York and New Jersey licensed contract attorney (a law degree, state certification as member of the New Jersey and New York Bar, contract law experience). The initial screen for the first three basic qualifications narrows the pool to 1,000. The contractor then adds a fourth, pre-established, basic qualification, five years or more of private practice experience, and narrows the pool to 100. Finally, the contractor adds a fifth, pre-established, basic qualification, two years of supervisory experience, which results in a pool of 10 job seekers. Under the Rule, only the 10 job seekers meeting all five basic qualifications would be Internet applicants, assuming the other three prongs of the “Internet applicant” definition were met. Practically speaking, a federal contractor or subcontractor can take four relatively easy steps to ensure substantial compliance with the Rule. First, implement a single hiring process. Do not make distinctions on the classification of applicants with respect to the use of an Internet application. Second, a federal contractor or subcontractor can give written or electronic notice of the fact that a single hiring process, which doesn’t distinguish on the classification of applicants with respect to the use of an Internet application, has been implemented. Thus, in the event a violation of the rule occurs, the federal contractor or subcontractor will be able to demonstrate the attempt to comply and argue the violation was due to the action of a rogue employee. Third, technology should be implemented by a federal contractor or subcontractor to ensure that there is a consistent process in place to remain compliant. Compliance is not a one-time event, and the implementation of technology to guarantee that there is a consistent process in place to remain compliant may also be useful to demonstrate a valid compliance attempt in the event of a violation claim. Finally, a federal contractor or subcontractor should implement a process that systematically gathers and tracks affirmative action data from Internet applicants. Since federal contractors and subcontractors are required to collect such data today, the use of a unified standard hiring procedure would result in compliant results. It should be noted that OFCCP has indicated that for a 90-day period following Feb. 6, it will not cite a contractor for a purely technical record-keeping violation for failure to comply with the rule, provided that the contractor demonstrates that it is in the process of complying and that it collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that pre-existed the rule, i.e., 41 CFR 60-1.12. Jonathan Bick is of counsel to WolfBlock Brach Eichler of Roseland, N.J., and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of “101 Things You Need To Know About Internet Law” [Random House 2000].

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