Q.     What is the definition of applicant with respect to new web-based selection process to be implemented at the University? (question and answer dated 2-23-09)

A:          At the moment, there is not much guidance on this definition.  The U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) appears to offer the only specific guidance on this topic.  The EEOC withdrew its consideration of a definition of “job applicant” for internet and electronic technologies on March 17, 2008, and the National Center for Education Statistics (NCES) does not provide a definition of “applicant” in any regard for the Integrated Postsecondary Education Data Systems (IPEDS). 

            By way of background, the federal agencies that enforce federal equal employment opportunity laws have attempted to reconcile any differences that they might have had with respect to enforcement actions.  Thus, in 1979, the Departments of Justice, Treasury and Labor, the EEOC and the Office of Personnel Management developed the Uniform Guidelines on Employee Section Procedures to establish a uniform Federal government position on selection issues. 

 

The same effort was attempted when the OFCCP passed its final rule on the “Internet Applicant” recordkeeping requirements in 2006.  However, the federal agencies have not had developed uniform guidelines for enforcement.  Thus, practitioners refer to the OFCCP’s definition of an “Internet Applicant” as the industry standard at this time.  Thus far, the OFCCP’s definition of an “Internet Applicant” has not been litigated. 

 

            Under the OFCCP, an employer is required to solicit demographic information from job seekers who apply for work through “the Internet or other electronic data technologies.”  This includes “expressions of interest” through web-based application processes, email, resume databanks, job banks, electronic scanning, applicant tracking systems, applicant service providers, and facsimiles.  According to the OFCCP, expressions of interest received through voice over internet protocol (VOIP) are not included.

 

            A job seeker must satisfy all 4 of the following criteria before he or she is considered an “Internet Applicant”:

 

1)      The individual submits an expression of interest in employment through the Internet or related electronic data technologies

2)      The employer 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 does not remove himself from selection process at any time prior to receiving an offer or otherwise indicates that he is no longer interested in position

 

 

With respect to the first criterion – that the individual submits an expression of interest in employment through the Internet or related electronic data technologies, the OFCCP allows certain strategies for reducing the number of “expressions of interest,” such as a policy that excludes applicants who do not follow the University’s application procedures, who submit unsolicited resumes for no particular position, and data management techniques (such as the first 50 applicants or a random sampling).  Such policies must be uniformly and consistently applied.  A policy (that no application will be considered if not submitted via the website, etc.) should be stated clearly on any posting.  If the University considers an application that is received outside of the website, all applications from any source may be considered potential applicants.

 

With respect to the second criterion – that the employer actually considers the individual for employment in a particular position, the OFCCP regulations state that an applicant is considered for employment in a particular position if the employer assesses the substantive information provided in the expression of interest with respect to any qualifications for particular position.  Thus, there must be a substantive review of the application for an individual to have been “considered” for the position.  In other words, a job seeker does not qualify as an “Internet Applicant” if the University does not consider the expression of interest because it was not submitted pursuant to protocol or established standard, if it is an unsolicited resume (i.e., applicants that are not submitted with respect to a particular position), or if the University uses data management techniques to reduce the applicant pool (such as random sampling or absolute numerical limits).

 

Third, under the third criterion, a job seeker must possess the basic qualifications for a particular position before he or she qualifies as an “Internet Applicant.”  The basic qualifications must be established in advance, establish noncomparative features (such as requiring 5 years experience instead of seeking the candidate with the most experience or a range of experiences), be objective (i.e., requiring a specific degree instead of requiring any degree from a good school), and be relevant to the particular position and enable the University to meet business-related goals.  The basic qualifications should be listed on the posting, but they are not required.  If the basic qualifications are not advertised, the University must ensure that they are established prior to any consideration of any applications.

 

            Lastly, if an individual withdraws from the selection process and expresses disinterest from any further consideration, he or she does not have to be reported as part of the applicant pool.  If, for instance, a person’s salary requirement, travel restrictions or work location preferences do not match with the position requirements, he or she may be categorized as not being interested in the position and be removed from the applicant pool.  This policy must be applied consistently and uniformly.  If you interview someone whose salary requirement is higher than the position salary, all individuals whose salary preferences do not meet the position salary must be included as applicants (if all other criteria are satisfied).  In addition, if an applicant does not return 2 or more attempts to contact them for further processing, he or she may be considered to have voluntarily withdrawn from consideration.  As a matter of policy, the University should develope standard recordkeeping procedures to track disinterested candidates or withdrawals, including (1) the reason for removal, (2) the number of attempts to contact the individual, (3) the means of communication, and (4) the dates of each contact or attempted contact.

 

            By way of comparison, because the EEOC has not yet adopted any guidelines on an “Internet Applicant,” it may refer to the definition of “Applicant” under the Uniform Guidelines on Employee Selection Procedures.  The UGESP definition provides that an “applicant” depends on the employer’s recruitment and selection procedures, and that conceptually, it encompasses all individuals who indicate an interest in being considered for hiring, promotion or other employment opportunities (such as completing a form or whatever is accepted as practice).  The “Internet Applicant” definition can be integrated with this more general guideline, as long as the procedures and policies are uniformly and consistently followed and applied.

 

            As for the timing of the solicitation of demographic information, there is no specific requirement.  However, under OFCCP regulations, the data is only required to be collected from individuals who meet all 4 criteria for an “Internet Applicant.”  Thus, some practitioners have suggested that the solicitation does not have to occur until the hiring process is completed or the position is filled, at which time the employer would know the applicant pool for the position.  The OFCCP provides an example:  If the pre-established basic qualifications create a pool of 10,000 applicants, the employer can apply another pre-established preferred criterion that reduces the potential pool to 5,000.  The employer can continue to apply pre-established qualifications and when all such qualifications are applied, if the remaining pool consists of 25 applicants, only the demographic data from those 25 applicants need to be collected and reported.

 

            At all times, self-identification should be voluntary and an individual’s refusal to provide the information must not prevent the submission of an applicant.  If the individual declines to provide the information, visual observation is permissible.  In addition, the demographic information must be kept separate.  In practical terms, an “electronic tear sheet” on a web-based application process will only be effective in collecting the data that you are required to collect if the system can be programmed to determine if an individual satisfies all 4 criteria for an “Internet Applicant.” 

 

           The following definition of “applicant” incorporates the above-mentioned requirements:

   

Definition of “applicant”

 

An individual who submits an expression of interest for employment (1) through website, (2) who indicates he or she has the basic qualifications for the position (3) in a particular position that exists at the University, (4) who is actually considered for employment in that particular position, and (5) who has not voluntarily withdrawn his or her application prior to receiving an offer of employment.

 

An individual is not an “applicant” if he or she (1) does not submit an expression of interest through website, (2) does not possess the basic qualifications, (3) submits an unsolicited resume, (4) does not indicate a particular position that exists at the University, and (5) is not considered for the position in any substantive manner.

 

Answer Courtesy of Yoora Pak, Attorney at Law, Wilson Elser Moskowitz Edelman & Dicker LLP