December 12, 2005
Federal regulations mandate that covered federal contractors and subcontractors collect information about the gender, race and ethnicity of "applicants" for employment. This information is necessary in order for the Office of Federal Contract Compliance Programs (OFCCP) to enforce Executive Order 11246 and to review nondiscrimination and affirmative action programs.
In recent years, there was some confusion as to when contractors must compile information on those applications submitted via the Internet or other electronic means. The OFCCP recently issued final regulations detailing when identifying information must be solicited and retained for "Internet Applicants." (The regulations may be found at 70 Fed. Reg. 58946 (Oct. 7, 2005)).
Beginning February 6, 2006, contractors will have to retain data on "Internet Applicants." To be considered an "Internet Applicant" the following four criteria must be met:
(1) The person expresses interest in employment through the Internet;
(2) The person is considered by the contractor for employment in a particular position;
(3) The person’s expression of interest indicates that he or she possesses the basic qualifications for the job; and
(4) The person does not remove himself or herself from consideration at any point in the selection process, prior to receiving an offer of employment.
Notably, under these new regulations all applicants – even those who submit traditional hard copy application materials – will be considered "Internet Applicants" for recordkeeping purposes (assuming that they meet the other criteria listed above) if the contractor accepts any expression of interest via Internet or other electronic means.
Under this new definition, contractors do not need to collect data on every person who seeks employment. Contractors do not need to compile data on individuals who submit unsolicited resumes, who fail to satisfy the minimum qualifications for the position in question, or who withdraw from the selection process. Note, however, that an applicant is deemed to have withdrawn from the selection process only when he/she indicates that he/she is no longer interested in the position by his/her repeated non-responsiveness to inquiries from the contractor about his/her interest in the position.
Gibson, Dunn & Crutcher has organized a multi-disciplinary team of its labor & employment attorneys, who have extensive experience in representing clients in matters involving OFCCP regulations and audits, and its government contracts attorneys, who regularly advise clients on all aspects of operating in accordance with applicable federal regulations, to advise clients on these, and other, regulations.
Gibson, Dunn & Crutcher lawyers are available to assist clients in addressing any questions they may have regarding this issue. Please contact the Gibson Dunn attorney with whom you work, labor partner William J. Kilberg (202-955-8573, firstname.lastname@example.org) or government contracts partners Joseph D. West (202-955-8658, email@example.com) and Diana G. Richard (202-887-3572, firstname.lastname@example.org) in the firm’s Washington, D.C. office.
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