Within the past several years, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has promulgated regulations requiring federal contractors to maintain certain employment records for OFCCP compliance monitoring and other enforcement purposes. These regulations also require federal contractors to be able to identify, where possible, the gender, race and ethnicity of each applicant for employment. On October 7, 2005, the OFCCP issued a new regulation amending those recordkeeping requirements with respect to internet-based job applications. The regulation, which will become effective in February 2006, sets forth the first written standard on the definition of “internet application” for the purpose of the OFCCP’s enforcement of non-discrimination laws, and applies to federal contractors who are subject to the OFCCP’s recordkeeping provisions.

The new regulation provides long-overdue guidance for federal contractors, who sometimes receive hundreds, even thousands, of resumes and job applications on a given day from online applicants. This volume of applications and resumes represents a dramatic increase from the number of such documents received prior to the advent of the Internet in the 1990’s. As a result of this post-internet increase in the number of electronic applications, the existing recordkeeping rules had become impracticable, as contractors could potentially be required to ask for the race, ethnicity, and gender of every person with a resume on a commercial resume databank service in order to obtain the data needed to demonstrate that no discrimination existed within the contractor’s selection processes.

Under the new rule, federal contractors are required to provide race, ethnicity and gender information for online applicants only where those applicants are deemed to be “Internet Applicants.” The rule defines an “Internet Applicant” as an individual who:

  1. submits an expression of interest in employment through the Internet or related electronic data technologies
  2. the contractor considers for employment in a particular position
  3. demonstrates through his or her expression of interest that he or she possesses the basic objective qualifications for the position
  4. does not remove himself or herself from consideration at any point in the selection process prior to receiving an offer of employment from the contractor;

The new rule also requires contractors to retain all expressions of interest through the Internet or other related electronic data technologies from individuals considered for a particular position, and specifies records to be maintained about searches of internal and external databases. With respect to positions for which a contractor does not use the Internet or related technologies and does not accept any electronic submissions, the existing recordkeeping standards apply.

“This new rule provides clear guidance to allow us to better enforce the law,” said Charles E. James, Jr., deputy assistant secretary for the OFCCP. “This final rule will enable OFCCP to effectively evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis. It also helps contractors by clarifying an ambiguity that, until now, left contractors guessing at what information they needed to collect from internet applicants.”