In this Bloomberg BNA Q&A, HR consultant Carla Irwin advises federal contractors that smart compliance with the internet applicant rule enforced by the Office of Federal Contract Compliance Programs starts with identifying all the ways in which the company recruits and screens job applicants.

Under OFCCP's internet applicant rule, individuals who submit resumes or applications via the internet are considered "applicants" for purposes of contractors' affirmative action and recordkeeping obligations if they meet four criteria.

Those criteria are: the individual submits an expression of interest in employment through the internet or related technologies; the contractor considers the individual for a particular position; the individual's expression of interest indicates he or she has basic qualifications for the position; and the individual does not remove himself or herself from the further consideration or otherwise indicate he or she is no longer interested in the position.

The internet applicant rule also requires contractors to solicit race, gender and ethnicity data from all individuals who meet the definition of an applicant. "An adverse impact analysis is required of those that meet all four prongs of the definition of an internet applicant," Irwin said in this email Q&A.

Her practical advice to contractors on the rule is "short and sweet." Besides knowing how job applicants are reaching your door step, contractors should "develop processes for data collection and recordkeeping" on job applicants "along with strict adherence to those processes," Irwin recommended.

Bloomberg BNA: What compliance areas of the internet applicant rule do most federal contractors struggle with?

Irwin: Recordkeeping is always an ongoing issue for contractors, but one area in particular is recordkeeping and documentation for those job seekers that come in through sources outside the company's website which feeds their applicant tracking system (ATS). 

These sources include search firms, job fairs, campus recruiting, external databases searches, such as job boards and LinkedIn, and referrals. A company's ATS makes recordkeeping more automated, if a company accepts expressions of interest outside their ATS they must create manual process for recordkeeping compliance.

OFCCP has published many FAQs to help contractors interpret the internet applicant rule and has recently published a new FAQ on recordkeeping as it applies to job fairs.

Bloomberg BNA: How is social media affecting compliance with the internet applicant rule?

Irwin: The use of social media in the recruitment and hiring process can be used as a tool to screen candidates that have already been identified or it can be used to identify potential candidates. 

There is a lot of controversy out there on the use of social medial to screen candidates due to the availability of "protected" information including race, ethnicity, gender and religion. One way in which social media impacts internet applicant rule compliance is in its use as a recruitment tool. 

LinkedIn is a tool many HR professionals and recruiters are using today to source potential candidates, but unlike job boards where the job seeker has posted their resume with the explicit intent to express their interest in employment, LinkedIn is a professional networking site where users publish their profiles for networking purposes. 

This differentiation blurs the line of the first prong of the internet applicant rule in which the "individual submits an expression of interest in employment through the internet or related electronic data technologies."

It is important for contractors to create processes to ensure compliance when using social media tools. Contractors need to identify the different types of social media they are using, the ways in which it is being used and those that are using it. 

Things to consider when creating these processes: Should hiring managers use social media tools for evaluation of applicants?  How will I record and maintain applicant records identified through these tools? Which types of social media is your company comfortable with using--Facebook, Twitter or LinkedIn?

As with many things when it comes to compliance, discuss this issue with your legal counsel to determine the company's desired strategy.       

Bloomberg BNA: Do any of the new proposed rules issued by the OFCCP under Section 503 of the Rehabilitation Act and the Vietnam Era Veterans' Readjustment Assistance Act affect the internet applicant rule?

Irwin: The proposed regulations for Section 503 and VEVRAA would require contractors to maintain records and conduct analysis of veterans and individuals with disabilities that are referred to them by the One-Stop Career Centers or from the linkage agreements. 

In theory, a contractor could have recordkeeping requirements for individuals who have only expressed an interest in employment and have not been considered by the contractor. In addition the contractor could be conducting analysis on individuals who do not meet the basic qualifications or who have withdrawn from consideration prior to offer.

The proposed data collection, retention and analysis requirement as proposed does not seem to follow the internet applicant rule. This conflict has been brought to the attention of the OFCCP through the many comments it received after publication of the notice of proposed rulemaking. It will be interesting to see how the OFCCP responds to and reconciles this issue. 

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If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.