Q&A: Big Data Can Be Double-Edged Sword Under OFCCP’s Internet Applicant Rule

Big Data_OFCCP

Federal contractors have to think strategically about using software programs to scan online resumes because of the Office of Federal Contract Compliance Programs’ interpretation of its Internet applicant rule, Cara Yates Crotty, a partner in Constangy, Brooks, Smith & Prophete, LLP in Columbia, S.C., told Bloomberg BNA.

The Age of Big Data Arrives 

“I think it’s time for the OFCCP to reexamine its FAQs on the Internet applicant rule. It’s been a decade since the rule was released, and technology has changed so much,” Crotty said during an interview with Bloomberg BNA at the annual conference of the National Industry Liaison Group (NILG). The conference was held in Charlotte, N.C., in early August. 

For federal contractors, the issue becomes how can “we use the new technology that is available and still be OFCCP compliant, and thus limit or eliminate our potential risk,” she said. 

Crotty’s observations come at a time when more employers are turning to software products embedded with big data analytics to assist them in finding and recruiting online job seekers. Still, some observers contend that if not properly designed, big data algorithms may lead to unintentional discrimination.  

Her Beef with Agency’s Position 

Crotty, the new general counsel to the NILG board, in a recent blog post said that the OFCCP should update its frequently-asked-questions guidance on the subject of software programs assessing online job seekers’ qualifications. She discussed the post with Bloomberg BNA at the conference and responded to a follow-up question via e-mail.

Implemented in 2006, the Internet applicant rule (41 C.F.R. §§ 60-1.3 and 1.12) says, in part, that an online job seeker may become an Internet applicant if the contractor considers the individual for a particular position. 

In the blog piece, Crotty said the agency’s position that using software programs to scan for specific terms to assess online candidates’ qualifications triggers the “considered” requirement under the rule hinders federal contractors from taking full advantage of new technology to find top-notch talent. 

The four-prong rule allows contractors to limit the number of online job candidates included in applicant pool data that is analyzed for potential adverse impact. And as the saying goes, big numbers are bad numbers with regard to statistical analyses for adverse impact.

“Employers have these wonderful types of technologies to help them find the best candidates. Yet, we have a real-world practical issue:  the technology may help employers identify the most qualified candidates more easily and more quickly, but that comes at the cost of ‘considering’ everyone who expressed an interest in the position. 

Many employers feel that they can’t necessarily take advantage of some of that new technology based on the OFCCP’s interpretation of the Internet applicant rule,” Crotty said. 

Basically, a nonhuman assessment of an online candidate’s qualifications increases the contractor’s regulatory obligation to identity the individual as an Internet applicant who must be included in compliance reporting data. 

“Potentially, they are using the technology to search for specific terms listed on online resumes and ranking the best candidates. But in doing so, all of those applicants are being considered under the Internet applicant rule. But of course, the whole purpose of the Internet applicant rule was to try to avoid large applicant pools,” she added. 

It’s a No-Brainer 

Crotty told Bloomberg BNA and her blog readers that a workplace advice columnist’s response to a reader, who wasn’t having much luck in finding a new job when applying through online job boards, prompted her to write the blog.

The columnist had responded in part that more companies “rely on computerized systems that scan resumes for particular terms as an initial step in (drastically) narrowing down which candidates they will consider.” 

“When I read the response, I thought, of course you are going to use technology to find the most qualified job applicants,” Crotty said, adding “why would you not use this technology?” 

Bloomberg BNA: Specifically, how would you advise the OFCCP to rewrite the FAQs on using software programs that search for particular terms in online candidates’ resumes? 

Crotty: I would eliminate that FAQ altogether. Let contractors use software that identifies those candidates who are most likely to be the most qualified for the position without fear that every person who is in the pool has just been “considered.” When the contractor then uses human intellect to review and assess those candidates selected by the program, then it is “considering” those candidates. That is how I would solve this conundrum.  

Bloomberg BNA: Contractors have been told that the Internet applicant rule is their “best friend.” Has that changed? 

Crotty: I think the rule in and of itself is a good idea because it tells contractors who has to be counted and who doesn’t. It gives them an avenue to avoid counting everybody who expresses an interest in the job. In that respect, I do think the rule is very helpful to contractors. 

My concern and what I was pointing out in my blog post was that the OFCCP’s interpretation through its FAQs expands the universe of candidates contractors have “considered.” The regulations provide that an individual is “considered” when the contractor assesses the substance of his or her qualifications. It’s the OFCCP’s interpretation of that regulatory language that is potentially causing the issue. 

Bloomberg BNA: What kind of reaction have you received from the blog post? 

Crotty: Interestingly enough, I’ve received more feedback from this blog post than others. I guess this one touched a chord with folks. I think it’s because more federal contractors are grappling with the issues raised in the blog post. That is, for example, how we can serve the best interests of the company and job applicants by finding the most qualified person while not running afoul of OFCCP’s rules. 

If we are just, batching, or reviewing applications and resumes in sets in the order that they were received, and taking the first person that meets the basic qualifications, then we may be missing that one wonderful nugget out there that also has some great preferred qualifications.  That benefits neither the company nor the individuals applying for work.

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