Federal contractors may start to hear more questions about their procedures on screening out online job seekers who didn’t meet the basic requirements for a position.
The conventional wisdom went that the Internet applicant rule implemented by the Office of Federal Contract Compliance Programs in 2006 benefited contractors because it allowed them to reduce the number of online job candidates included in applicant pool data that the agency analyzed for potential adverse impact. Big numbers are bad numbers with respect to statistical analyses for adverse impact.
10-Year Old Rule Gets New Life
The rule says an Internet applicant must meet the following conditions: 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 the basic qualifications for the position; and the individual doesn’t remove himself or herself from further consideration or otherwise indicate he or she is no longer interested in the position.
More compliance officers are starting to have a better understanding of the Internet applicant rule and are “asking some good and tough questions” about how the rule is applied, said Lynn Clements, director of regulatory affairs at the Maryland-based human resources consulting firm Berkshire Associates Inc., at the Society for Human Resource Management's Employment Law and Legislative Conference.
During the George W. Bush administration, she served as acting director and deputy director of the OFCCP's Division of Policy, Planning and Program Development. Clements conducted a presentation at the conference on federal contractor compliance and spoke with me after the March 15 session. She also responded to a follow-up e-mail regarding the interview.
Bloomberg BNA: During the session, you had mentioned that OFCCP’s compliance officers are paying more attention to contractors’ obligations under the Internet applicant rule. What are you seeing and could you talk more about this?
Clements: I think in the past the agency tended to accept that the pool of job applicants the contractor provided in an audit was consistent with the agency’s view of the Internet applicant rule. However, we have had some recent audits in which the agency has asked some thoughtful questions about how the contractor applied the Internet applicant rule.
For example, we have had compliance officers ask: “Who did you not consider as an Internet applicant and why?” In some cases, compliance officers are asking for documentation for the entire job candidate pool for some job groups or job titles and positions.
In essence, the OFCCP is coming back to the contractor and saying “we want to see for ourselves how you decided who was an Internet applicant meeting the basic qualifications.” For example, the auditor may say something like: “You said that theses 50 individuals met the Internet applicant rule, but we want to see the 150 candidates who applied for the job.”
In asking these questions, the agency is making it clear that it wants to independently evaluate how the contractor applied the Internet applicant rule. And that’s new.
Bloomberg BNA: Any insights as to the reason for the shift?
Clements: The Internet applicant rule is over a decade old, but it is complicated to understand and apply. I think it took the agency that amount of time to get its hands around the idea of what the rule is about--not in the sense of the rule’s elements, but how contractors are applying the rule.
It’s a powerful rule in that you could have 150 people applying for the position, but the contractor only submits to the agency information on 50 of those individuals because it believes that only 50 meet the definition of an Internet applicant.
As you know, the bigger the number the more potential there is for statistically adverse indicators. And so, contractors can legitimately use the rule to present a smaller pool of job applicants. I think the agency is now understanding that and wants to dig deeper by asking contractors: “How are you getting that smaller pool?”
Bloomberg BNA: What’s your sense on how or if the agency will monitor or evaluate contractors to make sure that their “basic qualifications” screen takes into consideration that someone with a disability might be able to meet the qualification standard or perform essential functions with reasonable accommodation?
Clements: The OFCCP is uniquely positioned to look at qualification standards under the [Americans with Disabilities Act] and Section 503 [of the Rehabilitation Act] because its reviews are not complaint-based. Over time, as the agency becomes familiar with the revised Section 503 regulations, I think you will see this become a very active area of focus for the agency.
The OFCCP already checks to make sure that online application systems have clear language indicating how reasonable accommodation may be requested if a candidate is unable to use the online system due to disability.
The agency easily can take a similar approach to evaluating how contractors pre-screen for basic qualifications using online application systems by asking to review all screening questions. For this reason, contractors want to evaluate whether qualifications are job-related and consistent with business necessity. Contractors also want to be sure that questions focus on a candidate’s willingness, rather than ability, to perform certain work, such as overtime.
Contractors also might consider adding language to their online systems indicating that candidates may answer screening questions affirmatively if they can meet the requirement with or without reasonable accommodation.
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