In response to the meteoric rise of Internet-related high-tech recruiting, the U.S. Equal Employment Opportunity Commission (EEOC), working with several other federal agencies, has released long-awaited proposed guidelines defining who employers must count as an applicant to comply with federal recordkeeping and affirmative action rules. In this first installment of our two-part series on the new guidelines, we walk you through the new rules step by step. Next month, we’ll give you practical tips for complying with the rules, and we’ll explain your recordkeeping obligations for applicants.
Why You Need to Know Who’s an Applicant
Understanding who is an applicant is important for a number of reasons. First, if a hiring decision is challenged in court as discriminatory, the jury may look at the composition of the applicant pool. It’s generally to an employer’s advantage if you can show that you selected from a small group of applicants. This makes it harder for a candidate to use statistics to prove that you favored one group of applicants (i.e., whites or men) over another (i.e., minorities or women).
Second, if you’re a federal contractor with at least 50 employees and a federal contract worth $10,000 or more, your affirmative action obligations may require you to track applicant flow and equal employment opportunity data. Third, federal and state law require most employers to maintain certain applicant records for a period of time.
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Too Many Electronic Resumes
Applicant Defined
Now the EEOC (in conjunction with the Office of Federal Contract Compliance Programs, the Department of Justice, and the Office of Personnel Management) has defined who an applicant is in the context of the Internet and related electronic technologies such as e-mail, resume databases, job banks, and electronic resume scanning technology. These proposed guidelines apply if you have 15 or more employees or if you’re a federal contractor with at least 50 employees and a federal contract worth $10,000 or more.
Under the proposed rules, an individual becomes an applicant when all three of these criteria are met:
- The employer has acted to fill a particular position, which means the employer is seeking applicants for a specific opening; and
- The individual has followed the employer’s standard procedures for submitting an application for the position; and
- The individual has indicated an interest in the particular position.
Useful Examples
The EEOC provides these examples of how the definition would be applied:
- Individuals who register online for customer service jobs with an employer are asked to complete online personal profiles for the employer’s resume database. The employer then acts to fill two vacancies at its New York office and identifies 200 recruits from the resume database who have indicated they’re available to work in New York. When the employer inquires, 100 of these people say in a timely way that they are currently interested in the vacancies. Even if the employer interviews only 25, all 100 are considered applicants because the employer acted to fill specific positions and the 100 individuals followed the employer’s application procedures and indicated an interest in these positions.
- An employer requires online job seekers for a particular position to complete a personal data form. Only individuals who complete this step qualify as applicants. Similarly, if job seekers must use an electronic kiosk to apply for a position, only those who do so are applicants. And if an employer e-mails online job seekers to ask if they’re currently interested in a specific vacancy, only those who respond by the employer’s deadline are applicants.
- Someone who posts their resume on a third-party resume bank or on a personal website is not an applicant for all employers who search those sites. But if an employer contacts this person about a specific job after finding the resume online, and the individual indicates an interest in that position, the individual becomes an applicant (provided they also follow the employer’s standard application procedures).
- An individual e-mails a resume expressing interest in a category of positions at the company, such as marketing opportunities, when no openings are posted. That person is not an applicant. But someone who completes an application form for a particular position online is an applicant.
More to Come
Next month, we’ll give you practical tips on how you can protect yourself under these new rules, such as by implementing clear, standardized application procedures. We’ll also explain your recordkeeping obligations with respect to applicants.