HR Management & Compliance

Hiring Employees: EEOC Proposes Definition of Applicant for E-Cruiting Purposes; Part 2: How to Standardize Your Application Procedures and Retain the Right Records

As we reported last month, the Equal Employment Opportunity Commission (EEOC) is tackling a vexing problem that’s a sign of the times—defining who, among all those who contact you over the Internet or via other electronic technology about work, is a true job applicant for purposes of complying with your federal recordkeeping requirements. The EEOC, together with several other federal agencies, has proposed guidelines that will 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: 1) the employer has acted to fill a particular position, 2) the individual has followed the employer’s standard procedures for submitting an application for the position, and 3) the individual has indicated an interest in the particular position. In this second installment of our two-part series on the proposed guidelines, we outline some practices you can implement to ensure compliance with, and take advantage of, the new definition.

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Recommended Practices

To narrow the number of electronic contacts that are considered applications and ensure you’re in compliance when the rules are finalized, it’s important to standardize your application procedures. Here are some suggestions:

  1. Establish an application policy. Draft a statement spelling out when your organization will accept applications and when someone who uses electronic communication to express interest in employment is considered an applicant. Make sure your policy’s wording is consistent with the proposed rule.


  2. Prominently publish your policy. Your application procedures should be accessible to those who may seek a job with your company. By linking the policy to your Intranet and the public pages of your website, as well as by ensuring that third-party job boards and online recruiters publish the information, you are likely to make external candidates aware of your procedures.


  3. Set dates for job postings. Specify on all job postings the dates when recruiting for the position begins and closes. Be sure to remove postings when they expire.


  4. Advise individuals of status. Develop a system to notify individuals about their application’s status. For resumes submitted according to your application procedures, annotate the submission as such and consider generating an automatic or personally drafted response that the application will be considered for the particular position. For unsolicited electronic resumes, inform individuals they must resubmit their resume for a specific job opening. If you retain inquiries for a period of time to see whether they match a position, be sure to include that information in your response. Keep a record of the original submission and your response.


  5. Solicit race, gender, and ethnicity information. For submissions that meet the definition of an application, send the individual a self-identification form so you can collect required data on race, gender, and ethnicity for your records (see below). Be sure to have procedures in place to ensure this information is used only for permitted purposes.

Recordkeeping Requirements

The new Internet applicant definition is designed to help curb your federal recordkeeping responsibilities for electronic resumes. Here’s a rundown on the records you must keep for a submission that meets the definition of an applicant:

  1. Race, gender, and national origin data. Employers must maintain information on the number of applicants by sex, race, and national origin.


  2. Application materials. Maintain all application and resume materials for Internet applicants, even if the person wasn’t actively considered for the open position because they didn’t meet the minimal qualifications. California employers must keep these records for two years.


  3. Tests and results. You must maintain copies of any tests and test results used to evaluate applicants. This is true for online and traditional paper tests.

Special Rules for Federal Contractors

The Office of Federal Contract Compliance Programs (OFCCP), which uses the EEOC’s applicant criteria, has proposed adding a requirement for federal contractors that the individual must meet the advertised, basic qualifications for the position. Federal contractors must still retain applications and resumes for all job seekers, even if the individual wasn’t minimally qualified or didn’t follow all of the proper application procedures.