Labor issues rule affecting contractors’ hiring processes

Rule designed to prevent discrimination and to help companies follow affirmative action requirements.

The Labor Department has issued a new rule to clarify what it means to be considered an applicant for a job with a federal contractor in the era of the Internet. The rule, which is set to take effect Feb. 6, 2006, will have a significant impact on both federal contractors and online job sites.

"Well-counseled contractors are going to be looking through online job boards and asking whether" they can use the site while fulfilling the obligations of the contractor to meet the new standards, said David Fortney, a co-founding partner and shareholder of the law firm Fortney & Scott.

The rule, issued by Labor's Office of Federal Contract Compliance Programs, will require federal contractors to tailor their hiring processes according to a new definition of job applicant. This is the first time the definition has been updated since 1978, when the uniform guidelines for contractors were first released.

The new regulations simplify what data federal contractors must record or include in their analysis. According to the final rule, contractors must retain records of all Internet-based "expressions of interest" by individuals in which the contractor "considered the individual" for a "particular open position."

Fortney called the new role "a benefit" because it enables contractors to know who should be considered applicants and "adds certainty."

The rule is designed to prevent discrimination and to help contractors abide by affirmative action requirements.

In 1979, a question-and-answer document from the Uniform Guidelines in Employee Selection defined an applicant as a person who indicated an interest in being considered for hiring, promotion, or other employment opportunities.

With the onslaught of the Internet and the many ways both employers and employees use technologies to seek out each other, confusion over the definition emerged. For example, Internet-related technologies used for employment-related purposes now include e-mail, resume databases, job banks, electronic scanning technologies, Web crawlers, applicant tracking systems, applicant service providers and applicant screeners.

In 2000 the agencies started considering how to approach the problem, said Fortney.

On March 4, 2004, four government agencies proposed a new definition for comment on the application, but the agencies failed to reach a consensus. Meanwhile, the Office of Federal Contract Compliance Programs went ahead and proposed and finalized its own requirement.

Under the new definition, an Internet applicant must express an interest in employment through the Internet or related electronic data technologies, and the contractor must consider the individual for employment in a particular position.

Further, the individual's expression of interest must indicate that the individual meets the basic qualifications for the position, and the person is considered an applicant as along as he or she does not ask to be removed from consideration during the selection process.

"We are glad that they have worked this through the regulatory process in this ever-changing Internet world of job seeking," said a spokesman from the National Association of Manufacturers. "This issue needed to be dealt with now."

The online career company announced this month that it is prepared to help contractors meet the new requirements.