Paying attention to the OFCCP Frequently Asked Questions re: Applicants

As the OFCCP continues to delve deeper into the details associated with Federal Contractors' hiring process, it is crucial to pay close attention to all of the recordkeeping requirements and expectations, especially during an audit. Sometimes, if not often, it can be very difficult to make sure that applicant logs contain all of the right data, especially when the definition of an applicant continues to be under the microscope. BCG has found the Frequently Asked Questions on the OFCCP website to be very helpful. However, there are times when a contractor needs to pay close attention to the details because the responses can be confusing and easily misinterpreted.

See two of the responses below from OFCCP about withdrawal from consideration. The real question is, "at what point can you take someone out of the applicant pool if they appear to have withdrawn from the process?" In the original definition immediately below, it would seem clear that once an offer is made, that person is an applicant. While that definition may seem simple (even logical), if a reader looks further down the list of questions they will see that there is a question about rules for considering a candidate to be withdrawn and it appears to say that a rejected offer is a form of withdrawal. Is this a contradiction?

So, to the contractor we suggest caution. BCG would not remove a candidate that received an offer from the overall analyses. Although if dispositioned correctly, the contractor can conduct analyses of applicants to hires as well as applicants to offers and see how they differ. Removing a candidate to whom a contractor made an offer sounds awfully risky to us. Remember, detailed disposition coding is the key to good data and accurate analyses.

Original definition from OFCCP website listed here:
http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm

What is the definition of an "Internet Applicant" in the final rule?

An Internet Applicant is defined as an individual who satisfies the following four criteria:

• The individual submits an expression of interest in employment through the Internet or related electronic data technologies;


• The contractor considers the individual for employment in a particular position;


• The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,


• The individual at no point in the contractor's selection process PRIOR TO RECEIVING AN OFFER of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

WITHDRAWAL FROM CONSIDERATION:

How can a contractor determine that an individual has indicated that he or she is no longer interested in the position?

The Internet Applicant rule explains that a contractor may conclude that an individual has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual's express statement or on the individual's passive demonstration of disinterest. For example, passive disinterest may be shown by:

• Declining a contractor's invitation for a job interview;


• DECLINING A JOB OFFER; or


• Repeatedly failing to respond to a contractor's telephone inquiries or emails asking about his or her interest in a job.

A contractor may also presume a lack of continuing interest based on a review of the job seeker's expression of interest. For example, statements pertaining to (1) the individual's interest in the specific position or type of position at issue, (2) the location of work, or (3) his or her salary requirements, may provide the basis for determining the individual is no longer interested in the position, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.