Employers with federal contracts must comply with federal equal employment opportunity and affirmative action program rules published by the federal Office of Contract Compliance Programs (OFCCP). These rules include data collection and retention requirements. In an audit of a federal contractor OFCCP will look at the contractor's applicant records and record-keeping concerning race, ethnicity and sex of applicants. To this end OFCCP requires contractors to solicit voluntary self-reporting by the applicant of "demographic information" such as data on race, ethnicity and gender. Demographic information on traditional applicants may also be collected by observation, in situations where self-reporting is not practical or feasible. "Where possible," contractors are required to identify the gender, race and ethnicity of each applicant. Applicant information is required to be retained for review by OFCCP in an audit.

But how do these rules apply to inquiries or applicants presented over the internet? In October, 2005, OFCCP published final amendments to its rules to cover this subject, which became effective in February, 2006.

To be considered an "Internet Applicant" an individual must meet a four part test:

1. He or she submits an expression of interest in employment;
2. The contractor considers the individual for employment in a particular position;
3. The expression of interest indicates that the individual possesses the basic qualifications of the position; and
4. At no point in the selection process has the individual removed himself or herself from consideration or otherwise indicated he or she is no longer interested in the position. Regulations spell out the meanings of these phrases in detail. If the threshold is passed to be an Internet Applicant, records on the applicant must be kept, and demographic information must be solicited at some point in the application process.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.