What is an Applicant?

Definition of Applicant

The OFCCP would like to broadly define an "applicant" as anyone who expresses interest in a position (including the resumes that come into your website) - despite qualifications, i.e., a person with a Laborer background who applies for an Engineer position, would have to be maintained as a valid applicant for the Engineering position. HR professionals have typically maintained that an "applicant" is someone who meets all job qualifications and possibly only those interviewed for a position. Hence, much of the conflict.

The definition of an applicant is important with regard to two employment law issues: (1) only "applicants" may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes; and (2) employers must determine who qualifies as an "applicant" in order to ascertain whether hiring practices, policies or procedures have an "adverse impact" on minorities and/or women.

Record Creation and Retention Requirements Under the Regulations (§ 60-1.12) ~ General Rule is 2 years

Under OFCCP Regulations issued in August of 1997, Contractors are required to retain any personnel or employment record made or kept for a period of not less than 2 years from the date of the making of the record or the personnel action involved, whichever occurs later.

Such personnel records include, but are not limited to, records pertaining to:

Hiring
Assignment
Promotion
Demotion
Transfer
Lay off or termination
Rates of pay or other terms of compensation
Selection for training or apprenticeship
Records having to do with reasonable accommodation
Results of any physical examination
Job advertisements and postings
Applications and resumes
Tests and test results
Interview notes

NOTE: Upon receiving notice that a discrimination complaint has been filed, a compliance evaluation has been initiated, or an enforcement proceeding has been commenced a contractor must preserve all records relevant to such action until final disposition.

Failure to preserve records constitutes noncompliance and the OFCCP may draw the inference that the records destroyed or not preserved would have been unfavorable to the contractor.

New Paragraph 60-1.12(c): Changes Affecting Applicant Tracking

This section requires that all records maintained by the contractor must be identifiable by:

the gender, race and ethnicity of each employee; and
where possible, the gender, race and ethnicity of each applicant (Note: the contractor should make every good faith or reasonable effort to obtain this data).

Further Applicant Definition:

In its section-by-section analysis the OFCCP emphasized that it continues to adhere to the "definition" contained in Question and Answer 15 published in the Federal Register in 1979 (see "Adoption of Questions and Answers to Clarify and Provide common Interpretation of the Uniform Guidelines on Employee Selection Procedures," 44 F.R. 11996, 11998 (March 2, 1979)).

OFCCP makes it clear that the "where possible" language of this paragraph refers to situations in which the applicant refuses to provide the information. In fact, OFCCP places the burden on contractors "to demonstrate that every reasonable effort has been made to identify the gender, race, and ethnicity" of all applicants.

Acceptable Methods of Obtaining Applicant Flow Data:

In OFCCP's analysis of the new regulations, they suggest, "while self-identification is the most reliable and preferred method" for compiling the information, such as use of a tear-off sheet, there are other alternatives are acceptable:

Sending a short notice/form or postcard to newspaper ad respondents
Electronic "tear-off sheet" for applications/resumes submitted electronically
Visual observation, "though it may not be reliable in every instance"

Advice: Maintain good applicant flow data. If audited, monitor the flow of information given to the OFCCP compliance officer about your applicants. Inform OFCCP of your company policy/procedure regarding maintaining applicant flow data. If you are selected for audit and the OFCCP asks you to change your definition, deal with it at that time. As of April 2003, OFCCP announced they would need several additional months to form a revised definition as it relates to internet applicants.