Definition of applicants is clarified for employers

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What to do with all those online resumes? The Internet may have simplified the job application process, but from a legal viewpoint, it has complicated an employer’s recruitment and selection of potential new hires. Employers are asking what the legal definition of a job applicant is in the Internet world. A clear definition helps employers avoid potential liability.
In March, several federal agencies jointly issued long-awaited guidance on how the Uniform Guidelines on Employee Selection Procedures will apply to Internet applicants. For perspective, the original UGESP were issued in 1978 to identify the information employers are required to keep to demonstrate that their employment selection procedures do not have a disparate impact on protected groups and to establish methods employers may use to validate test and selection procedures. These procedures apply to all employers subject to Title VII of the Civil Rights Act of 1964 (15 or more employees) or government contractors and subcontractors with contracts in excess of $10,000.
Employers are required to track race, ethnicity and gender data on their job applicants. The only UGESP guidance to help employers define a job applicant was provided in 1979, and employers have been following it ever since.
That definition was stated in general terms: “The precise definition depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion or other employment opportunities.”
Employers that now do their recruiting online or that receive their resumes online have had problems determining which of the many individuals submitting information electronically become “applicants” who then had to be tracked.
Several obvious questions are posed. If an employer receives 500 unsolicited resumes per day via the Internet, must the employer track the applicant data for all 500 individuals because they have “indicated an interest” in working for the company? If an employer searches a job database for purposes of filling a certain position, are all of the resumes contained on the database “applicants” because they have indicated an interest in being employed by companies that have access to the database?
If an employer receives 1,000 electronic applications in response to one job posting, are all of these individuals “applicants,” even if the majority of them do not have the necessary educational background for the position?
The new guidelines provide some answers to those questions. For example, according to the guidelines, for recordkeeping purposes, in the context of the Internet and related electronic technologies, an individual becomes an “applicant” when three things happen: The employer acts to fill a particular position; the individual follows the employer’s standard procedures for submitting applications; and the individual indicates an interest in the particular position.
The new guidance provides real-world scenarios that employers can follow. In one scenario, an employer has individuals interested in a particular position fill out personal data forms, which include information on where geographically a person is willing to work. The employer seeks to fill two positions in New York and does a search of the personal data forms that have been completed. The employer has 200 hits. Out of those, 100 respond to the employer’s inquiry regarding the positions.
All 100 individuals who responded would be considered applicants, even if the employer chooses to interview only 25 people. Not every person who fills out the personal data form would be an applicant because many indicated they were not available to work in New York.
In another scenario, an employer requires everyone who applies online for a certain position to fill out a data form. Only employees who complete this step should be considered applicants.
A third scenario is presented this way: An individual sends a resume through the Internet expressing interest in a category of positions at the company or just general interest in working at the company. That individual would not be considered an applicant. However, if that individual completes an application form online for a particular position, he or she becomes an applicant.
The new guidelines do not apply to recruitment activities. That’s because recruiters who search personal Web sites and resume databases are not required to comply with the recordkeeping requirements of the UGESP for recruitment activities. However, the search criteria used by employers to narrow applications are subject to disparate impact analysis.
In other words, if an employer screens applicants by a specific characteristic, such as level of education, the use of this criterion can be evaluated to determine if it has the effect of disproportionately screening out certain protected classes. If a disparate impact is found, then the employer must be able to justify use of the criteria by demonstrating business necessity.
Employment tests administered online are subject to UGESP, even if they are used by recruiters, because they are considered a “selective device.” Federal non-discrimination laws apply to the use of the Internet and related technologies for recruitment and selection.
To comply with these new guidelines, employers that use the Internet for recruitment should, at a minimum: develop rules as to when inquiries about race, ethnicity and gender must be made of potential applicants; require all applicants for positions to fill out a personal data form or application; review all search terms used to select resumes to ensure that the criteria used can be tied to the job at issue; inform all individuals who submit unsolicited electronic resumes or applications that they must resubmit their information in response to a specific job posting; and have closing dates on all job postings and remove them from the company’s Web site as soon as they are closed.
Employers should be able to take advantage of technology for recruiting and hiring while still adhering to UGESP requirements if they adopt a few relatively simple procedures and providing training to their employees who recruit and select job applicants.
(Justin P. Doyle is a partner with Nixon Peabody LLP. His partner, Leslie P. Arrington assisted with this article.)

04/16/04 (C) Rochester Business Journal