WHO IS A JOB APPLICANT?

March 15, 2004

By Jeffrey A. Schwartz

On March 4, 2004, the Equal Employment Opportunity Commission ("EEOC"), the Office of Federal Contract Compliance Programs, the Department of Labor, the Department of Justice, and the Office of Personnel Management jointly issued guidance on how the Uniform Guidelines on Employee Selection Procedures ("UGESP) will apply to applicants for hire who submit an application via the Internet.

The original UGESP were issued in 1978 to identify the information employers were required to maintain to show non-discriminatory hiring practices and to state the method employers might use for test and selection validation procedures. The UGESP apply to all employers subject to Title VII (fifteen or more employees) and/or Executive Order 11246 (government contractors or "subcontractors" with executive agency government contracts in excess of $10,000).

The UGESP record keeping procedures require employers to track race, ethnicity, and gender data on an "applicant." There was not and has not ever been a clear definition of the term "applicant." Clearly, back in 1978, nobody contemplated the ramifications of applications/resumes that would be submitted electronically via the Internet.

Recognizing this seismic change in the way in which resumes and applications are now received by employers the above listed agencies were charged with the responsibility of updating the UGESP to conform with modern day realities. The March 4th publication was an effort to do just that.

In the March 4th update, the agencies published the "Adoption of Additional Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines of Employee Selection Procedures as They Relate to the Internet and Related Technologies." These proposed new Q & A's (numbers 94, 95, 96, 97 & 98) follow the existing 93 questions and answers that have been in place since 1980. The new questions and answers establish the following:

For record keeping purposes, in the context of the Internet and related electronic technologies, an individual becomes an "applicant" when:

  1. The employer has acted to fill a particular position;

  2. The individual has followed the employer's standard procedures for submitting applications; and

  3. The individual has indicated an interest in the particular position.

The guidance tries to clarify these definitions and to formalize what we have basically known and that is that if an applicant complies with an employer's rules regarding the application for a specific position, he or she is an applicant regardless of how the application was delivered. There remain unanswered questions that will hopefully be clarified by the agencies or, if necessary, the courts. In the meantime, the Watkins Ludlam Labor and Employment Practice Group is available to assist you with any questions about the proposed Guidance and its impact on your applicant flow tracking procedures. You can contact the author, Jeffrey A. Schwartz, (504) 522-8788 or any of the Labor and Employment attorneys with whom you are familiar.

Jeffrey A. Schwartz is a shareholder in the Firm's Labor and Employment Practice Group and resides in the Firm's New Orleans office. He may be contacted at (504) 522-8788 or you may e-mail him at jschwartz@watkinsludlam.com.