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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: March 29, 2004

SUBJECT: Office of Federal Contract Compliance Programs (OFCCP); Obligation To Solicit Race and Gender Data for Agency Enforcement Purposes

SOURCE: Federal Register, March 29, 2004, Vol. 69, No. 60, page 16445

AGENCIES: Department of Labor (DOL), OFCCP

ACTION: Notice of Proposed Rulemaking (NPRM)

SYNOPSIS: The OFCCP requires covered federal contractors to maintain certain employment records for OFCCP compliance monitoring and other enforcement purposes. The OFCCP is proposing to amend its recordkeeping requirements to address the increasing use of the Internet as a job search mechanism.

EDITOR'S NOTE: OFCCP's regulations are in Title 41 of the Code of Federal Regulations, Public Contracts and Property Administration; Chapter 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. The proposed changes would be made to 41 CFR Part 60-1, Obligations of Contractors and Subcontractors.

DATES: Comments must be submitted on or before May 28, 2004.

ADDRESSES: Submit comments to Joseph DuBray, Jr., Director, Division of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW, Washington, DC 20210; by e-mail to ofccp-public@dol.gov; or by fax to 202-693-1304 (fax transmissions must be six or fewer pages).

FOR FURTHER INFORMATION CONTACT: Joseph DuBray, Jr., 202-693-0102 (voice), or 202-693-1308 (TTY).

SUPPLEMENTAL INFORMATION: OFCCP requires covered federal contractors to obtain, where possible, gender, race and ethnicity data on applicants and employees. OFCCP requires this data collection activity for several purposes relating to contractors' administration of required affirmative action plans and OFCCP's role in monitoring compliance with OFCCP requirements. Contractors must supply this information to OFCCP upon request. (EDITOR'S NOTE: For more on this data collection, see the November 13, 2000, FEDERAL CONTRACTS DISPATCH "Office of Federal Contract Compliance Programs; Government Contractor Affirmative Action Requirements.")

The proposed rule would make the following changes to the OFCCP regulations:

• Section 60-1.3, Definitions, would be amended to add the following definition for "Internet Applicant":

        "(1) Internet applicant means any individual who:
  

        "(i) Submits an expression of interest in employment through the Internet or related electronic data technologies;

        "(ii) The employer considers the individual for employment in a particular open position;

        "(iii) The individual's expression of interest indicates the individual possesses the advertised, basic qualifications for the position; and,

        "(iv) The individual does not indicate that he or she is no longer interested in employment in the position for which the employer has considered the individual.

        "(2) For purposes of this definition, 'advertised, basic qualifications' means qualifications that the employer advertises (e.g., posts a description of the job and necessary qualifications on its Web site) to potential applicants that they must possess in order to be considered for the position and that meet all of the following three conditions:
  

        "(i) The qualifications must be noncomparative features of a job seeker. For example, a qualification of three years' experience in a particular position is a noncomparative qualification; a qualification that an individual have one of the top five number of years' experience among a pool of job seekers is a comparative qualification.

        "(ii) The qualifications must be objective; they do not depend on the employer's subjective judgment. For example, 'a Bachelor's degree in Accounting' is objective, while 'a technical degree from a good school' is not. One way to tell an advertised, basic qualification is objective is that a third-party, unfamiliar with the employer's operation, would be able to evaluate whether the job seeker possesses the qualification without more information about the employer's judgment.

        "(iii) The qualifications must be job-related; in other words, they are relevant to performance of the job at hand and enable the employer to accomplish business-related goals."

• Section 60-1.12, Record Retention, would be amended to :
  
  
  • To the third sentence of paragraph (a), General Requirements, would be added the italicized language: "Such records include, but are not necessarily limited to, records pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, and other records having to do with requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications, resumes, and any and all employment submissions through the Internet or related electronic technologies, such as on-line resumes or resume databases (regardless of whether an individual qualifies as an Internet Applicant under 41 CFR 60-1.3), tests and test results, and interview notes."
    
    
  • To paragraph (c)(1)(ii), which addresses the characteristics the employer must obtain about its applicants, would be added the italicized language: "Where possible, the gender, race, and ethnicity of each applicant (i.e., submissions that are not through the Internet and related electronic technologies) and Internet Applicant as defined in 41 CFR 60-1.3."
    
    
  • Paragraph (e) which states that the requirements of Section 60-1.12 "apply only to records made or kept on or after December 22, 1997," would be deleted.

  FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

  Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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