Days to comment on EEOC’s proposed regulations

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Employers have only days to comment on the proposed regulations governing the definition of an online job applicant. Keeping your head under the sand and allowing the two different proposed regulations to pass could result in your having to report different sets of numbers to two different government entities.

For Immediate Release

Days to comment on EEOC’s proposed regulations

Marysville, WA After four years of deliberation, the Equal Employment Opportunity Commission (EEOC) published on March 4, 2004 its proposed new regulations for the definition of an online job applicant. The Office of Federal Contract Compliance Programs (OFCCP) published its definition later that month on the 28th. Employers have until May 3, 2004 to comment on the EEOC’s version and until May 28, 2004 to respond to the OFCCP.

“You will be affected if you use the internet for recruiting,” says Frank Heasley, PhD, president and CEO of MedZilla.com, a leading Internet recruitment and professional community that serves biotechnology, pharmaceuticals, healthcare and science. “We encourage you and your fellow employees, regardless of the size of your company, to study how the proposed guidelines will affect you when they are accepted into law. It’s plausible, that employers will have to comply with two different guidelines unless you and others get on the bandwagon and comment.”

Gerry Crispin, coauthor of the CareerXRoads reference guide for job and resume sites and partner in an international consulting practice on staffing strategy, says that since 1978, when the uniform guidelines were published, employers have had to identify (when possible) the gender, race and ethnicity of applicants for employment. The advent of the internet in the 1990s muddied the waters. Whereas employers used to collect the data when people came in, physically, and filled out applications, some employers were now gathering the data online. The problem: There has been no consistency on when and how the data is collected, how much, if any is collected, and how the data is used, according to Crispin.

The government directed the EEOC and its sister organizations to look at this issue in 2000, and four years later, the Federal register of the US government published the proposed new regulations for the definition of an applicant at http://www.regulations.gov/fredpdfs/04-04090.pdf. Other government organizations associated with the Uniform Guidelines on Employee Selection Program (UGESP) were invited to issue their versions of the guidelines and one did: the Office of Federal Contract Compliance, at http://www.dol.gov/esa/regs/fedreg/proposed/2004006972.htm.

The two are different. In EEOC’s guidelines, three conditions must be met for a person to be considered an applicant when using the internet or other electronic means to express interest in employment, according to Crispin. The employer must have taken steps to fill a particular job; the individual must have followed the employer’s standard application procedure; and the individual must have expressed interest in the particular position.

That is pretty much, where the EEOC ends its description of a candidate, Crispin says. The OFCCP adds what Crispin says is a crucial qualifier: “advertised, basic qualifications,” meaning that in the advertised position are qualifications that the individual demonstrates that he or she in fact meets. This, he says, will better qualify who should be considered an applicant—otherwise, almost everyone who wonders onto a corporate Web site and fills out an application for a specific position (even if that person doesn’t meet basic qualifications) would be considered an applicant and employers would have to collect data on the person and report that data.

OFCCP says the qualifications in the advertisement must be measurable. “Must be friendly” is not measurable. “Must be able to work in the U.S.” and “Must have a valid driver’s license with fewer than three points” are examples of measurable qualifications. It must also be non-comparable. You cannot say, “Must be the best candidate in terms of listening ability.” In addition, the qualifications must be bona fide requirements of the job.

Unless employers comment before the deadline, asking that EEOC adopt OFCCP’s recommendation, it is possible that employers would have to report to two different entities, using two different sets of numbers, according to Crispin. “The solution is you, individually, or the people in the company must take a look at this and comment before the dates.”

The final guidelines would impact how employers report information about diversity to the government. If yours is a large employer, which has a sophisticated, expensive applicant tracking system in place and is already collecting the data on the front end, you might only have to tweak the system to meet the government’s reporting requirements. It’s the companies of all sizes that do not have the sophisticated data collection systems, or the person-power to collect and report it that will suffer the most, according to Dr. Heasley.

After studying the proposed regulations, you should ask yourself whether they add clarity to the discussion about the definition of an applicant. You should ponder whether the proposed regulations would add to the company’s ability to analyze its practices and head off potentially discriminating practices or demonstrate to the government that your employment strategies successfully attract a diverse applicant population. You should anticipate any added burden (i.e. cost or added paperwork) from the regulations and, then, decide whether to comment, according to Crispin.

Send your comments by May 3 to the EEOC, Frances M. Hart, Executive Office, Executive Secretariat, EEOC 10th Floor, 1801 L Street, NW, Washington, DC, 20507. Fax: 202-663-4114. OFCCP comments, due May 28, should go to Mr. Joseph Dubray, Jr., Director, Division of Policy, Planning and Program Development, OFCCP, ofccp-pulic@dol.gov, fax: 202-693-1304. (OFCCP comments must indicate that they are in response to 41 CFR Part 60-1.)

About MedZilla.com

Established in mid 1994, MedZilla is the original web site to serve career and hiring needs for professionals and employers in biotechnology, pharmaceuticals, medicine, science and healthcare. MedZilla databases contain about 10,000 open positions, 13,000 resumes from candidates actively seeking new positions and 71,000 archived resumes.

Medzilla® is a Registered Trademark owned by Medzilla Inc. Copyright ©2004, MedZilla, Inc. Permission is granted to reproduce and distribute this text in its entirety, and if electronically, with a link to the URL http://www.medzilla.com. For permission to quote from or reproduce any portion of this message, please contact Michele Groutage, Director of Marketing and Development, MedZilla, Inc. Email: mgroutage@medzilla.com.

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Michele Groutage