Moving to catch up with the increased reliance on the Internet for job searches, federal regulatory agencies are proposing a new set of regulations that redefine the term "job applicant" in language that makes it clear that simply sending out a résumé doesn’t make someone an applicant.
Under the old rules, employers were required to maintain records for job applicants on the basis of race, sex or ethnicity as a deterrent to job discrimination. But the definition of a job applicant was so general that anyone with an interest in being considered for hiring, promotion or other employment opportunities could qualify, thus triggering expensive and time-consuming record-keeping by employers. Defining what an interest is can be difficult. Filling out a paper application for a specific job is an obvious interest. But what about someone who sends out dozens of electronic résumés without particular jobs in mind?
The new proposal--fashioned by four federal agencies after three years of negotiation--will allow employers to work under a much more limited definition of who a job applicant is. Should the proposal survive a 60-day public-review period, as is expected, individuals will not be considered formal applicants unless they apply for a specific job and follow the employer’s standard application procedures. "The core of being an ‘applicant’ is asking to be hired to do a particular job for a specific employer," the proposed regulations say.
In announcing the proposal, EEOC Chair Cari Dominguez said, "With the daily online transmission of hundreds of thousands of résumés, there is a critical need to provide supplemental guidance that is aimed at protecting the rights of applicants while relieving employers of onerous record-keeping requirements." Attorney Larry Lorber, who was a U.S. deputy assistant secretary of labor and director of the Office of Federal Contract Compliance Programs during the Ford administration, applauds the action. "Government regulations that require employers to record who the applicants are and break it out by race, gender, ethnic background and other criteria were promulgated in the 1970s," Lorber says. "Then you knew who the candidates were. People walked into personnel offices or responded to ads and filled out applications." With mass spamming, Lorber says, the task of complying with the law became unmanageable. Unsolicited résumés landing at employers’ Web sites are part of a much bigger electronic spam problem, although not nearly as significant as the ads for adult businesses or get-rich-quick schemes that are bombarding e-mail addresses.
Ferris Research estimates that sorting, reading, blocking and otherwise dealing with all kinds of spam cost American corporations more than $10 billion last year. Some estimates say résumé spam accounts for as little as 2 percent of the total. But for large employers, particularly federal contractors, dealing with thousands and maybe tens of thousands of résumés a month, the flood of spam is a significant cost, to say nothing of being a potential legal nightmare. "Noncompliance with these standards and laws could subject an employer to a class-action lawsuit that could potentially include all individuals who sent them an application or spammed them with a résumé," says Lorber, a partner with the law firm Proskauer Rose. He notes that one of his clients received 115,000 résumés between September and December last year, and another is maintaining a database where about 60,000 résumés accumulate annually, whether or not the company is hiring.
In the old days, when job applicants pounded the pavement and personally filled out applications and mailed them in, the standard was easy. "An individual became an applicant as soon as he or she submitted an application and the employer opened it up," says Carol Miaskoff, an attorney for the EEOC who helped draft the new regulations. But does opening an e-mail have the same import? In some cases, with Web recruiters mass-mailing résumés, a person may not even know he is applying for a job with a given company.
Despite the change in the law, the problem of résumé spam could get worse before it gets better, says John Sullivan, a professor of management at San Francisco State University. He notes that companies are making it easier and easier to apply for positions through online job boards, which can make it tempting to apply to as many firms for as many jobs as possible. The problem has been relatively manageable in the tough job market and economic conditions of recent years. But when the turnaround happens, which he fully expects, hiring is "going to explode," and when it does, so will spamming. "It could double the quantity of résumés overnight," he says.
There is broad agreement that a good staffing-management system must provide a consistent way to deal with EEOC issues. It’s serious business for most large employers. Federal regulators are looking for record-keeping that shows a consistent and equitable approach to hiring, says Alice Snell, a vice president at iLogos Research. "Large employers must protect their brand, and to do that they must have equitable hiring practices," she says. "Issues like EEOC noncompliance can be very damaging." Not only is the problem very expensive to deal with, taking up large amounts of time answering questions and going through company records, but it also may result in reams of bad publicity.
The new regulations should help clarify things. The existing guidelines, including penalties for discriminatory practices and record-keeping requirements, remain the same. And the new guidelines apply only to the Internet and related technologies, including résumé banks and job boards, employers’ Web sites, résumé databases and online job listings. For those submitting hard-copy résumés to employers, the old rules will continue to apply. Record-keeping requirements for those deemed legitimate applicants remain.
"The guidelines don’t change the law or the obligations," Lorber says, but they do take care of the major issues facing employers. "It’s going to go a long way toward solving the problem. What this does is recognize the world as it exists today."
The new guidelines may ease employer stress, but most believe that résumés will continue to flood the Internet. As a result, employers will likely continue to try to contain the problem with technology. The premise is that if technology created the problem, technology can solve it, although people familiar with the Web say that as soon as a screener is developed to filter out unwanted spam, someone else will develop a way to defeat it. One proposed solution to mass spamming is for employers to impose a charge for processing each application with the hope that candidates will be more selective. Microsoft and others are developing software that would allow the levying of such a charge.
Commercial spammers often use fictitious names to feel out an employer’s job board for open positions, then flood the Web site with job candidates they represent. To deal with that problem, companies are countering with such things as real-time validation of applicants, says Jason Averbook, director of global human capital management marketing for PeopleSoft. The moment a person applies for a job, the technology automatically fires back an e-mail to verify whether the person is legitimate; then it might assign a password or give other instructions. The password must be used to log back into the system. At this point, the employer knows there is a real person behind the résumé, which these days cannot be taken for granted.
Whatever they do, companies putting in spam controls that toss out résumés must be careful not to miss out on good applicants, Averbook says. Much of the preliminary screening is done on the basis of keywords matching job descriptions. Just as smart spammers have learned to encode their résumés with virtually every word in a job description, vaulting them onto the short list of candidates, employers are set up to identify certain words and then delete the résumés. "A lot of applicants will put a word in their résumé that happens to get picked up by the spam engine, and then the résumé gets kicked out. An employer could be missing out on a good candidate," Averbook says.
One major unanswered question is when the new regulations will take effect and whether they will be retroactive. Until that is decided, advice to employers might continue to be: Delete résumé spam at your own risk.
Workforce Management, April 2004, pp. 54-56 -- Subscribe Now!