Dela Cruz, Maria Faye: The Impact of Electronic Resumes and Job Search Engines on Employment Discrimination Law

In the olden days, one will recall the tedious process of preparing application letters and resumes enclosed in sealed envelopes, mailed to several prospective employers, and at times personally filed and hand-carried to identified companies. Imagine the enormous amount of time and effort one has to devote in seeking a job, not to mention the substantial expense and cost to be incurred in merely preparing and delivering the paperwork.

Today, at the click of the mouse and with absolutely no expense to incur one can have a real opportunity to be employed, that is by submitting an online resume and availing of job search engines over what is now popularly known as the Internet. The Internet has significantly revolutionized the job-seeking process not only on the part of the job-seeker, but also in favor of the employer.

In order to fully comprehend the advent of job seeking over the Internet, one should first know the definition of an Internet Applicant. The precise definition of the term “applicant” depends upon the employer’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. This interest might be expressed by completing an application form, or might be expressed orally, depending on the employer’s practice.

Thus, an Internet Applicant is defined as an individual who satisfies the following four criteria:

  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
  2. The employer considers the individual for employment in a particular position;
  3. The individual’s expression of interest indicates that he possesses the basic qualifications for the position; and
  4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

In the Internet Applicant rule, the method of advertising a job is not the determining factor in identifying whether the Rule applies. Rather, the determining factor is whether the expression of interest in employment was made through the Internet or related data technologies.

The individual submits an expression of interest in employment through the Internet or related electronic data technologies;

By the Internet and related electronic technologies, there are six (6) types of Internet-related technologies and applications that are widely used in recruitment and selection today, and the following are:

  1. Electronic mail / email
  2. Resume databases
  3. Job banks
  4. Electronic scanning technology
  5. Applicant tracking systems / applicant service providers
  6. Applicant screeners

Transmission of a resume by fax constitutes transmission by related electronic data technologies.

The employer considers the individual for employment in a particular position;

This simply means that the employer assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.

An employer may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor established. Likewise, an employer may establish a protocol under which it refrains from considering expression of interest, such as unsolicited resumes, that are not submitted with respect to a particular position.

If the employer has established standard procedures that job seekers must follow in order to express an interest in employment, the former does not have to consider those applicants (individuals) who do not follow these procedures. Similarly, the employer does not have to consider for employment individuals who do not specify a particular position, so long as that is the contractor’s consistent practice.

The individual’s expression of interest indicates that he possesses the basic qualifications for the position

The “basic qualifications” which an applicant must possess means qualifications that the employer advertised to potential applicants or criteria which the employer established in advance. In addition, the qualifications must be:

  1. Noncomparative features of a job seeker ( e.g. three year’s experience in a particular position, rather than a comparative requirements such as being one of the top five among the candidates in years of experience)
  2. Objective
  3. Relevant to performance of the particular position

All basic qualifications must be established prior to the selection process. Basic qualifications are the qualifications advertised to potential applicants as being required in order to be considered for the position. If the employer does not advertise for the position but, for example, searches an external resume database, the contractor must make and maintain a record of basic qualifications to be used in the search prior to considering any expression of interest for that particular position.

If a large number of applicants meeting the basic qualifications apply, the employer has three options:

First, the employer may use data management technique to limit the number who must be contacted to determine their interest in the position.

Second, the employer could screen expressions of interest to determine whether some job seekers have removed themselves from consideration based on information the individual has provided in his or her expression of interest, such as salary requirements or preferences.

Finally, the employer, may screen the pool of job applicants possessing the basic qualifications for additional preferred qualification to narrow the pool of those to be further considered.

Here is an example of how this would work:

An employer initially searches an external job database with 50,000 job seekers for 3 basic qualifications for a bilingual emergency room nursing supervisor (a 4-year nursing degree, state certification as an RN, and fluency in English and Spanish).

The initial screen for the first three (3) basic qualifications narrows the pool to 10,000.

The employer then adds a fourth, pre-established, basic qualification, 3 years of emergency room nursing experience, and narrows the pool to 1,000.

Finally, the employer adds a fifth pre-established, basic qualification, 2 years supervisory experience, which results in a pool of 75 job seekers.

Under the Internet Applicant rule, only the 75 job seekers meeting all five basis qualifications would be Internet Applicants, assuming the other three prongs of the Internet Applicant definition were met.

The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position

The Internet Applicant rules explains that an employer may conclude that an individual has removed himself or herself from the selection process or has otherwise indicated lack of interest in the position based on the individual’s express statement or on the individual’s passive demonstration of disinterest. For example, passive disinterest may be shown by:

  • Declining the employer’s invitation for a job interview;
  • Declining a job offer
  • Repeatedly failing to respond to an employer’s telephone inquiries or emails asking about his or her interest in a job

An employer may also presume a lack of continuing interest based on a review of the job seeker’s expression of interest. For example, statements pertaining to:

  1. The applicant’s interest in the specific position or type of position at issue;
  2. The location of work; or
  3. His or her salary requirements

May provide the basis for determining the individual is no longer interested in the position provided that the employer has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers.

It is imperative that the four (4) criteria listed above be present in order for one to be considered an Internet Applicant inasmuch as it is only a valid applicant who may invoke certain rights based on existing laws. Unlike in the United States where employment discrimination laws are abundant, the Philippines hardly have discrimination laws, except only those rulings contained in jurisprudence.

Given that online applications are now pervasive in the Philippines, it might be prudent to consider following the pattern of other jurisdictions by way of enacting employment discrimination laws. Not only will this uphold the Constitutional precept of “equal protection of laws”, it will likewise guarantee against possible future abuses by scheming employers who may take advantage over non-suspecting applicants.

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