Earlier in the year, I wrote an article for The OFCCP Digest about the requirements that the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has regarding the surveying of applicants and employees for demographic information. Since that time, the Department of Labor has released additional information that affects the surveying that is required of federal contractors and subcontractors. In light of the importance of understanding OFCCP’s surveying requirements and the level of confusion that has been created by the release of new information, I thought it might be helpful to revisit this topic.
Before going any further, a caveat and a note about nomenclature. Here’s the caveat: the information in this article is accurate as of November 10, 2014. It is possible OFCCP will publish additional information that will impact the surveying that needs to be done. This is one reason to closely monitor OFCCP’s website at http://www.dol.gov/ofccp.
The note on nomenclature involves the terms we use when discussing surveying. OFCCP’s formal regulations don’t actually use the word “surveying” anywhere in regard to the collection of demographic information from applicants or employees. The agency’s regulations regarding minorities and females refer to the obligation to identify the race, ethnicity, and gender of employees and “where possible” the race, ethnicity, and gender of applicants. (See 41 CFR 60-1.12(c).) The agency’s regulations regarding veterans and individuals with disabilities refer to the obligation to invite applicants and employees to self-identify as an individual protected under these regulations. (See 41 CFR 60-300.42 and 41 CFR 60-741.42.) When we talk about surveying applicants and employees, what we’re really discussing is the requirement to invite applicants and employees to provide demographic information.
Note that these are NOT the categories that are used for the annual EEO-1 report that must be submitted to the Equal Employment Opportunity Commission (EEOC). EEOC separates Pacific Islanders (including Hawaiian Natives) from Asians and adds a category for individuals who are two or more races. EEOC also considers Hispanic an ethnicity and not a race category.
On October 1, 2014, OFCCP released a revised version of the letter that opens an affirmative action compliance review (referred to as a “scheduling letter”) and the accompanying itemized listing of information to be submitted to OFCCP at the start of a compliance review. Many federal contractors and subcontractors were surprised that item 18 in the itemized listing indicated that companies must submit applicant, hire, promotion, and termination data using the five race/ethnicity categories noted above and not the seven race/ethnicity categories used by EEOC. However, OFCCP has never changed its regulations to match EEOC’s categories, and thus the itemized listing appropriately follows OFCCP’s formal regulations.
While the revised itemized listing uses the five traditional race/ethnicity categories, OFCCP does allow contractors to use the expanded race/ethnicity definitions that EEOC uses. In 2008, the agency released Directive 283 (now renumbered Directive 2008-02) which indicated that OFCCP would not cite companies for using EEOC’s race/ethnicity categories in collecting demographic information on applicants and employees. OFCCP officials have informally indicated that federal contractors and subcontractors may continue to rely on Directive 283 as they collect race/ethnicity information despite the explicit language found in the revised itemized listing. It seems likely that at some point, OFCCP will release an FAQ or otherwise formally acknowledge that Directive 283 is still in place.
Unlike OFCCP’s regulations for veterans and individuals with disabilities, the agency’s regulations for minorities and females provide very little formal guidance on soliciting race/ethnicity and gender information from applicants. However, there are some things we know from a history of OFCCP compliance reviews and from information OFCCP has provided in various forums.
As with applicants, OFCCP’s regulations for minorities and females provide very little formal guidance on soliciting race/ethnicity and gender information from employees. Here are some things we do know.
The requirements regarding the collection of demographic data on veteran status have changed dramatically in the last year. These requirements continue to evolve, and we are likely to see additional guidance from OFCCP in the coming year in this regard.
Only certain types of veterans are protected under the federal affirmative action regulations. The categories of veterans that are now included as protected veterans are as follows:
The classification “active duty wartime or campaign badge veteran” is a new name for the previously used classification “other protected veteran.” OFCCP adopted the nomenclature “active duty wartime or campaign badge veteran” in order to avoid the confusion that frequently occurred about what constituted an “other protected veteran.”
Companies are no longer required to solicit information on Vietnam era veteran status or special disabled veteran status. “Disabled veteran” has basically taken the place of “special disabled veteran,” and there is no longer any special coverage for Vietnam era veterans per se. (Vietnam era veterans will still be considered protected veterans if they fall into one of the four categories noted above.)
Federal contractors and subcontractors are required to solicit information on veteran status from applicants at the pre-offer stage of the selection process. This is a new requirement in OFCCP’s revised regulations for veterans. Companies must begin to invite applicants to provide information on veteran status at the time their affirmative action plan for veterans is next updated. If the affirmative action plan (AAP) has been updated since March 24, 2014, companies should already be inviting applicants to provide information on veteran status.
The revised regulations for veterans include a suggested format for the invitation to pre-offer applicants to self-identify as a protected veteran.
Federal contractors and subcontractors are also required to solicit information on veteran status from applicants at the post-offer stage of the selection process. While this is NOT a new requirement, some of the parameters for the solicitation of this information have changed. This is, in fact, one of the areas where OFCCP’s requirements continue to evolve.
OFCCP’s revised regulations for veterans indicate that federal contractors and subcontractors must solicit veteran information according to the categories found in 41 CFR 61-300. The regulations at 41 CFR 63-100 define the annual report that must be submitted to the Veterans Employment and Training Service (VETS). Until recently, these regulations required reporting on each of the four veterans categories noted above. However, in September of 2014, VETS issued new regulations that require companies to provide information on new hires and employees in the general category “protected veterans.” “Protected veterans” are veterans who fall into one of the four categories noted above.
This change to the report to be submitted to VETS (formerly called the VETS-100A report and now called the VETS-4212 report) potentially requires changes to the invitation to identify offered to individuals at the post-offer stage of the selection process. At some point in the next year, federal contractors and subcontractors will be allowed to solicit information from post-offer applicants (i.e. new hires) in the same basic way that this information is solicited from pre-offer applicants. Companies will basically ask one “yes” or “no” question about protected veteran status rather than asking about each protected veteran classification. However, there are two open questions associated with the change to the VETS-4212.
In regard to the invitation to employees to identify veteran status, the invitation itself will have much of the same language as the invitation for applicants (i.e. the invitation must state that the company is a federal contractor or subcontractor, that completion of the survey form is voluntary, etc.). The post-offer invitation must be provided to individuals some time before they begin their official job duties. Thus, it may be provided during new employee orientation or at some other time on the first day of employment so long as the individual has not begun his or her job duties.
The revised regulations for veterans include a suggested format for the invitation to new hires to self-identify as a protected veteran, although this format may be obsolete considering the changes that will be associated with the revisions to the VETS report.
As with the requirements regarding the collection of demographic data on veteran status, the requirements regarding the collection of demographic information on disability status have changed dramatically in the last year, especially in regard to collecting information on applicants.
Federal contractors and subcontractors are required to solicit information on disability status from applicants at the pre-offer stage of the selection process. This is a new requirement in OFCCP’s revised regulations for individuals with disabilities. This requirement to collect demographic information on disability at the pre-offer stage of the selection process has caused significant concern for federal contractors and subcontractors because of the explicit prohibition from collecting such data that is found in EEOC’s regulations for the Americans with Disabilities Act. However, OFCCP has a letter from EEOC indicating that this collection of disability information is acceptable because it is required under federal law. IMPORTANT NOTE for companies that are NOT federal contractors or subcontractors: the prohibition against collecting information on disability from applicants at the pre-offer stage of the selection process has NOT been lifted for companies that are not required to meet the provisions of the federal affirmative action regulations for individuals with disabilities.
Companies must begin to invite applicants to provide information on disability status at the time their affirmative action plan for individuals with disabilities is next updated. If the AAP has been updated since March 24, 2014, companies should already be inviting applicants to provide information on disability.
While companies have a certain amount of discretion as to the language that must be used in the invitation to identify veteran status, the same cannot be said of the invitation to identify disability status. Federal contractors and subcontractors MUST use a form developed by OFCCP for these purposes. The form can be found on OFCCP’s website. The disability survey form is two pages long, and CANNOT be modified in any significant way. While companies can create a version of the form that can be filled out electronically, an electronic form must retain all of the language that OFCCP has provided. One of OFCCP’s FAQs states that an electronic version of the disability survey must:
Companies are allowed to provide a preface or other explanatory materials with the disability survey, but the survey itself cannot be altered. As with the veterans regulations, the preamble to the disability regulations and several OFCCP FAQs indicate that companies may survey applicants for disability status at the same time they survey for race/gender and ethnicity.
It appears that federal contractors and subcontractors are required to retain self-identification forms on disability status received from applicants for two years (though smaller employers may be required to retain self-identification forms for only one year). As with the revised regulations for veterans, certain parts of the revised regulations for individuals with disabilities include a three-year retention requirement, and it is possible that some OFCCP compliance officers will interpret this three-year retention requirement as applying to solicitations for disability status from applicants.
Federal contractors and subcontractors are also required to solicit information on disability status from applicants at the post-offer stage of the selection process. While this is NOT a new requirement, some of the parameters for the solicitation of this information have changed.
During the first year after a company’s affirmative action plan for individuals with disabilities is updated, the company must conduct a re-survey of its entire workforce to gather information on disability status. This means that a company with a January 1 affirmative action plan must re-survey the entire workforce sometime before December 31, 2015. A company with a July 1 affirmative action plan must re-survey the entire workforce sometime before June 30, 2015.
There are several important features to this re-survey of the workforce.
After this first re-survey of the workforce, companies are required to conduct a re-survey of the workforce for disability status at least once every five years. At least once in the intervening years, employees must receive a formal reminder that they are allowed to update information on their disability status in the company’s HR systems.
Federal contractors and subcontractors will be challenged to keep up with all the surveying that is now required under OFCCP’s affirmative action regulations. Companies will need to stay alert for changes that OFCCP may continue to make to its surveying requirements. Companies will also need to ensure that they are making their best efforts to effectuate all of the new and continuing surveying requirements. Since the invitations to self-identify form the basis for much of the statistical reporting that will be done in a company’s affirmative action plans, it will be important to properly collect and retain as much of this information as possible.
Please note: nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances