The Office of Federal Contract Compliance Programs (“OFCCP”) recently published several new Frequently Asked Questions (“FAQs”) on the newly minted veteran and disability rules to answer lingering questions of contractors, particularly with respect to how to conduct the new data analyses required by these rules. OFCCP initially published a number of FAQs immediately after the August 27, 2013 release of the final veteran and disability rules. Since then, it has periodically updated those FAQs to provide guidance to contractors on how to comply with and implement the new rules. The most recent installments to the FAQs provide some important guidance to contractors.
Counting Veterans Self-Identification
Background on FAQ
The new veteran rules now require contractors to offer applicants an opportunity to identify themselves as protected veterans at both the pre and post-offer stages. Contractors must use applicant responses to determine whether they have met their annual hiring benchmarks for veterans. Contractors can establish their hiring benchmarks either by using the national percentage established by OFCCP (currently 8%) or creating their own hiring benchmark using certain criteria identified by OFCCP.
Contractors have been unsure whether they can count an applicant towards the veteran hiring benchmark in situations where the applicant identifies himself as a protected veteran during the pre-offer stage but does not self-identify as a veteran during the post-offer stage. OFCCP noted in the following FAQ that contractors can count those applicants towards the annual benchmark. We agree that contractors should be able to assume that applicants correctly identified themselves at the pre-offer stage.
If an individual self-identifies as a protected veteran at the pre-offer stage of the application process, but does not self-identify again at the post-offer stage, may a contractor still count the individual as a protected veteran for purposes of applying the hiring benchmark and performing the required data collection analysis?
Section 60-300.42 of the new VEVRAA regulations requires contractors to invite applicants to self-identify as “protected veterans” at both the pre-offer and post-offer stages of the application process. If an applicant self-identifies as a “protected veteran” at the pre-offer stage but not at the post-offer stage, the contractor may identify the new hire as a “protected veteran” for purposes of compliance with the new VEVRAA regulations.
Background on FAQ
The new veteran and disability rules require contractors to conduct various data analyses during their annual affirmative action plan cycles analyzing, among other items, the total number of jobs filled and the total number of job openings. There has been some confusion on what “jobs filled” means and how that differs from people hired. OFCCP previously explained that “jobs filled” refers to “all jobs the company filled by any means” including competitive (i.e., hiring) and non-competitive selections (i.e., merit promotions, transfers, and reassignments).
There have been some lingering questions about whether transfers within the same position or automatic promotions would qualify as “jobs filled”. OFCCP clarified in the following FAQ that jobs filled only included movements into different positions.
Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?
Both competitive and non-competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one “step” to the next within the same position would not be a “job filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another.
Hiring Benchmark for Veterans
Background on FAQ
As explained above, the new veteran rules require contractors to create annual hiring benchmarks whereby contractors assess their hiring of veterans in the year preceding their affirmative action plan to determine if they are meeting certain targets.
Many contractors have wondered how the term “hires” would be interpreted and whether it would include promotions. In the following FAQ, OFCCP affirmed that both internal and external competitive hires would be counted in the annual analyses.
When applying the hiring benchmark, should contractors use the same definition of “hires” that is used for purposes of the data collection analysis required by 60-300.44(k)?
Yes. Since neither the new regulations, nor its preamble, specify a different definition of “hires” for the VEVRAA hiring benchmark, contractors should use the definition of hires that is applicable to the data collection analysis obligation. That definition encompasses those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. This will ensure consistency in the interpretations of these key provisions of the new regulations.
Self-Identification of Disability
Background on FAQ
Under the new disability rules, contractors are required to invite their current employees to self-identify as individuals with disabilities. This must be done once between March 24, 2014 and March 24, 2015 and then once every five years after that.
Many contractors have employees complete information through company portals and intranets, so contractors have naturally wondered whether they can provide the self-identification form to employees in that manner. OFCCP found in the following FAQ that using such a process was acceptable.
May a contractor fulfill its obligation to invite its current employees to self-identify as having a disability by asking them to sign into an employee portal on the company Intranet?
The Section 503 regulations do not prescribe a particular method that contractors must use to invite its employees to self-identify. Contractors therefore have the flexibility to choose any method or methods that are reasonable and likely to be effective, given its particular circumstances. For example, contractors may choose to inform employees that it is inviting their self-identification in the same manner it uses to disseminate other important workplace notices to its employees. This might be emailing the notice of the survey and the self-identification form, or an Intranet link to the form, to all employees, or it might be prominently posting a notice with a link to the self-identification form on the company Intranet, prominently posting a notice and copies of the form in the employee lounge, or distributing a notice and copies of the form where employees go to sign in or pick up their paycheck.
Utilization Analysis for Disabled
Background on FAQ
On the next affirmative action plan after March 24, 2014, contractors must conduct a utilization analysis to determine the whether 7% of each job group (or for the entire workforce if the contractor has less than 100 employees) is comprised of individuals with disabilities.
Some contractors have wondered whether they may be able to exclude employees from this analysis if they do not respond to the invitation to identify their disabled status. Not surprisingly, OFCCP indicated in the following FAQ that employees who did not respond should be counted in the analysis as nondisabled individuals unless the contractor has actual knowledge that those employees are disabled.
How should non-responses to the invitation to self-identify as an individual with a disability be treated when conducting the utilization analysis?
The regulations require contractors to conduct an annual utilization analysis to determine the representation of people with disabilities in each job group, or if it has 100 or fewer employees, in its workforce as a whole. To calculate the percentage of a job group (or workforce) that is comprised of people with disabilities contractors should use the same methodology used to calculate the percentage of a job group (or workforce) that is comprised of any other specific demographic group. Specifically, contractors should compare the number of individuals identified as having a disability to the total number of employees in the job group. Non-responses should be counted solely in the job group (or workforce) total, unless the contractor has actual knowledge that a particular non-responsive individual(s) has a disability. The contractor may count as an individual with a disability any individual who it actually knows to have a disability, whether or not the individual chose to self-identify.
Hiring of Disabled Candidates
In large part due to OFCCP’s repeated emphasis that contractors must take affirmative action to hire and promote individuals with disabilities in accordance with the new disability rules, contractors have wondered whether they could reject disabled candidates who met the basic or minimum qualifications for the position but were not the best candidates. Although OFCCP correctly stated that contractors are only to hire the best qualified candidates for the position, in the following FAQ they underscored the importance of contractors having adequate and proper documentation to show why they selected a certain candidate over a minimally qualified individual with a disability.
Under the new regulations, must a contractor hire an individual with a disability who is not the best qualified but who meets the minimum requirements of the job for the purposes of affirmative action?
No. The Section 503 regulations do not require contractors to hire an individual who is not qualified for the position being sought. Nor do they require contractors to hire a less qualified candidate instead of the best qualified candidate for the purposes of affirmative action. However, it would not violate Section 503 for a contractor to select a person with a disability over a candidate without a disability who was equally or better qualified, so long as that selection was not based on a prohibited factor such as race, gender or ethnicity.