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.

Soliciting Information on Race/Ethnicity and Gender

  • Race/Ethnicity Categories
  • Federal contractors and subcontractors must provide applicants and employees with an opportunity to identify their race/ethnicity and gender. The race/ethnicity categories used in OFCCP’s regulations are as follows:
    • White
    • American Indian/Alaskan Native
    • Asian/Pacific Islander (which includes individuals from the Indian subcontinent)
    • Black (African-American)
    • Hispanic
  • 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.

  • Guidelines Regarding Solicitation of Race/Ethnicity and Gender Information from Applicants

    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.

    • The invitation to self-identify must be provided to all individuals who are considered to be Internet applicants under OFCCP’s Internet applicant regulations. It is important to remember that the Internet applicant regulations provide a definition for what OFCCP considers to be viable candidates, and that these regulations do not simply refer to the means used by an individual to express interest in an open position. Federal contractors and subcontractors may survey individuals who are not Internet applicants for race/ethnicity and gender, but the survey MUST be provided to candidates who meet the definition of being an Internet applicant.
    • Applicants must be given the invitation to self-identify sometime prior to the interview stage of the selection process.
    • Federal contractors are required to keep an applicant’s self-identification form separate from that individual’s other application materials.
    • Federal contractors and subcontractors should be wary of guessing the race/ethnicity or gender of applicants who have not been seen. These applicants should be shown as having a race/ethnicity and/or gender of unknown in applicant tracking systems. OFCCP compliance officers have frequently indicated that contractors should make a visual identification of an applicant’s race/ethnicity and gender if the applicant is interviewed in-person, and OFCCP has occasionally instructed companies to guess on race/ethnicity or gender of applicants based on name. In 2004, OFCCP issued a directive instructing companies to avoid guessing on the race/ethnicity or gender of applicants, but this directive was rescinded in late 2013. Companies must decide what course of action to take in regard to applicants who fail to self-identify.
    • Federal contractors and subcontractors are generally required to retain self-identification forms received from applicants for two years. Smaller employers may be required to retain self-identification forms for only one year.
  • Guidelines Regarding Solicitation of Race/Ethnicity and Gender Information from Employees

    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.

    • Federal contractors and subcontractors must provide a form to all new employees that allows them to identify their race/ethnicity and gender.
    • The self-identification form must indicate that completion of this form is voluntary.
    • If an employee declines to identify his or her race/ethnicity or gender, federal contractors and subcontractors should make a visual identification of the employee’s race/ethnicity and gender. Race/ethnicity and gender data on all employees is required for the annual EEO-1 report and for affirmative action plans. Unlike applicants, there is nothing in OFCCP’s (or EEOC’s) regulations that allow companies to show the race/ethnicity or gender of employees as unknown.

Soliciting Information on Veteran Status

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.

  • Protected Veteran Categories

    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:

    • Disabled veterans
    • Recently separated veterans (i.e. an individual within three years of separation from military service)
    • Armed forces service medal veterans
    • Active duty wartime or campaign badge veterans

    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.)

  • Guidelines Regarding Solicitation of Veteran Information from Applicants

    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 invitation to identify veteran status must include certain language. This includes language that the company is a federal contractor or subcontractor, that completion of any survey form is voluntary, and that information from any survey form will be kept confidential.
    • The invitation to self-identify must include information on the four protected veteran classifications. The invitation should then ask whether the applicant belongs to one of these four classifications. A best practice would be to provide an opportunity for the applicant to indicate that he or she does not belong to one of these classifications and to provide an opportunity to indicate that the applicant does not wish to provide an answer to this question.
    • The revised regulations for veterans make no mention of the timing for the applicant survey on veteran status. However, the preamble to the regulations and several OFCCP FAQs indicate that companies may survey applicants for veteran status at the same time they survey for race/gender and ethnicity. While OFCCP did not fully import the provisions of its Internet Applicant rule into the revised regulations on veterans, the agency has indicated that it will allow companies to limit demographic surveys on veteran status to those individuals who are considered Internet applicants.
    • It appears that federal contractors and subcontractors are required to retain self-identification forms received from applicants for two years (though smaller employers may be required to retain self-identification forms for only one year). Certain parts of the revised regulations regarding veterans 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 veteran status from applicants.

    The revised regulations for veterans include a suggested format for the invitation to pre-offer applicants to self-identify as a protected veteran.

  • Guidelines Regarding Solicitation of Veteran Status from New Hires

    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.

    • When are companies required to move to this new format for soliciting veteran information from new hires? OFCCP has not said that this change must be made immediately. The agency is likely to issue an FAQ responding to this question.
    • Are companies allowed to invite new hires to provide information on each veteran classification? Companies will only report on whether new hires and employees fall under the general category of protected veteran in the VETS-4212 report. However, it is not clear whether companies are PROHIBITED from surveying for the individual veteran classifications. Again, we can hope for clarification from OFCCP on this point.

    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.

Soliciting Information on Disability Status

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.

  • Guidelines Regarding Solicitation of Disability Information from 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:

    • Display the OMB number and expiration date;
    • Contain the text of the form without alteration;
    • Use a sans-serif font, such as Calibri or Arial; and
    • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

    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.

  • Guidelines Regarding Solicitation of Disability Status from New Hires

    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.

    • Most critically, companies MUST use the disability survey form developed by OFCCP. This means that new hires will be provided with this form twice within a relatively short period: once at the pre-offer stage of the selection process, and again at the post-offer stage of the process.
    • As with the invitation to identify veteran status, the post-offer invitation for disability must be offered before an individual begins his or her job duties.
    • The information collected from the survey of new hires may NOT be kept in an employee’s personnel or medical file. An FAQ from OFCCP indicates that this information may be kept in an HR information system so long as the information remains confidential.
    • Companies may provide a preface or other explanatory materials with the disability survey, but the survey itself cannot be altered.
  • Guidelines Regarding Solicitation of Disability from the Entire Workforce

    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.

    • OFCCP is only requiring a re-survey of the workforce for disability status. Companies are not required to re-survey for veteran status or other demographic information.
    • Companies must once again use OFCCP’s prescribed survey form to gather information on disability. While companies are allowed to include introductory or explanatory materials with the survey, the survey form must be used in its entirety. If the survey is conducted electronically, the provisions noted above regarding electronic use of OFCCP’s form hold.

    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.

Conclusion

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