The revised regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in regard to protected veterans and individuals with disabilities are now in effect. Companies were required to implement some of the items in these revised regulations by March 24, 2014. There are other requirements in the revised regulations that must be implemented when companies next update their affirmative action plans for veterans and individuals with disabilities.
One of the most important set of changes in the revised regulations are the changes regarding surveying. There are major revisions that federal contractors and subcontractors must make to the way they survey applicants and employees for information on veteran and disability status. While companies may make these changes on or after March 24, 2014, they MUST make some of these changes no later than the date that AAPs are next updated.
Subparts Within the Revised Regulations
It is worthwhile to take a moment to review the structure of the revised regulations. The revised regulations for protected veterans and for individuals with disabilities are each divided into five major parts.
- Subpart A contains the equal opportunity clause that has certain provisions that were to have been implemented by March 24, 2014.
- Subpart B contains information on discrimination and certain actions that are prohibited under the regulations. Subpart B also contains a few provisions that were to have been implemented by March 24.
- Subpart C contains provisions regarding a company’s affirmative action program. Subpart C includes the data metrics, surveying requirements, and many of the other provisions that are of greatest concern to federal contractors and subcontractors. These are the provisions that need to be implemented at the time that a company’s affirmative action plans are next updated.
- Subpart D contains information on enforcement of the regulations and on complaint procedures.
- Subpart E contains various ancillary matters including information on record-keeping and OFCCP’s right to access records.
Certain companies may be covered by subparts A, B, D, and E of the revised regulations, but not by Subpart C. For example, smaller companies and companies that hold very small federal contracts may not be covered by Subpart C. The January 2014 article we wrote for The OFCCP Digest contains more complete information about the thresholds associated with the various subparts in the revised regulations.
Surveying Requirements for New Employees
Federal contractors and subcontractors have been required to survey new employees regarding veteran and disability status for some time. This requirement did not change with the revised regulations. However, there are a number of new requirements regarding the surveying of employees. These new requirements come into effect on the date when a company’s affirmative action plans are scheduled to be updated. Thus, if a company has affirmative action plans that begin on January 1, the requirements in the revised regulations regarding the surveying of new employees must be implemented no later than January 1, 2015.
- Veteran Survey
The employee survey for veteran status must include certain language. For example, the survey must indicate that the company is an affirmative action employer, that completion of the survey is voluntary, and that information from the survey will be kept confidential. The revised regulations for veterans include a suggested format for this survey.
The revised regulations make it clear that companies should survey for each of the current protected veteran classifications. The protected veteran classifications found in the revised regulations are as follows:
- Disabled veteran
- Recently separated veteran (i.e. an individual within three years of separation from military service)
- Armed forces service medal veteran
- Active wartime or campaign badge veteran
The classification “active wartime or campaign badge veteran” is a new name for the classification “other protected veteran.” OFCCP adopted the nomenclature “active 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 specifically survey for 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.
While most survey questions about veteran status should be “yes” or “no” questions, any question about recently separated veteran status should ask for a date of separation. Each veteran will reach a point where they are more than three years from their date of separation from service. At that time, they should no longer be shown in any reporting as a recently separated veteran.
- Disability Survey
Companies have a certain amount of discretion as to the language that must be used in the veteran survey for new employees. The same cannot be said of the survey for disability. Federal contractors and subcontractors MUST use a form developed by OFCCP to survey for disability. 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.
- Survey Timing
OFCCP has made it clear that companies are required to survey new employees at the “post-offer, pre-hire” stage of employment. In the past, many companies have surveyed new employees for veteran and disability status during new hire orientation. Companies may continue to survey in this manner so long as the new hire orientation occurs before an employee begins his or her job duties. Companies can also survey individuals who have been offered a position at a point prior to the time the individual formally becomes an employee. For example, this survey can be conducted when an individual is asked to complete an employment contract or take a pre-employment physical.
Surveying Requirements for Applicants
While federal contractors and subcontractors have been required to survey applicants for race/ethnicity and gender for some time, there was no requirement to survey applicants regarding veteran or disability status until the revised regulations came into effect. Companies will now be required to begin surveying applicants for veteran and disability status no later than the date that a company’s AAPs are next scheduled to be updated. To return to our example above, if a company has affirmative action plans that begin on January 1st, the requirements regarding the surveying of applicants must be implemented no later than January 1, 2015.
- Veterans Survey
The revised regulations require applicant surveys for veteran status to contain language that parallels the language in the survey for employees. Again, the survey must indicate that the company is an affirmative action employer, that completion of the survey is voluntary, and that information from the survey will be kept confidential. However, companies are NOT required to ask applicants about specific veterans classifications. Instead, companies are required to describe the four protected veteran classifications, and then to ask applicants one “yes” or “no” question about whether they fall into any of these classifications. Companies are allowed to survey for all protected veteran classifications, but the formal requirement is to determine whether an applicant generally falls into the category of being a protected veteran.
- Disability Survey
One of the most significant changes associated with the revised regulations is the requirement to survey applicants for disability at the pre-offer stage. Companies have been told for years that the Americans with Disabilities Act prevents any pre-offer disability survey of applicants. However, OFCCP has received guidance from the Equal Employment Opportunity Commission (EEOC) stating that federal contractors and subcontractors may be required to conduct such a survey.
As is the case with the survey for new employees, federal contractors and subcontractors MUST use the form developed by OFCCP to survey applicants for disability status. Again, the form CANNOT be modified in any significant way. Companies can collect disability information on applicants electronically, but the requirements noted above in regard to any electronic use of the form must be followed here as well.
- Survey Timing
The revised regulations themselves make no mention of the timing for the applicant survey on veteran and disability status. However, the preamble to the regulations and several OFCCP FAQs indicate that companies may survey applicants for veteran and disability 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 and individuals with disabilities, the agency has indicated that it will allow companies to limit demographic surveys on veteran and disability status to those individuals who are considered “Internet applicants.”
Re-Survey of the Entire Workforce
Along with surveying applicants and new employees, there is an additional survey requirement under the revised regulations. During the first year after a company’s affirmative action plans are updated, the company must conduct a re-survey of its entire workforce to gather information on disability status. To continue with the example we have been using, this means that a company with January 1 affirmative action plans must re-survey the entire workforce sometime before December 31, 2015. A company with July 1 affirmative action plans must re-survey the entire workforce sometime before June 30, 2015.
There are several important features to this re-survey of the workforce. First, 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. Second, 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 once again 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.
Preparing for the New Survey Requirements
What kinds of things should federal contractors and subcontractors be doing to prepare for all the new surveying required by the revised regulations? We have the following suggestions.
- Develop a time line. While the requirements in the revised regulations regarding new employees and applicants may be implemented at any time, they MUST be implemented by the date that a company’s AAPs are to be updated. Companies should determine a time line for implementation of the steps that will allow them to meet the new requirements.
- Determine the steps required to implement the new requirements. Companies will need to update applicant and employee survey forms and find a way to integrate OFCCP’s disability survey into their processes.
- Coordinate with persons responsible for HR information systems and applicant tracking systems. HR information systems and applicant tracking systems will need to be able to accept data from revised survey forms and will need to be able to report on this data. If companies will be using an electronic survey to collect demographic data, systems need to be updated with OFCCP’s disability survey.
- Provide information to employees and applicants about the new surveys. Employees should be made aware of the reason for the re-survey of the workforce when this occurs. Applicants and new employees should be made aware of the reasons that the company is asking for information about disability status and the remaining demographic information that companies are required to collect.
- Consider conducting a more complete demographic re-survey of the entire workforce. Rather than simply surveying for disability status, companies should consider surveying for other demographic information as well. There are companies that currently have inaccurate information on the veteran and disability status of employees, and some companies have inaccurate information on race, ethnicity, and other types of demographic information. A more comprehensive re-survey of the workforce diminishes the focus on the request for disability information and may provide the company with more accurate information in a variety of areas.
OFCCP is likely to continue to provide more information on surveying as the revised regulations come into full effect. Federal contractors and subcontractors should regularly check OFCCP’s website at http://www.dol.gov/ofccp for updates from the agency. The agency’s prescribed form for collecting data on disability is available on OFCCP’s website.
For more information on OFCCP’s revised regulations regarding protected veterans and individuals with disabilities, please contact Bill Osterndorf at firstname.lastname@example.org.