With the passing of the March 24^th effective date for OFCCP’s new veteran and disability regulations, we will turn our focus to the Sub-Part C obligations which must be implemented with the next regular update to your affirmative action plan.  Don’t worry though, we will also continue to blog about enforcement and implementation of the non-Sub-Part C obligations to let you know what we’re seeing and hearing from OFCCP and audits.

At the top of the list of Sub-Part C items, and likely the first on everyone’s minds, are the new Self-ID obligations.

Under the new regulations, contractors for the first time are required to solicit disability and veteran status for applicants, pre-offer.  Contractors are also now required to solicit disability status post-offer.

With respect to the invitation to self-id as a disabled individual, OFCCP has made it relatively “easy” by proscribing the language and form contractors must use to obtain this information.

With respect to inviting individuals to provide their veteran status, OFCCP has offered suggested language and forms, and has left it up to each employer to develop the process for obtaining this information.

At the pre-offer stage, the regulations state employers

 “shall invite applicants to inform the contractor whether the applicant believes he or she is a protected veteran”

At the post-offer stage, the regulations state employers

 “shall invite applicants to inform the contractor whether the applicant believes he or she belongs to one or more of the specific categories of protected veterans.”

Disabled veteran is one of the categories of protected veteran covered by the regulations.

The regulation says nothing about whether it is permissible to request applicants to identify their particular category of “protected veteran” at the pre-offer stage, or whether employers must wait to make this inquiry until the post-offer stage and many employers are contemplating using a single self-id form for the pre- and post-offer inquiries in order to streamline their processes and information gathering systems, as well as reduce likely confusion for applicants.

At an industry meeting in Washington D.C. last week, representatives from OFCCP raised concerns with this approach – citing specifically the concern around collecting data on disabled veterans at the pre-offer stage outside of the pre-approved disability self-id form.

So, what are employers to do?

At this point it is up to employers to determine their course of action after weighing the potential risk of implementing a one-form system that is not explicitly proscribed by the regulations (nor expressly prohibited) against the benefits of working with a single form.

A couple of things to keep in mind as you consider the options:

First, the obligation to invite disclosure of protected veteran status is contained in Sub-Part C of the regulations, which means employers have some time to work through this issue – less time unfortunately if you have an April 1 plan year date.

Second, given the discussion around this issue, OFCCP may issue some more formal guidance in this area in the near future that will hopefully provide clarity.

But, keep in mind OFCCP comments in industry meetings (or in FAQs and on webinars for that matter) are not binding law.  In other words, a subsequent FAQ response or Webinar statement saying employers cannot invite pre-offer applicants to identify a specific category may not be the last word given that the regulation itself does not prohibit the practice.

As always, we will look to update you as soon as we learn of any new developments in this area.