As we mentioned earlier, at the SWARM Regional Conference this afternoon, Regional Director Melissa Speer and Deputy Director Aida Collins, answered questions from conference attendees about implementation of the new veteran and disability regulations.

During the Q&A session, Melissa and Aida graciously took questions from the crowd about real-world implementation scenarios.  For those questions they could not answer, Melissa and Aida promised to take the issues to OFCCP’s National Office to seek clarification and encouraged the crowd to “be their watchdogs” to ensure OFCCP is responding to the questions.

The following are highlights from the Q&A session:

  •  You can’t update a candidate’s pre-offer self-identification as to disability status with their post-offer self-identification status
  • You can’t allow employees to update their disability status without completing the required form
  • Employers must keep each completed hardcopy self-identification form (or a scanned copy); this leaves open the question of what employers must do if utilizing an on-line application system (and electronic form)
  • Keeping a notice posted on a bulletin board notifying employees of their right to update their disability status at any time satisfies the duty to “remind” employees of their right in between the required 5-year survey
  • As long as all employees have access, sending an e-mail with a link to the form satisfies the survey obligation
  • In-line “progressions” do not need to be included as a “job filled” under the data collection obligations of the new regulations

In addition to the above, Melissa Speer reiterated multiple times during the session that “there is not disparate impact under these regulations, only disparate treatment” and the Agency will not be conducting adverse impact analyses.  The open question is exactly what this means and how it will play out in compliance reviews.

Echoing the sentiments we’ve repeated throughout this initial implementation phase of the regulations, Melissa acknowledged that answers to a number of contractor questions will come as OFCCP engages in enforcement and compliance reviews now that the regulations are effective.  As always, stay tuned for further updates . . .