Last week OFCCP released new FAQs providing additional guidance for employers implementing the new veterans and disability of regulations. OFCCP has used the post-effective date release to clarify questions for contractors as they work to implement the regulation’s new obligations.

On the issue of the treatment of individuals who identify as a protected veteran at the pre-offer stage but not post-offer, OFCCP posted the following FAQ:

Q: 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?

A: 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.

This FAQ makes sense to us. Employers should be able to assume the applicant accurately identified him/ herself at the time and should get credit for hiring applicants who identify themselves as protected veterans but later decline to do so.

OFCCP also provided this guidance of the issue of the hiring of individuals with disabilities:

Q: 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?

A: 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.

So what OFCCP is saying is that while employers are not required to hire an equally-qualified individual with a disability it would not be a violation if an employer did so.  Reading between the lines, it seems that with this FAQ OFCCP is putting employers on notice that, if this type of situation is presented during a compliance review, employers better be prepared to explain, to the Agency’s satisfaction, why they didn’t select a qualified individual with a disability instead of an equally-qualified candidate without a disability.

Stay tuned for additional posts on other new FAQs.