Updated VEVRAA and Section 503 FAQ’s from OFCCP

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OFCCP Attempts to Clear Up Confusion on New VEVRAA and 503 Regulations

To clear up the confusion on the revised VEVRAA and Section 503 regulations, OFCCP has published additional FAQ’s.

The first FAQ clarifies the definition of the term “jobs filled” as follows:

Q. Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attaining a particular certification?  

A. Both competitive and non-competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one “step” to the next within the same position would not be a “job filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another. 

The second FAQ clarifies how a contractor should track the veteran status of someone who identifies differently on the pre-offer vs. the post-offer self ID form: 

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 regulations.

The final FAQ clarifies the definition of the term “hires” for the hiring benchmark:

Q. When applying the hiring benchmark, should contractors use the same definition of “hires” used for purposes of the data collection analysis required by 60-300.44(k)?

A. Yes. Since neither the new regulations nor its preamble specifies a different definition of “hires” for the VEVRAA hiring benchmark, contractors should use the definition of hires that applies to the data collection analysis obligation.

That definition encompasses those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. This will ensure consistency in the interpretations of these key provisions of the new regulations.

All FAQ’s regarding the (VEVRAA) Regulations can be found on the DOL’s website at http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm#Q34

Section 503

FAQ One clarifies that a contractor does not have an obligation to hire an individual with a disability if that individual is not the best qualified for the position:

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 affirmative action?

A. No. 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 to meet their affirmative action obligations. 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 the selection was not based on a prohibited factor such as race, gender, or ethnicity.

FAQ Two clarifies the definition of the term “jobs filled” as follows:

Q. Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?

A. Both competitive and non-competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact-based determination. So, for example, a time-driven salary increase from one “step” to the next within the same position would not be a “job filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another.

FAQ Three clarifies the method by which contractors can invite employees to self-identify:

Q. May a contractor fulfill its obligation to invite its current employees to self-identify as having a disability by asking them to sign into an employee portal on the company Intranet?

A. Section 503 regulations do not prescribe a particular method that contractors must use to invite their employees to self-identify. Contractors, therefore, have the flexibility to choose any method or methods that are reasonable and likely to be effective, given its particular circumstances. For example, contractors may choose to inform employees that it is inviting their self-identification in the same manner it uses to disseminate other important workplace notices to their employees. This might be emailing the notice of the survey and the self-identification form, or an Intranet link to the form, to all employees, or it might be prominently posting a notice with a link to the self-identification form on the company Intranet, prominently posting a notice and copies of the form in the employee lounge, or distributing a notice and copies of the form where employees go to sign in or pick up their paycheck.

FAQ Four clarifies how to treat non-responses with regard to the self ID form:

Q. How should non-responses to the invitation to self-identify as an individual with a disability be treated when conducting the utilization analysis?

A. The regulations require contractors to conduct an annual utilization analysis to determine the representation of people with disabilities in each job group, or if it has 100 or fewer employees, in its workforce as a whole. To calculate the percentage of a job group (or workforce) that is comprised of people with disabilities, contractors should use the same methodology used to calculate the percentage of a job group (or workforce) that is comprised of any other specific demographic group. Specifically, contractors should compare the number of individuals identified as having a disability to the total number of employees in the job group. Non-responses should be counted solely in the job group (or workforce) total unless the contractor has actual knowledge that a particular non-responsive individual(s) has a disability. The contractor may count as an individual with a disability any individual who it knows to have a disability, whether or not the individual chose to self-identify.

All FAQ’s regarding the Section 503 regulations can be found on the DOL’s website at http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm#Q33 

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