On January 20, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) published two Frequently Asked Questions (“FAQs”) addressing what self-identification information contractors are required to solicit from protected veterans during the post-offer stage of the application process. Specifically, in light of the new VETS-4212 Form that does not require information on the specific protected veteran categories, OFCCP considered whether, contractors must continue to solicit information about the specific protected veteran category or categories that an applicant falls into during the post-offer stage, or whether contractors can more broadly invite applicants to self-identity as protected veterans. OFCCP decided that contractors need not collect such category-specific data during the post-offer stage:
[S]ince the new VETS-4212 report no longer requires contractors to provide this information by the individual protected veteran categories, contractors are not required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirement. Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.
This marks a change from the previous post-offer requirement. The underlying self-identification requirements come from OFCCP’s current regulations, issued on March 24, 2014, which require contractors to invite applicants to voluntarily self-identify their protected veteran status during both the pre-offer and post-offer stages of the application process. For the pre-offer stage, contractors are not required to invite applicants to self-identify their specific protected veteran categories. There is no change to this requirement. At the post offer stage, which includes the period after candidates receive offers of employment but before they began working, contractors were required to invite applicants to self-identify the specific category or categories of protected veteran to which they belong, which includes recently separated veterans, disabled veterans, Armed Forces service medal veterans, and active duty wartime or campaign badge veterans.
Until now, the reason for the category-specific data at the post-offer stage was needed to complete the Veterans Employment and Training Services (“VETS”) VETS-100A Form. However, in September 2014, after OFCCP’s veteran regulations had gone into effect, VETS released a new VETS-4212 Form to replace the VETS-100A form. Under the new VETS-4212 form, contractors are only required to report aggregate data on the number of protected veterans rather than the specific categories of protected veterans. On this basis, OFCCP reasoned in the new FAQs that contractors are no longer required to solicit information about the specific categories of protected veterans.
OFCCP, however, stated that contractors may still solicit such information. In deciding whether to continue soliciting the specific protected veteran categories from applicants at the post-offer stage, contractors should weigh the value of this more detailed information with the burden of the additional recordkeeping and the risk of collecting information that is no longer required by OFCCP.
