OFCCP Issues New Veteran Self-Identification FAQs
In response to recent inquiries from the federal contractor community, the Office of Federal Contract Compliance Programs (“OFCCP”) recently posted two Frequently Asked Questions (“FAQs”) regarding the new VETS-4212 reporting form and the requirement to invite voluntary self-identification of protected veteran status under the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”).
The first FAQ addresses whether contractors must continue to invite self-identification by category of protected veteran at the post-offer stage. For background, a few months ago, the Veterans’ Employment and Training Service (“VETS”) replaced the VETS-100A form with a new VETS-4212 form. The new form requires federal contractors to report aggregate data on the number of protected veterans that were newly hired and the number they employed. This is different from the previous requirement that contractors report the data by the number of veterans in each of the individual categories for protected veterans. The FAQ addressed whether contractors needed to continue to invite applicants to self-identify using the individual categories at the post-offer stage.
The OFCCP indicates that the VEVRAA requirement, outlined in 41 C.F.R. § 60-300.42(b), mandates that contractors invite post-offer self-identification as a protected veteran. Notably, the requirement is specifically linked to the scope of the VETS reporting requirement. Accordingly, since 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.
With this in mind, the second FAQ addresses whether contractors may, if they wish, continue to ask individuals to self-identify by individual category, even though the new VETS-4212 form asks only for aggregate protected veteran data. The OFCCP confirmed that contractors may choose to continue to use the individual categories, but they are not required to do so.
From a practical standpoint, if you have already incurred significant expense to ensure your systems ask the post-offer veteran question by individual category, you may not want to revise it again. On the other hand, any time the OFCCP grants a contractor permission to seek less data than originally contemplated, we recommend doing so.
Clearly, the rules associated with your affirmative action compliance continue to evolve. We will monitor and report developments as they occur.