One of the most important set of changes in the revised regulations are the changes regarding surveying. There are major revisions that federal contractors and subcontractors must make to the way they survey applicants and employees for information on veteran and disability status. While companies may make these changes on or after March 24, 2014, they MUST make some of these changes no later than the date that AAPs are next updated.
Subparts Within the Revised Regulations
It is worthwhile to take a moment to review the structure of the revised regulations. The revised regulations for protected veterans and for individuals with disabilities are each divided into five major parts.
- Subpart A contains the equal opportunity clause that has certain provisions that were to have been implemented by March 24, 2014.
- Subpart B contains information on discrimination and certain actions that are prohibited under the regulations. Subpart B also contains a few provisions that were to have been implemented by March 24.
- Subpart C contains provisions regarding a company’s affirmative action program. Subpart C includes the data metrics, surveying requirements, and many of the other provisions that are of greatest concern to federal contractors and subcontractors. These are the provisions that need to be implemented at the time that a company’s affirmative action plans are next updated.
- Subpart D contains information on enforcement of the regulations and on complaint procedures.
- Subpart E contains various ancillary matters including information on record-keeping and OFCCP’s right to access records.
Surveying Requirements for New Employees
Federal contractors and subcontractors have been required to survey new employees regarding veteran and disability status for some time. This requirement did not change with the revised regulations. However, there are a number of new requirements regarding the surveying of employees. These new requirements come into effect on the date when a company’s affirmative action plans are scheduled to be updated. Thus, if a company has affirmative action plans that begin on January 1, the requirements in the revised regulations regarding the surveying of new employees must be implemented no later than January 1, 2015.
- Veteran Survey
The revised regulations make it clear that companies should survey for each of the current protected veteran classifications. The protected veteran classifications found in the revised regulations are as follows:
- Disabled veteran
- Recently separated veteran (i.e. an individual within three years of separation from military service)
- Armed forces service medal veteran
- Active wartime or campaign badge veteran
Companies are no longer required to specifically survey for Vietnam era veteran status or special disabled veteran status. “Disabled veteran” has basically taken the place of “special disabled veteran,” and there is no longer any special coverage for Vietnam era veterans per se.
While most survey questions about veteran status should be “yes” or “no” questions, any question about recently separated veteran status should ask for a date of separation. Each veteran will reach a point where they are more than three years from their date of separation from service. At that time, they should no longer be shown in any reporting as a recently separated veteran.
- Disability Survey
- Display the OMB number and expiration date;
- Contain the text of the form without alteration;
- Use a sans-serif font, such as Calibri or Arial; and
- Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).
- Survey Timing
Surveying Requirements for Applicants
While federal contractors and subcontractors have been required to survey applicants for race/ethnicity and gender for some time, there was no requirement to survey applicants regarding veteran or disability status until the revised regulations came into effect. Companies will now be required to begin surveying applicants for veteran and disability status no later than the date that a company’s AAPs are next scheduled to be updated. To return to our example above, if a company has affirmative action plans that begin on January 1st, the requirements regarding the surveying of applicants must be implemented no later than January 1, 2015.
- Veterans Survey
- Disability Survey
As is the case with the survey for new employees, federal contractors and subcontractors MUST use the form developed by OFCCP to survey applicants for disability status. Again, the form CANNOT be modified in any significant way. Companies can collect disability information on applicants electronically, but the requirements noted above in regard to any electronic use of the form must be followed here as well.
- Survey Timing
Re-Survey of the Entire Workforce
Along with surveying applicants and new employees, there is an additional survey requirement under the revised regulations. During the first year after a company’s affirmative action plans are updated, the company must conduct a re-survey of its entire workforce to gather information on disability status. To continue with the example we have been using, this means that a company with January 1 affirmative action plans must re-survey the entire workforce sometime before December 31, 2015. A company with July 1 affirmative action plans must re-survey the entire workforce sometime before June 30, 2015.
There are several important features to this re-survey of the workforce. First, OFCCP is only requiring a re-survey of the workforce for disability status. Companies are not required to re-survey for veteran status or other demographic information. Second, companies MUST once again use OFCCP’s prescribed survey form to gather information on disability. While companies are allowed to include introductory or explanatory materials with the survey, the survey form must be used in its entirety. If the survey is conducted electronically, the provisions noted above once again hold.
After this first re-survey of the workforce, companies are required to conduct a re-survey of the workforce for disability status at least once every five years. At least once in the intervening years, employees must receive a formal reminder that they are allowed to update information on their disability status in the company’s HR systems.
Preparing for the New Survey Requirements
What kinds of things should federal contractors and subcontractors be doing to prepare for all the new surveying required by the revised regulations? We have the following suggestions.
- Develop a time line. While the requirements in the revised regulations regarding new employees and applicants may be implemented at any time, they MUST be implemented by the date that a company’s AAPs are to be updated. Companies should determine a time line for implementation of the steps that will allow them to meet the new requirements.
- Determine the steps required to implement the new requirements. Companies will need to update applicant and employee survey forms and find a way to integrate OFCCP’s disability survey into their processes.
- Coordinate with persons responsible for HR information systems and applicant tracking systems. HR information systems and applicant tracking systems will need to be able to accept data from revised survey forms and will need to be able to report on this data. If companies will be using an electronic survey to collect demographic data, systems need to be updated with OFCCP’s disability survey.
- Provide information to employees and applicants about the new surveys. Employees should be made aware of the reason for the re-survey of the workforce when this occurs. Applicants and new employees should be made aware of the reasons that the company is asking for information about disability status and the remaining demographic information that companies are required to collect.
- Consider conducting a more complete demographic re-survey of the entire workforce. Rather than simply surveying for disability status, companies should consider surveying for other demographic information as well. There are companies that currently have inaccurate information on the veteran and disability status of employees, and some companies have inaccurate information on race, ethnicity, and other types of demographic information. A more comprehensive re-survey of the workforce diminishes the focus on the request for disability information and may provide the company with more accurate information in a variety of areas.
For more information on OFCCP’s revised regulations regarding protected veterans and individuals with disabilities, please contact Bill Osterndorf at firstname.lastname@example.org.