05.12.2015 OFCCP Clarifies Invitation to Self-Identify and Protected Veterans Reporting Requirements – New VETS-4212 Form By: Lynn F. Jacob

The Department of Labor’s Veterans’ Employment and Training Service (VETS) has issued its Final Rule revising its regulations implementing reporting requirements under the Vietnam-Era Veterans Readjustment Assistance Act of 1974, as amended (VEVRAA).  Generally, VEVRAA requires Federal contractors and subcontractors with contracts of $100,000 or more to annually report the total number of their employees who belong to the categories of veterans protected under VEVRAA and the total number of those protected veterans who were hired during the period covered by the report on either a VETS 100 or VETS 100A form.  The VETS Final Rule rescinds certain of the reporting requirements because they are obsolete and, for the reporting periods beginning August 1, 2014, renames the annual report required under these regulations as the Federal Contractor Veterans’ Employment Report VETS-4212.  It also revises the definitions of terms used in the regulations, the text of the reporting requirements clause included in Government contracts and subcontracts, and the methods of filing the Form VETS-4212.

While covered employers had a 90-day window in which to file the VETS 100 and 100A, Form VETS- 4212 provides a 60-day window from August 1 through September 30, and requires federal contractors and subcontractors to report aggregate data on the number of protected veterans that were newly hired and the number they employed.  It does not require that contractors report the data by the number of veterans in each of the individual categories for protected veterans.  For purposes of Form VETS-4212, protected veterans include the following categories of veterans:  disabled veterans, active duty wartime or campaign badge veterans, Armed Forces service medal veterans, and recently separated veterans.  The aggregated numbers are intended to present a more accurate record of veteran employment, since previously veterans could be double-counted in more than one individual category.  Form VETS-4212 simplifies the reporting requirements for employers.

The OFCCP’s final regulations addressing affirmative action requirements under VEVRAA became effective March 24, 2014.  Among other things, they require federal contractors to solicit the veteran category data the contractor is required by VETS to report.  Specifically, and in part to obtain the information required for the VETS reporting requirements, contractors were required to invite applicants to voluntarily self-identify as a protected veteran at both the pre-offer and post-offer stages of the hiring process.  At the pre-offer stage, employers were not required to invite applicants to identify the specific protected veteran category to which they belong; however, they were required to invite post-offer applicants to identify to which specific protected veterans category they belonged.  Employers began using two versions of the voluntary request to self-identify; the limited form on the application and the form identifying the type of protected veteran at the post-offer stage of the process.

Because the OFCCP self-identification requirements are specifically linked to the scope of the VETS reporting requirements and the Form VETS-4212 requires that contractors report only the aggregate data on the number of protected veterans that were newly hired and the number of protected veterans they employ, the OFCCP has now amended its Frequently Asked Questions on the VEVRAA regulations to provide that contractors are no longer required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirements.  Contractors now have a choice.  They can continue to use the post-offer invitation to self-identify that invites the applicant to voluntarily self-identify the specific category or categories of protected veteran to which they belong at the post-offer stage, or they can use the same form that they use during the application process, which merely invites the applicant to voluntarily self-identify as a protected veteran.

Federal contractors and subcontractors can now revise their showing of interest (applicant flow) chart to delete references to each category of protected veteran and retain only the protected veteran field.