August 2, 2021

Volume XI, Number 214

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OFCCP and VETS Settle Controversy over Soliciting Recently Separated Veteran Information: Finally, Some Good News

After continuing uncertainty about how employers should track Recently Separated Veterans, we have learned OFCCP and VETS agreed this week that employers’ post-offer self-identification forms need only solicit whether the new employee is or is not a Protected Veteran.

The uncertainty around collecting more specific information about Recently Separated Veterans arose when OFCCP issued an FAQ earlier this year stating that, in light of the new reporting requirements associated with the VETS-4212 form, employers were not required to solicit the specific type of Protected Veteran post-offer. Rather, employers could simply ask individuals to fall into any of the Protected Veteran categories.

Following this, many employers expressed concerns about how to properly track Recently Separated Veterans, defined as “discharged or released from active duty within the last three years” for VETS-4212 Reporting. Because the Recently Separated Veteran category is tied to a defined period of time following discharge, many employers asked for date of separation and if the employee belonged to protected veteran categories other than Recently Separated to determine when, and if, the employee would need to be removed from the list of protected veterans at some point in the future.

This week OFCCP and VETS confirmed – employers do not need to (1) ask these additional questions or (2) track when and how to move employees from Recently Separated Veterans status in their systems. Like the veteran pre-offer (applicant) form, the post-offer self-identification form need only provide “yes/no/decline to answer” options as to whether the new employee is a Protected Veteran.

From an administrative standpoint, this allows employers to streamline their veteran self-identification forms, utilizing the same form both pre- and post-offer (just like with race/ethnicity, gender and disability) and eliminates the need to track whether an employee no longer qualifies as protected due to discharge date. This will be much easier to administer from a systems perspective since employers will no longer need to manually track and make changes in HRIS systems to protected veteran status on an individual employee level.

OFCCP and VETS have stated that they will not issue any formal announcements or additional FAQs on this issue as they feel the OFCCP’s previously-provided FAQ is consistent with, and sufficiently addresses this decision.

Jackson Lewis P.C. © 2021National Law Review, Volume V, Number 162
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About this Author

Mickey Silberman, Labor and Employment law attorney, Jackson Lewis Law firm, Principal
Principal

Mickey Silberman is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. He is the Chair of the Jackson Lewis Affirmative Action & OFCCP Defense Practice Group and the Co-head of the firm’s Pay Equity Resource Group.

Mr. Silberman and the practice group annually prepare thousands of affirmative action plans for employers in all industries and throughout the country. During the past several years, Mr. Silberman has directed the defense of hundreds of OFCCP audits, including successful defense of Corporate Management (“glass ceiling”) Reviews....

303-225-2400
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