Welcome back to our blog series on self-identification compliance requirements and “best practices.” In this third and final installment of the blog series, we discuss OFCCP’s rules requiring self-identification pursuant to Section 503, as well as recordkeeping requirements and some “best practices” tips many covered government contractors choose to undertake to encourage applicants and employees to self-identify.
Section 503 of The Rehabilitation Act of 1973
Section 503 requires covered federal government contractors with 50 or more employees to obtain voluntary self-identification information regarding disabilities at three stages:
- Pre-Offer: At the pre-offer stage (i.e., which may be at the same time as the contractor extends to applicants its invitation to self-ID race/ethnicity/gender/protected veteran status), contractors must invite individuals who meet the definition of an “applicant” to inform the contractor whether the applicant believes that s/he is an “Individual with a Disability” (IWD) as defined in 41 CFR 60-741.2(g)(1)(i) or (ii). The contractor must provide this invitation to each person who qualifies as an applicant at some point before any interview the company may undertake. The contractor may include the invitation with the application materials for a position, but it must be separate from the application (i.e., a “tear-away” sheet if you are relying upon paper applications) so hiring personnel do not become aware an applicant is disabled.
- Post-Offer: Any time after the offer of employment, but before the individual begins his or her job duties, the contractor must also invite the new hire to inform the contractor whether the individual believes that he or she is an IWD as defined in 41 CFR 60-741.2(g)(1)(i) or (ii).
- During Employment: Contractors must also invite each of their employees to voluntarily inform the contractor whether the employee believes that s/he is an IWD as OFCCP Rules at 41 CFR 60-741.2(g)(1)(i) or (ii) implementing Section 503 define that complex term. The contractor must extend this invitation:
- The first year the contractor becomes subject to Section 503’s requirements; and
- At five-year intervals, using the language and manner prescribed by the Director and published on the OFCCP website. (i.e., OFCCP’s mandatory Section 503 self-id form discussed below); and
- At least once during the intervening years between the first year the contractor becomes subject to Section 503’s requirements and the first fifth-year invitations, the contractor must also “remind” its employees that they may voluntarily update their disability status. NOTE: It appears that OFCCP’s intent is to require the “tweener” reminder not just during the first five-year period the contractor is subject to Section 503, but as a “tweener” in every five-year period which occurs after the first five-year period. In other words, OFCCP requires an “invitation” to self-identify every five years and a” tweener” reminder sometime during each rolling five-year period.
Contractors must also keep a separate and confidential file to house the completed self-identification forms (known as a “Data Analysis File”) and provide the DAF to OFCCP upon request.
Contractors must use an OMB-approved “Voluntary Self-Identification of Disability Form” (Form CC-305) when inviting applicants and employees to self-identify. On May 5, 2020, OFCCP received OMB approval for the use of a revised self-identification form, which you may find HERE. OFCCP believes the new more streamlined form “will increase the response rate of applicants and employees who choose to voluntarily self-identify their disability status,” which will “aid contractors in developing programs to increase the utilization of people with disabilities.” (Under Section 503, federal contractors and subcontractors with a contract of at least $50,000 and 50 employees aspire to meet an annual 7% utilization goal for individuals with disabilities.)
Recognizing that contractors and subcontractors may need some time to incorporate the updated form into their electronic systems, OFCCP has given contractors until August 4, 2020, to switch over to the new form. Until then, contractors and subcontractors may continue to use the old form, which can be found HERE, if they wish to do so.
While contractors must use the CC-305 form, OFCCP has recently backed away from its position that contractors cannot make any changes to the form. OFCCP now allows contractors to make non-substantive changes to the form as needed to conform to company branding and computer layout limitations. OFCCP also encourages contractors to add statements to the form regarding the company’s commitment to disability compliance to bolster self-identification response rates.
According to OFCCP: “Through the invitation and reminder to employees to self‐identify, contractors can capture data on employees who become disabled while employed, as well as those with existing disabilities who may feel more comfortable self‐identifying once they have been employed for some time. It also allows contractors to monitor and improve their practices regarding placement, retention, and promotion.”
Record Retention
Pursuant to 41 CFR 60-1.12(a), the contractor must preserve any personnel or employment record the contractor “made or kept” (including self-identification forms) for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later.
Contractors subject to Section 503 (and VEVRAA) must, however, retain Section 503 (and VEVRAA) self-identification forms for three years pursuant to 41 CFR § 60-300.44(k) and 41 CFR § 60-741.44(k), respectively.
Encouraging Self-Identification
Because self-identification is voluntary, many contractors find that only a very small portion of their applicants and employees choose to self-identify (typically 3% to 10%, although the range varies dramatically with geographic locations within the U.S., the company in question and the type of language the company uses in its recruiting advertisements). Without complete self-identification information, contractors will not only have difficulty assessing their progress towards achieving their diversity and inclusion goals (“Good Faith Efforts” pursuant to EO 11246 (although the OFCCP has repeatedly acknowledged “Good Faith Efforts” should be “removed from a contractor’s vocabulary”) and “Data Metrics” pursuant to VEVRAA and Section 503), but the statistical “Disparity Analyses” (see 41 CFR section 60-2.17(b)) contractors are required to conduct at least once a year will not be a true reflection of the demographic makeup of the company’s applicant pool and workforce, particularly in instances where visual observation may not be revealing (i.e., veterans and disabilities).
Perhaps the most important step contractors may take to encourage applicants and employees to complete voluntary self-identification forms is to explain why the contractor is asking the applicant or employee to provide self-identification information and to render assurance that the employer is not going to use the information to ferret out individuals like him or her. Contractors should explain not only that they have a legal obligation to ask for the information, but also that they are requesting the information to measure their goals towards achieving equal opportunity and diversity. Contractors should also inform employees that the self-identification information it collects is confidential and will not be shared with supervisors, that it will not be included in their personnel file, or have any effect on their employment. Additionally, contractors attracting candidates and employees who do not read English should be sure to provide those individuals with a copy of each self-identification form in their native language. OFCCP’s Section 503 self-identification form is offered in nine languages on its website.
Individuals with disabilities may be the least likely to self-identify for fear they may be stigmatized or treated differently. To address this concern, some contractors have implemented Section 503 self-identification campaigns to encourage employees with disabilities to self-identify. Campaign efforts might include:
- Publishing FAQs for employees to explain in detail why the information is collected and how it is used
- Assuring employees that they do not have to disclose details or provide medical documentation regarding their disability when completing the self-identification form
- Creating a catchy slogan
- Recruiting respected employees to be the “face” of the campaign in magazines and company photos/website images
- Providing information about the Americans with Disabilities Act’s definition of “disability” (many employees are not aware of how expansive the definition is and, therefore, may not consider themselves to be disabled)
- Providing disability awareness and inclusion training to managers and supervisors
- Ensuring your organization’s culture is a welcoming environment for individuals with disabilities so they will feel comfortable self-identifying as an individual with a disability
- Posting videos on the company’s website and/or intranet encouraging self-identification. OFCCP has created a “Disability Inclusion Starts With You” video HERE employers may use instead of creating their own.
Contractors may use several of these campaign strategies to encourage employees and applicants to also provide race/ethnicity, gender, and veteran self-identification information.
Be creative, and good luck!
