WOTC Questions: Is it legal to ask the WOTC questions to a new-hire?

At CMS, as Work Opportunity Tax Credit “WOTC” subject matter experts and service providers since 1997, we receive a lot of questions via our website and through the webcasts we attend. This week’s WOTC Question comes from one of our recent webinars:

Is it legal to ask these questions to a new-hire?

CMS says: Some job seekers can be concerned about having to answer the personal questions on the Individual Characteristics Form, however, you are legally permitted to ask. The Department of Labor website states:

The U.S. Equal Employment Opportunity Commission (EEOC) has issued letters from 1996 through 2010 with specific language that explains how all WOTC participating employers have a “Federal laws defense.” This means they are protected from EEOC violations when making the inquiries necessary to hire members of the targeted groups under the WOTC program. However, they may not use the information gained for purposes other than the WOTC application.

The EEOC letters issued have asserted that the WOTC program offers members of the target groups certain benefits – namely, employment opportunity and work experience to develop job skills. Further, the EEOC has determined that the inquiries needed to ascertain each new hire’s individual characteristics do not pertain to any of the protected groups, so employers are not violating equal opportunity standards or laws. For example, employers are asking about vocational rehabilitation services, but not whether applicants have disabilities, when they are obtaining information on the Individual Characteristics Form (ICF).

Additionally, the information is being secured for federally-approved forms for WOTC program use only. The only way an employer can request a certification to qualify for the tax credit to which they are entitled is by using those forms. Therefore, any employer participating in the WOTC program is protected under EEOC regulations and provisions against any discriminatory claims or lawsuits for asking the Congressionally-mandated questions on WOTC screening and application forms.

Additional Reading: ADA, Title VII, & ADEA: Work Opportunity Tax Credit, IRS Form 8850 (EEOC Letters Website)

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