The existing VEVRAA regulations
are split into two separate parts: 41 CFR part 60–250 (part 60–250) and 41 CFR
part 60–300 (part 60–300). Part 60–250 applies to any Government contract or
subcontract of $25,000 or more entered into before December 1, 2003. The threshold amount for coverage
is a single contract of $25,000. Yesterday’s revisions to the VEVRAA regulations rescind
the regulations at part 60–250, except that it retains protection for veterans
who were covered by that regulation. Part 60–300 applies to any Government contract
or subcontract of $100,000 or more entered into on or after December 1, 2003. The amount for VEVRAA and AAP
threshold coverage is a single contract of $100,000 or more. Federal contractors and subcontractors which
meet that coverage threshold and have 50 or more employees must develop a
written AAP.
Hiring and Utilization Benchmarks.
One of the most significant changes is that contractors will now be
required to annually establish a hiring “benchmark.” A benchmark is a lesser standard than the “goal”
used in 11246 plans for minorities and women.
Contractors will have the option of calculating their own benchmark from
a variety of information sources, or using the benchmark published on the OFCCP’s
website (which is currently at 8%). OFCCP recognizes that precise and statistically
meaningful data demonstrating the availability of protected veterans which is
similar to the information used to calculate the availability and establish
goals for women and minority under the EO 11246 program does not exist. Accordingly,
contractors “will not be cited for violations solely for failing to meet the
benchmarks they set.”
Contractors will not be
subject to an enforcement action or found to be in violation of the VEVRAA regulations
for failing to meet the benchmark. Hiring preferences are not required, the
rule does not state that contractors will be expected to achieve benchmarks,
and the VEVRAA rule does not prescribe actions the contractor must take if the
benchmark is not achieved.
The
hiring benchmarks may be calculated under the new regulation by taking into
account the following factors:
(i) The average percentage of veterans in the
civilian labor force in the State(s) where the contractor is located over the preceding
three years, as calculated by the Bureau of Labor Statistics and published on
the OFCCP Web site;
(ii)
The number of veterans, over the previous four quarters, who were participants
in the employment service delivery system in the State where the contractor is
located, as tabulated by the Veterans’
Employment and Training Service and published on the OFCCP Web site;
(iii)
The applicant ratio and hiring ratio for the previous year, based on the data
collected pursuant to § 60– 300.44(k);
(iv)
The contractor’s recent assessments of the effectiveness of its external
outreach and recruitment efforts, as set forth in § 60–300.44(f)(3); and
(v)
Any other factors, including but not limited to the nature of the contractor’s
job openings and/or its location, which would tend to affect the availability
of qualified protected veterans.
Self-identification.
Another one of the next most significant changes is that contractors
will now be required to invite employees and
applicants to voluntarily self-identify their “protected veteran status.”
The invitation should be extended at the same time that applicants are invited
to self-identify as women or minorities.
In addition, as is currently required, contractors which are required to
file a VETS-100A form must again invite candidates to self-identify after a job
offer has been extended, but the post-offer invitation will require more
specification about the type(s) of protected veteran the employee is. As with other affirmative action
self-identification solicitations, responding is purely voluntary and the
information must be kept confidential. Sample self-identification forms are
included in Appendix B to the regulations.
Once
this data is collected, the contractor will be expected to analyze it during an
annual audit to determine the
effectiveness of its affirmative action program, recruitment and outreach
efforts:
The contractor shall document
each evaluation, including at a minimum the criteria it used to evaluate the
effectiveness of each effort and the contractor’s conclusion as to whether each
effort was effective. Among these criteria shall be the data collected pursuant
to paragraph (k) of this section for the current year and the two most recent
previous years.
In the
past, contractors have been required to make the entire AAP for disabled and
veterans available for inspection upon request to applicants and employees,
unlike the 11246 plans. However, now
that employers will be required to analyze utilization goals, critique their
efforts and utilize other metrics which may involve confidential employee data,
the new regulation permits employers to withhold those portions of the AAP
which includes “the data
metrics required by § 60–300.44(k)” [the analysis of the self-identification
data].
Job listings. It has long been a statutory
requirement that covered contractors list all job openings [except for
executive and senior management, jobs filled with only internal candidates and
jobs lasting three days or less] with “the appropriate employment service
delivery system’’ (ESDS). The new
regulations require such listings to be
made ‘‘in a
manner
and format permitted by” the ESDS. Moreover, contractors will now be required to
notify the ESDS that it is a covered federal contractor:
it shall advise the [ESDS] in
each state where it has establishments that: (a) It is a Federal contractor, so
that the employment service delivery systems are able to identify them as such;
and (b) it desires priority referrals from the state of protected veterans for
job openings at all locations within the state. The contractor shall also
provide to the employment service delivery system the name and location of each
hiring location within the state and the contact information for the contractor
official responsible for hiring at each location. The ‘‘contractor official’’
may be a chief hiring official, a Human Resources contact, a senior management
contact, or any other manager for the contractor that can verify the information set forth in the job listing an receive
priority referrals from employment service delivery systems. . . . The
disclosures required by this paragraph shall be made simultaneously with the
contractor’s first job listing at each employment service delivery system
location after the effective date of this final rule. Should any of the information in the disclosures
change since it was last reported to the [ESDS] location, the contractor shall
provide updated information simultaneously with its next job listing. . . . The
contractor may advise the employment service delivery system when it is no
longer bound by this contract clause.
Audit and Reporting Systems. Once this data is collected, the contractor will be expected to
analyze it during an annual audit to determine the effectiveness of its
affirmative action program and outreach efforts. In particular, the new regulation provides as
follows:
The contractor shall document
the following computations or comparisons pertaining to applicants and hires on
an annual basis and maintain them for a period of three (3) years:
(1) The number of applicants
who self-identified as protected veterans pursuant to § 60–300.42(a), or who
are otherwise known as protected veterans;
(2) The total number of job
openings and total number of jobs filled;
(3) The total number of
applicants for all jobs;
(4) The number of protected
veteran applicants hired; and
(5) The total number of
applicants hired.
In addition,
the contractor will be required to document the following auditing actions and
maintain those records for three years:
The contractor shall design
and implement an audit and reporting system that will:
(i)
Measure the
effectiveness of the contractor’s affirmative action program;
(ii)
Indicate any need
for remedial action;
(iii)
Determine the
degree to which the contractor’s objectives have been attained;
(iv)
Determine whether
known protected veterans have had the opportunity to participate in all company
sponsored educational, training, recreational and social activities;
(v)
Measure the
contractor’s compliance with the affirmative action program’s specific
obligations;
. . . .
Compliance Officers will not
be using the applicant and hiring data to conduct underutilization or impact
ratio analyses, as is the case under the Executive Order, and enforcement actions
will not be brought solely on the basis of statistical disparities between veterans
and non-veterans in this data.
Advertising and Solicitations.
Contractors will now be required to add the word, “protected veteran
status” to their EEO statement in job advertisements and solicitations. For instance, contractors now need to say: ‘‘all
qualified applicants will receive consideration for employment without regard
to race, color, religion, sex, disability, protected veteran status or national
origin.’’
Federal
contracts and subcontracts. Contractors will
be required to include the following clause – in bold typeface -- in all of their covered subcontracts and
purchase orders in excess of $100,000:
This contractor and subcontractor shall abide by the
requirements of 41 CFR 60–300.5(a). This regulation prohibits discrimination
against qualified protected veterans, and requires affirmative action by
covered prime contractors and subcontractors to employ and advance in
employment qualified protected veterans.’’
Record Retention.
The new regulations extend the document retention period to three years.
Internal dissemination of
affirmative action policy. The new rule also makes mandatory certain
actions to disseminate the policy among the workforce:
The contractor shall implement
and disseminate this policy internally as follows: (i) Include it in the
contractor’s policy manual or otherwise make the policy available to employees;
(ii) If the contractor is party to a collective bargaining agreement, it shall notify
union officials and/or employee representatives
to inform them of the contractor’s policy, and request their cooperation;
While these are the most salient
changes, the devil is in the details.
All covered contractors are recommended to read the new rule and
explanatory comment in detail.
NOTICE: This summary is designed
merely to inform and alert you of recent legal developments. It does not
constitute legal advice and does not apply to any particular situation because
different facts could lead to different results. Information here can change or
be amended without notice. Readers should not act upon this information without
legal advice. If you have any questions about anything you have read, you
should consult with or retain an employment attorney.
