Contact: Spencer Fane Britt & Browne LLP (Missouri, USA)
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently announced a Final Rule that makes changes to the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). VEVRAA prohibits federal contractors and subcontractors (“contractors”) from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans. The OFFCP's position is that the Final Rule strengthens the affirmative action provisions of the regulation to aid contractors in recruiting, hiring and improving job opportunities for protected veterans.
The Final Rule will be published in the Federal Register in the near future and is effective 180 days after its publication. Given the number of additional obligations set forth in the Final Rule, however, contractors must resist the temptation to put this matter at the bottom of their “to do” list and should begin planning now. To assist in this analysis (or at least scare contractors silly), the OFCCP has published a comprehensive comparison of the Existing Rule and the Final Rule, which is available here.
After analyzing the Final Rule, taking a deep breath and resisting the temptation to proclaim “the sky is falling,” the following appear to be the most significant changes:
• Hiring Benchmarks: Requires contractors to establish annual “hiring benchmarks” for protected veterans. Contractors may use one of two methods to establish their benchmarks: (1) choose a benchmark equal to the national percentage of veterans in the civilian labor force (currently 8%), which will be published and updated annually by OFCCP; or (2) establish their own benchmarks using certain data from the Bureau of Labor Statics (“BLS”) and Veterans’ Employment and Training Service/Employment and Training Administration (“VETS/ETA”) which will also be published by the OFCCP.
[Compare with current regulation: Contractors are not currently required to establish any type of numerical “hiring benchmarks” or goals for veterans. Rather, contractors are required only to pledge to take certain affirmative steps to attract and hire veterans and to keep track of these outreach efforts. The written Affirmative Action Plan (AAP ) for Veterans currently consists only of a narrative section and does not include data reports (as is currently required for female and minority AAPs).]
• Data Collection: Requires contractors to document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire.
[Compare: Contractors are not currently required to track the number of veterans who apply for jobs or the number of veterans they hire (as is currently required for female and minority AAPs).]
• Invitation to Self-Identify: Requires contractors to invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process.
[Compare: Contractors are currently required only to provide voluntary self-id forms regarding veteran status POST-OFFER and voluntary self-id forms regarding gender and race PRE-OFFER. Under the Final Rule, contractors are required to inquire about all applicants’ veteran status PRE-OFFER so they will have actual data regarding the number of veterans who applied and/or were hired. The OFCCP has indicated that “model invitations” for applicants to self- identify their veteran status will be “coming soon” to its website.”]
• Incorporation of the Equal Opportunity Clause in Subcontracts: Requires contractors to use specific, mandatory language incorporating the equal opportunity clause in the regulation into a subcontract by reference. Specifically, the following language in bold print must be included in subcontracts: “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.”
[Compare: Contractors now may incorporate the Equal Opportunity clause by merely referencing the legal citation to the regulation.]
• Incorporation of the Equal Opportunity Clause in Solicitations or Advertisements: Contractors must state they are an equal employment opportunity employer of protected veterans in solicitations and advertisements.
[Compare: Contractors do not currently have this obligation.]
Spencer Fane will continue to keep contractors posted as other developments occur with regard to the Final VEVRAA Rule. The OFCCP also adopted revised regulations relating to Section 503 of the Rehabilitation Act which requires contractors to take affirmative action with regard to individuals with disabilities. The firm will be providing additional information and their analysis of the Final 503 Rule in the near future.
