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On April 25, 2011, the OFCCP issued its much awaited Notice of Proposed Rulemaking (NPRM) regarding affirmative action and nondiscrimination obligations of federal contractors and subcontractors regarding protected veterans. (The NPRM may be found at http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/html/2011-8693.htm.) With this NPRM, the OFCCP is proposing to amend its regulations under the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA). The OFCCP proposes to amend 41 C.F.R. Part 60-300 and rescind 41 C.F.R. Part 60-250. Amending these regulations has been a goal of the OFCCP for several months, and the Agency explains that the reason for amending these regulations is to address the "substantial obstacles in finding employment" for the large number of veterans who are returning from military duty. With these amended regulations, the OFCCP hopes to increase employment opportunities for protected veterans.
Definition of Protected Veteran
The definition of protected veteran has been modified over the years. With this proposal the OFCCP intends to maintain four protected veteran categories: disabled veteran, recently separated veteran, Armed Forces service medal veteran and active duty wartime or campaign badge veteran. The last category will replace the "other veteran" category currently used. The OFCCP has indicated that it will work with the Veterans' Employment and Training Service to modify the VETS 100 form to reflect these new definitions.
Notices to Employees and Applicants
The proposed regulations would also require contractors to post notices which inform employees and applicants of their rights and of the contractors' obligations to affirmatively employ protected veterans. The OFCCP would require that this notice be provided in the format which is accessible and understandable to disabled veterans, such as in Braille, large print versions or posting the notice to be accessible for persons in wheelchairs. For employees who do not work at a physical location of the contractor, this notice could be posted in electronic format. For contractors which utilize an electronic application process, the notice would also be posted electronically for applicants to review.
The proposed regulations would modify the job vacancy posting requirement. Federal contractors would be required to post all vacancies with the "appropriate employment service delivery system where the opening occurs." When posting such vacancies, the contractor would provide information about the vacancy "in the manner and format required" by the employment service delivery system. With this requirement, contractors must determine the requirements of each state in which they post jobs and follow such requirements; in addition, contractors must ensure that the privately run job services/exchanges which may be used to post jobs also adhere to the states' requirements. The posting obligation would still be triggered whenever the contractor uses any other external recruitment source or effort to attract applicants.
A new recordkeeping requirement is being proposed: contractors would notify the employment service delivery system that (1) the facility is a federal contractor and (2) the facility "desires priority referrals from the state of protected veterans for job openings at all locations within the state." Contractors would also provide a contact name for each hiring location within the state. If the contractor uses an external job search organization, it would also provide the external source's contact information to the employment service delivery system. These mandatory disclosures must be updated annually with the employment service delivery system.
Invitation to Self-Identify
Contractors would see significant changes to the manner in which they must invite persons to self-identify as a protected veteran. Under the proposed regulations, contractors would be required to invite applicants to inform the contractor whether the applicant is a protected veteran. This invitation would be issued prior to making an offer of employment to the applicant. This pre-offer invitation would not ask the applicant to identify any specific protected veteran category, such as disabled veteran, recently separated veteran, and the like. The OFCCP intends to use the pre-offer data to measure the effectiveness of the contractor's recruitment and affirmative action efforts with respect to veterans.
Contractors would still be required to extend a post-offer invitation to determine protected veteran status (after an offer of employment has been extended but before the applicant actually begins working on the job). With this post-offer form, the veteran is asked to disclose the specific veteran category. If the post-offer form identifies the person as a disabled veteran, the proposed regulations seek to require contractors to ask whether an accommodation is necessary in the performance of the job, and if so, begin the interactive process with respect to identifying a reasonable accommodation.
As VEVRAA protects disabled veterans, the OFCCP regulations contain language similar to the Americans with Disabilities Act (ADA), such as "essential function" and "reasonable accommodation." The proposed regulations would maintain the reasonable accommodation requirement which is similar to the ADA. However, if the contractor asserts that an accommodation would be an undue hardship, the contractor must allow the disabled veteran the opportunity to provide his own reasonable accommodation or to pay for the accommodation himself.
Affirmative Action Plan Contents
Contractors will be required to post an equal employment opportunity policy statement on company bulletin boards and provide this notice in a form which is accessible and understandable to a disabled veteran. This policy statement shall indicate the chief executive officer's support for the affirmative action program, as well as contain other required language.
Contractors shall also establish and review its personnel processes to ensure that they provide for "careful, thorough, and systematic consideration of the job qualifications of applicants and employees who are known protected veterans." At a minimum, the procedures shall include the following steps: (1) for each applicant who is a protected veteran, the contractor must identify each vacancy and training program for which the applicant was considered; (2) for each employee who is a protected veteran, the contractor must be able to identify each promotion and training program for which the veteran was considered; (3) for each protected veteran who is rejected for employment, promotion or training (whether applicant or employee), the contractor must prepare a statement of the reason for the rejection and a description of the accommodations considered if the veteran is classified as a disabled veteran; and (4) identify any accommodation which makes it possible to place a disabled veteran in a job (whether a hiring, promotion or training decision).
Dissemination of Policy
The proposed regulations dictate stringent internal dissemination of the affirmative action obligations. For instance, the contractor will be required to develop internal procedures for communicating its affirmative action efforts and obligations to supervisory and management personnel, and must inform all employees and prospective employees of its commitment to engage in affirmative action to employ qualified protected veterans. These requirements are in addition to the separate notice obligation discussed above.
Federal contractors are required to include an equal opportunity (EO) clause in each contract and subcontract. Many contractors fulfill this obligation by incorporating by reference the regulatory citation for the EO clause within each contract and subcontract. Under the proposed regulations, the EO clause must be included within each contract and subcontract in its entirety.
Required Outreach Efforts
One of the most significant changes proposed is the requirement that the federal contractor undertake outreach and positive recruitment efforts to hire qualified protected veterans. The proposed regulations identify specific efforts including that the contractor establish "linkage agreements" with local veterans employment representatives within the local employment service office and other sources identified in the proposed regulations. The proposed regulations would also require a contractor to conduct a review of its recruitment efforts on an annual basis. This review must be documented and must include the criteria used to evaluate the effectiveness of the contractor's efforts and the contractor's conclusions as to whether its efforts were effective. If the contractor's efforts were not effective, it must then identify alternative efforts. All documentation reflecting the contractor's outreach efforts must be maintained for a period of five years.
Data Collection Analysis
The proposed regulations would establish a new requirement regarding the collection and maintenance of applicant and hire data. On an annual basis, the contractor would document, analyze and maintain: (1) the number of priority referrals of veterans and the total referrals received from employment service delivery systems; the ratio of priority referrals of veterans to total referrals; (2) the total number of job openings and total number of jobs filled; the ratio of jobs filled to job openings; (3) the number of applicants who self-identified as protected veterans or who the contractor otherwise knows is a protected veteran; the total number of applicants for all jobs; the ratio of protected veteran applicants to all applicants; (4) the number of protected veteran applicants who were hired; the total number of applicants hired; and the ratio of protected veterans hired to all hires. The proposed regulations are silent on many issues with respect to this requirement: what will the OFCCP do with this data; is this data analyzed per job title or per job group; is the "internet applicant" definition applicable for these veteran applicants; does this analysis include only external hires or does it also include promotions/transfers?
Goals or Benchmarks
The proposed regulations do not implement predetermined goals or benchmarks as to protected veterans. However, the proposed regulations would require federal contractors to establish on an annual basis "hiring benchmarks" which are the percentage of total protected veteran hires that the contractor will seek to hire in the next 12 months. To establish the benchmarks, the proposed regulations provide factors the contractor may consider. The benchmarks shall be documented each year along with supporting information and factors used to determine the benchmarks. This documentation must be maintained for a period of five years.
Employers' Bottom Line
The above information reflects only several of the most significant requirements proposed in the NPRM. With these proposed regulations, the OFCCP invites the contractor community to submit comments. Comments on the proposed regulations must be received on or before June 27, 2011, and they may be submitted electronically, via facsimile or regular mail.
If you have any questions regarding the NPRM or federal contractors' affirmative action obligations, please contact the author of this Alert, Karen Tyner, a partner in our Spartanburg office at email@example.com, any member of Ford & Harrison's Affirmative Action Compliance and Plan Development practice group, or the Ford & Harrison attorney with whom you usually work.