Revisions to Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

Briefing on U.S. Department of Labor Final Rules on VEVVRA

As published 8/27/13

WHO MUST COMPLY?

These regulations require that covered contractors and subcontractors with

a Government contract or subcontract of $100,000 or more

AND 50 or more employees develop and maintain

a written VEVRAA affirmative action program.

IMPACT

OFCCP Estimates

– 171,275 Federal contractor establishments are impacted by this rule

– Costs of implementing and maintaining compliance with the final rule will likely exceed $100 million annually.

Affirmative Action Required

These revised regulations now require Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified protected veterans.

Hiring Benchmarks

Under these new rules, covered contractors and subcontractors will be required to establish hiring benchmarks on an annual basis.

– Purpose of establishing benchmarks is to create a quantifiable method by which contractor can measure its progress toward achieving equal employment opportunity for protected veterans.

– Hiring benchmarks (not quotas) must be set and documented each year using one of two mechanisms described below:

Benchmarking Options

Either establish a benchmark which equals the national percentage of veterans in the civilian labor force (currently ~8 percent), to be published and updated annually on the OFCCP website;

OR, Establish a benchmark by taking into account: 1. Average percentage of veterans in the civilian labor force in the State(s) where the contractor

is located over preceding three years, as calculated by Bureau of Labor Statistics and published on OFCCP website; (currently ~8 percent),

2. Number of veterans, over previous four quarters, who were participants in employment service delivery system in State where contractor is located, as tabulated by Veterans’ Employment and Training Service and published on OFCCP website;

3. Applicant ratio and hiring ratio for previous year, based on data collected in the establishment’s Affirmative Action Plan’s Audit and reporting system section

4. Contractor’s recent assessments of effectiveness of its external outreach and recruitment efforts, as set forth in its Affirmative Action Plan’s “assessment of external outreach and recruitment efforts section”, and

5. Any other factors, including but not limited to nature of contractor’s job openings and/or its location, which would tend to affect availability of qualified protected veterans.

Invitation to self-identify

Pre-offer. The contractor must invite applicants to inform the contractor whether the applicant believes that he or she is a protected veteran who may be covered by the Act. This invitation may be included in the application materials for the position, but in any circumstance shall be provided to applicants prior to making an offer of employment to a job applicant.

Post-offer. In addition to the Pre-offer invitation the contractor must invite applicants to inform the contractor whether the applicant believes that he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report.

Such an invitation shall be made at any time after the offer of employment but before the applicant begins his or her job duties.

Both Pre and Post Invitations must state that the contractor is a Federal contractor required to take affirmative action to employ and advance in employment protected veterans pursuant to the Act, summarize the relevant portions of the Act and the contractor’s affirmative action program.

Voluntary Self-Identification

VOLUNTARY means contractor may not compel or coerce an individual to self-identify.

The *invitations must state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the act. OFCCP provides a “Sample Invitation to Self-Identify in Appendix of the regulation (Click on link and go to Page 70)

Notification to Subcontractors, Vendors, and Suppliers

Contractors are required to send written notification to subcontractors, vendors, and suppliers of the company’s affirmative action policy.

The VEVRAA final rule also requires contractors to send written notification of the company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers. OFCCP therefore expects that contractors will send a single, combined notice, informing subcontractors, vendors and suppliers of their VEVRAA and section 503 policies.

Applicants

1. Contractors will be required to state in all solicitations and advertisements that they are equal opportunity employers of protected veterans.

AND

2. The contractor must post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Director, Office of Federal Contract Compliance Programs:

Affirmative Action Support by Top US Executive

The Affirmative Action policy statement must indicate: – Support for contractor’s affirmative action program

by the *top United States executive’s– Provide for an audit and reporting system and – Assign overall responsibility for implementation of

affirmative action activities required under this regulation.

*E.g., CEO or President of United States Division of a foreign company)

Equal Opportunity Clause

Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract):

SEE NEXT SLIDE > > >

EQUAL OPPORTUNITY FOR VEVRAA PROTECTED VETERANSThe contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran, recently separated veteran, active duty wartime or campaign badge veteran, or Armed Forces service medal veteran (hereinafter collectively referred to as “protected veteran(s)”) in regard to any position for which the employee or applicant for employment is qualified.

The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a protected veteran in all employment practices, including the following:

i.     Recruitment, advertising, and job application procedures. ii.    Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right

of return from layoff and rehiring. iii.    Rates of pay or any other form of compensation and changes in compensation. iv.   Job assignments, job classifications, organizational structures, position descriptions, lines

of progression, and seniority lists. v.    Leaves of absence, sick leave, or any other leave. vi.   Fringe benefits available by virtue of employment, whether or not administered by the

contractor. The contractor will include the provisions of this clause in every subcontract or purchase order of $100,000 or more, unless exempted by the rules, regulations, or orders of the Secretary issued pursuant to VEVRAA so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Director, Office of Federal Contract Compliance Programs, may direct to enforce such provisions, including action for noncompliance.The contractor shall in all solicitations or advertisements for employees placed by or on behalf of the contractor state that all qualified applicants will receive consideration for employment without regard to their protected veteran status.

The Equal Opportunity Clause

Equal Opportunity Clause in Contract Does Not Need To Be Verbatim

It is not necessary to include the equal opportunity clause verbatim in the contract. The clause must be made a part of the contract by citation to 41 CFR 60-300.5(a) and inclusion of the following language, in bold text, after the citation:

“This contractor and subcontractor must 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.”

Action-Oriented Programs

The existing regulations will be unchanged and will continue to mandate that contractors “periodically” review physical and mental job qualification standards to ensure that, to the extent the qualification standards screen out qualified, disabled veterans, they are job-related for the position in question and are consistent with business necessity.

The final rule states that contractors “should consider applicants for jobs other than the one for which they applied” (Note: is does not say MUST).

These records must be maintained for a period of three (3) years.

Audit and Reporting System

The contractor must design and implement an audit and reporting system that will:

1 - Measure effectiveness of contractor’s affirmative action program; Indicate any need for remedial action;  

2 - Determine degree to which contractor’s objectives have been attained;

3 - Determine whether known protected veterans have had opportunity to participate in all company sponsored educational, training, recreational and social activities;

4 - Measure contractor’s compliance with affirmative action program’s specific obligations; and

Document actions taken to comply with these obligations above, and retain these documents as employment records subject to recordkeeping requirements of this regulation.

Where affirmative action program is found to be deficient, contractor must undertake necessary action to bring program into compliance.

Listing all job opportunities

The Equal Opportunity Clause (EO Clause) in current rule, as well as VEVRAA statute itself, requires Federal contractors to list their job openings with state or local employment service delivery system (employment service).

Therefore contractors will continue to provide job openings in a format that employment service delivery system will accept along with an additional burden of including a few lines of text to outside job search organizations:

1.       identify contractor as Federal contractor,

2.       request priority referrals, and,

3.       identify contractor’s official responsible for hiring

Listing all job opportunities – Cont’d

All job opportunities, i.e., employment openings, must be listed with the state workforce agency job bank or with local employment service delivery system where opening occurs will satisfy requirement to list jobs with appropriate employment service delivery system.

1. This includes all positions except; executive and senior management; those positions that will be filled from within contractor’s organization; and, positions lasting three days or less.

2. This includes full-time employment, temporary employment of more than three days’ duration, and part-time employment.

Listing all job opportunities – Cont’d

The contractor must also provide to employment service delivery system:

1. Name and location of each hiring location within state and

2. Contact information for contractor official responsible for hiring at each location.

3. “Contractor official” may be – Chief hiring official, – Human Resources contact, – Senior management contact, or – Any other managers for the contractor who can verify

information set forth in job listing and receive priority referrals from employment service delivery systems.

Listing all job opportunities – Cont’d

In the event that contractor uses any external job search organizations to assist in its hiring, contractor must also provide to employment service delivery system contact information for the job search organization(s).

Review of Personnel Processes

Regulation retains existing language requiring periodic review of physical and mental job qualifications to ensure they do not screen out individuals with disabilities.

However, the Final Rule adds a requirement that contractors annually review their outreach and recruitment efforts to determine whether they were effective and document its review.

Documenting Outreach & Recruitment Activities

Final Rule requires contractors to document all outreach and recruitment activities they undertake to comply with new rules and retain these documents for a period of 3 years.

Under existing regulations, contractors are required to establish meaningful outreach and recruitment contacts.

This documentation may take several forms and may include, for

example: 1. Numbers and types of outreach and recruitment events,

2. Targeted groups or types of participants for each event,

3. Dates or timeframes,

4. Location of the events, and

5. Who conducted and participated in the outreach and recruitment on behalf of the contractor.

Training Employees & Policy Dissemination

Final rule requires

(1) including policy in contractor’s policy manual; and

(2) if contractor is party to a collecting bargaining agreement notifying union officials of policy and requesting cooperation

It retains existing rule’s general requirement that “all personnel involved in recruitment, screening, selection, promotion, disciplinary, and related processes” be trained to ensure that contractor’s affirmative action commitments are implemented.

Audit & Reporting System Obligations

Final rule requires contractors to only document and maintain applicant and hire data,

It does not require contractors to collect, maintain, and analyze information on number of referrals and ratio of priority referrals of veterans to total referrals, or require contractors to calculate applicant, hiring, and job fill ratios in this provision.

Reasonable Accommodation Obligations

Existing regulations allow contractors to use as a defense to an allegation that a job qualification screened out a disabled veteran that disabled veteran poses a “direct threat” to health or safety of individual or others in the workplace.

– Final rule requires contractor creates summary of statement of reasons for its direct threat finding to document specific reasons behind belief that “direct threat” defense applies and maintain this document as a confidential medical record

Availability of Affirmative Action Program Document

The full affirmative action program, absent the required data metrics, must be made available to any employee or applicant for employment for inspection upon request.

The location and hours during which the program may be obtained must be posted at each establishment.

Appropriate Outreach & Positive Recruitment Activities

Contractor must undertake *appropriate outreach and positive recruitment activities that are reasonably designed to effectively recruit protected veterans

– Among other things, scope of contractor’s efforts will depend upon contractor’s size, resources, and extent to which existing employment practices are adequate.

– Contractor must send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.

*See next slide for outreach and recruitment activity examples are provided by OFCCP.

OFCCP examples of outreach and positive recruitment activities include:

Enlisting assistance and support of following persons and organizations in recruiting, and developing on-the-job training opportunities for veterans, in order to fulfill its commitment to provide meaningful employment opportunities for such veterans:

1. Local Veterans’ Employment Representative in local employment service office (i.e., One-Stop) nearest contractor’s establishment;

2. Department of Veterans Affairs Regional Office nearest contractor’s establishment;

3. Veterans’ counselors and coordinators (“Vet-Reps”) on college campuses;

4. Service officers of national veterans’ groups active in area of contractor’s establishment;

5. Local veterans’ groups and veterans’ service centers near contractor’s establishment;

6. Department of Defense Transition Assistance Program (TAP), or any subsequent program that, in whole or in part, might replace TAP; and

7. Any organization listed in Employer Resources section of National Resource Directory (http://www.nationalresourcedirectory.gov/), or any future service that replaces or complements it.

Actions Required; Not Just Commitment

OFCCP suggests contractors consider taking the actions listed below, as appropriate, to fulfill its commitment to provide

meaningful employment opportunities to protected veterans:

Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources.

an integral part of the briefing should Include facility tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company’s selection process, and recruiting literature

, the company official in charge of the contractor’s affirmative action program should be in attendance when possible.

Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.

Actions Required; Not Just Commitment II

OFCCP suggests

Contractor’s recruitment efforts at all educational institutions should incorporate special efforts to reach students who are protected veterans.

Actions Required; Not Just Commitment III

OFCCP suggests

An effort should be made to participate in work-study programs with Department of Veterans Affairs rehabilitation facilities which specialize in training or educating disabled veterans.

Actions Required; Not Just Commitment IV

OFCCP suggests:

Protected veterans should be made available for participation in career days, youth motivation programs, and related activities in their communities.

Actions Required; Not Just Commitment V

OFCCP suggests:

Contractor should take any other positive steps it deems necessary to attract qualified protected veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These persons may be located through the local chapters of organizations of and for any of the classifications of protected veterans.

Actions Required; Not Just Commitment

OFCCP suggests:

In making hiring decisions, should consider applicants who are known protected veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable. ANDshould consider listing its job openings with the National Resource Directory’s Veterans Job Bank, or any future service that replaces or complements it.

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