By: La Toya Palmer – 3/17/14
On August 27, 2013, the U.S. Department of Labor’s (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) announced — what is termed as the new Final Rules —which incorporate changes to the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”). VEVRAA had not been modified since its inception in 1974. The amended VEVRAA can be found at 41 CFR Part 60-300. The driving force behind the amendments was the growing number of veterans returning from tours of duty and experiencing great difficulty finding work. According to the DOL, the unemployment rate for Gulf-War-era II veterans between the ages of 18-24 was 20% higher than the rate of nonveterans in the same age group. With the Amendments, VEVRAA becomes more robust in mandating that Federal Contractors/subcontractors play a more active role in the continuous process of including veterans in their hiring plans.
As an employer, you are probably wondering, “How does this affect me?” If you are an employer that has government contracts, the new Final Rules affect you in a big way! As a government contractor or subcontractor, the new regulations require significant revisions to your Affirmative Action Plans (“AAPs”) once your current AAP expires after March 24. AAPs in place before March 24 will not have to comply until they expire. Thus, AAPs prepared after March 24 must comply with the various new requirements, adding significant time and preparation costs. Moreover, the new requirements go well beyond changes in “text.” Contractors and subcontractors will be required to adopt additional categories of analytics, including assessments whether they meet utilization goals and benchmarks for protected veterans as well as descriptions of the affirmative action and compliance policies and programs they have adopted to increase the numbers of protected veterans. The following summarizes these and the other main changes to VEVRAA:
- Applicant Self-Identify Provision – The Final VEVRAA Rules requires an applicant to be invited to self-identify as a protected veteran both before and after an offer of employment is made;
- Notice to Applicants and Employees – The “EEO is the law” poster must be provided to applicants and employees. Where an internet application is used, the DOL permits contractors/subcontractors to link to the poster with a brief explanation. As of the date of this posting the “EEO is the law” poster has not been revised.
- Annual Hiring Benchmark – The Final Rules establish an annual hiring benchmark that an employer must set for the purpose of hiring veterans. The benchmark can be set one of two ways: (1) by using the national percentage of veterans currently in the civilian labor force (as posted on OFCCP’s website –currently 8%) or, (2) by establishing their own benchmark based on five specific OFCCP factors;
- State or Local Employment Service Office Requirement– Federal contractors/subcontractors will have to continue posting open positions with state or local employment service centers, while also requesting that they receive priority veteran referrals.
- Data Collection and Analysis Obligations-the Final Rules require federal contractors/subcontractors to collect and analyze certain data on an annual basis, including:
– the total number of applicants for employment who self-identified as protected veterans;
– the total number of job openings and total number of jobs filled;
– the total number of applicants for all jobs;
– the total number of protected veteran applicants hired; and
– the total number of applicants hired;
- Annual Evaluation of Outreach Efforts – Contractors/subcontractors must annually analyze the effectiveness of their outreach efforts. This information must also be properly documented.
- Subcontract Clause Requirement – Contractors must include specific, mandated language in all subcontracts to put subcontractors on notice of their affirmative action responsibilities in regards to protected veterans.
- Job Solicitations and Advertisements – Contractors/subcontractors must state in their job solicitations and advertisements that they are an equal opportunity employer of protected veterans.
This list is only a snapshot of the new Final Rules that go into effect on March 24. Many of the new mandates will require time to be implemented; thus, federal contractors/subcontractors should consult with counsel soon to formulate a plan to ensure compliance while minimizing legal risks and exposure. New software may also have to be purchased to account for the new requirements before your next AAP update.