Government Contracts Monitor

U.S. Department Of Labor Issues Notice Of Proposed Rulemaking Concerning Affirmative Action And Non-Discrimination Against Veterans

April 29, 2011

On April 26, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a notice of proposed rulemaking to eliminate 41 C.F.R. Part 60-250, as obsolete, and replace the existing 41 C.F.R. Part 60-300 with new regulations. These regulations implement the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), as amended, 38 U.S.C. § 4212. VEVRAA, and OFCCP’s implementing regulations, are designed to eliminate employment discrimination against U.S. military veterans. One of the means of eliminating discrimination is to require contractors to adopt and implement Affirmative Action Plans designed to increase the hiring of covered veterans. The proposed regulations replace many suggested means of compliance with VEVRAA with new mandatory methods of compliance.

Currently, federal contractors with fifty or more employees and a government contract valued over $100,000 must prepare and implement an affirmative action program specifically designed for hiring U.S. military veterans. The proposed new rules build on the existing regulatory framework and make the following significant revisions (among others):

Veteran non-discrimination and affirmative action plan requirements will now apply to contractors with any federal contract exceeding $100,000 in value. The fifty employee threshold will be eliminated and only dollar value will be the determining threshold for applicability of the regulations.
Contractors will be required to review personnel processes to ensure compliance with the contractor’s Affirmative Action Plan “annually” instead of “periodically” as before. In addition, the new regulations require specific procedures contractors must follow to review their personnel processes.
Contractors will be “required”, instead of “encouraged”, to engage in a minimum number of outreach and recruitment efforts including (i) entering into linkage agreements with the Local Veterans’ Employment Representative in the local employment service office nearest the contractor’s establishment; (ii) entering into linkage agreements with at least one of many listed organizations and agencies for purposes of recruitment and developing training opportunities; and (iii) consulting the Employer Resources section of the National Resource Directory (http://www.nationalresourcedirectory.gov/employment/resources_for_employers_and_veterans_employment_service_providers). Contractors are also “encouraged” to engage in other specifically identified outreach and recruitment efforts.
Contractors will be “required”, instead of “encouraged”, to develop internal procedures to communicate its affirmative action obligations to its employees through a variety of means, such as: (i) including its affirmative action policy in employee manuals; (ii) inform employees and applicants of affirmative action obligations; (iii) conduct meetings/training of executive, management, and supervisory personnel to explain the intent of the policy; and (iv) discuss the policy in orientation and management training programs.

The foregoing is just a sampling of the new requirements and obligations contained in OFCCP’s proposed regulations. HR and/or federal contract compliance specialists should pay close attention to these proposed new rules to determine their full effect on any particular contractor. The full text of the proposed rulemaking may be found at http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/pdf/2011-8693.pdf. Comments to the proposed regulations must be submitted on or before June 27, 2011.

Michael Schrier is the attorney responsible for this content.