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Content Last Revised: 8/8/2007 |
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Code of Federal Regulations Pertaining to ESA |
| Public Contracts and Property Management |
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| Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor |
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| Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Disabled Veterans, Recently Sperated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans |
41 CFR 60-300.5 - Equal opportunity clause.
- Section Number: 60-300.5
- Section Name: Equal opportunity clause.
(a) Government contracts. 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):
EQUAL OPPORTUNITY FOR DISABLED VETERANS, RECENTLY SEPARATED VETERANS,
OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS
1. The contractor will not discriminate against any employee or
applicant for employment because he or she is a disabled veteran,
recently separated veteran, other protected veteran, or Armed Forces
service medal veteran 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 disabled veteran, recently separated
veteran, other protected veteran, or Armed Forces service medal
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;
vii. Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training;
viii. Activities sponsored by the contractor including social or
recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment
openings which exist at the time of the execution of this contract
and those which occur during the performance of this contract,
including those not generated by this contract and including those
occurring at an establishment of the contractor other than the one
where the contract is being performed, but excluding those of
independently operated corporate affiliates, with the appropriate
employment service delivery system where the opening occurs. Listing
employment openings with the state workforce agency job bank or with
the local employment service delivery system where the opening
occurs will satisfy the requirement to list jobs with the
appropriate employment service delivery system.
3. Listing of employment openings with the appropriate
employment service delivery system pursuant to this clause shall be
made at least concurrently with the use of any other recruitment
source or effort and shall involve the normal obligations which
attach to the placing of a bona fide job order, including the
acceptance of referrals of veterans and nonveterans. The listing of
employment openings does not require the hiring of any particular
job applicants or from any particular group of job applicants, and
nothing herein is intended to relieve the contractor from any
requirements in Executive orders or regulations regarding
nondiscrimination in employment.
4. Whenever a contractor, other than a state or local
governmental contractor, becomes contractually bound to the listing
provisions in paragraphs 2 and 3 of this clause, it shall advise the
state workforce agency in each state where it has establishments of
the name and location of each hiring location in the state. As long
as the contractor is contractually bound to these provisions and has
so advised the state agency, there is no need to advise the state
agency of subsequent contracts. The contractor may advise the state
agency when it is no longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not
apply to the listing of employment openings which occur and are
filled outside of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands, American
Samoa, the Commonwealth of the Northern Mariana Islands, Wake
Island, and the Trust Territories of the Pacific Islands.
6. As used in this clause: i. All employment openings includes
all positions except executive and senior management, those
positions that will be filled from within the contractor's
organization, and positions lasting three days or less. This term
includes full-time employment, temporary employment of more than
three days' duration, and part-time employment.
ii. Executive and senior management means: (1) Any employee (a)
compensated on a salary basis at a rate of not less than $455 per
week (or $380 per week, if employed in American Samoa by employers
other than the
[[Page 44405]]
Federal Government), exclusive of board, lodging or other
facilities; (b) whose primary duty is management of the enterprise
in which the employee is employed or of a customarily recognized
department or subdivision thereof; (c) who customarily and regularly
directs the work of two or more other employees; and (d) who has the
authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or
any other change of status of other employees are given particular
weight; or (2) any employee who owns at least a bona fide 20-percent
equity interest in the enterprise in which the employee is employed,
regardless of whether the business is a corporate or other type of
organization, and who is actively engaged in its management.
iii. Positions that will be filled from within the contractor's
organization means employment openings for which no consideration
will be given to persons outside the contractor's organization
(including any affiliates, subsidiaries, and parent companies) and
includes any openings which the contractor proposes to fill from
regularly established ``recall'' lists. The exception does not apply
to a particular opening once an employer decides to consider
applicants outside of his or her own organization.
7. The contractor agrees to comply with the rules, regulations,
and relevant orders of the Secretary of Labor issued pursuant to the
Act.
8. In the event of the contractor's noncompliance with the
requirements of this clause, actions for noncompliance may be taken
in accordance with the rules, regulations, and relevant orders of
the Secretary of Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices in a
form to be prescribed by the Deputy Assistant Secretary for Federal
Contract Compliance, provided by or through the contracting officer.
Such notices shall state the rights of applicants and employees as
well as the contractor's obligation under the law to take
affirmative action to employ and advance in employment qualified
employees and applicants who are disabled veterans, recently
separated veterans, other protected veterans, or Armed Forces
service medal veterans. The contractor must ensure that applicants
or employees who are disabled veterans are informed of the contents
of the notice (e.g., the contractor may have the notice read to a
visually disabled individual, or may lower the posted notice so that
it might be read by a person in a wheelchair).
10. The contractor will notify each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract understanding, that the contractor is
bound by the terms of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, and is committed to take
affirmative action to employ and advance in employment qualified
disabled veterans, recently separated veterans, other protected
veterans, and Armed Forces service medal veterans.
11. 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 the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended, 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
Deputy Assistant Secretary for Federal Contract Compliance may
direct to enforce such provisions, including action for
noncompliance.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal
opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be
made to the equal opportunity clause as shall be appropriate to
identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It
is not necessary that the equal opportunity clause be quoted verbatim
in the contract. The clause may be made a part of the contract by
citation to 41 CFR 60-300.5(a).
(e) Incorporation by operation of the Act. By operation of the Act,
the equal opportunity clause shall be considered to be a part of every
contract and subcontract required by the Act and the regulations in
this part to include such a clause, whether or not it is physically
incorporated in such contract and whether or not there is a written
contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall
cooperate with the Deputy Assistant Secretary and the Secretary in the
performance of their responsibilities under the Act. Such cooperation
shall include insuring that the equal opportunity clause is included in
all covered Government contracts and that contractors are fully
informed of their obligations under the Act and this part, providing
the Deputy Assistant Secretary with any information which comes to the
agency's attention that a contractor is not in compliance with the Act
or this part, responding to requests for information from the Deputy
Assistant Secretary, and taking such actions for noncompliance as are
set forth in Sec. 60-300.66 as may be ordered by the Secretary or the
Deputy Assistant Secretary.
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