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Federal Contracts-Equal Opportunity in Employment: Employment Nondiscrimination and Equal Opportunity for Covered Veterans


 
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Compliance Assistance By Law

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Updated: September 2009


Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended; 41 CFR Parts 60-250(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9Q&exitTitle=www.ecfr.gov&fedpage=yes) and 60-300(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9R&exitTitle=www.ecfr.gov&fedpage=yes)

Who is Covered

The affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212(http://www.dol.gov/ofccp/regs/compliance/ca_vevraa.htm), (“VEVRAA” or “Section 4212”) are administered by the Office of Federal Contract Compliance Programs (OFCCP) and the Veterans’ Employment and Training Service (VETS). Section 4212 generally covers employers with federal contracts or first-tier subcontracts that meet the threshold amount specified in the statute. The date on which the employer entered its federal contract is a key factor in determining whether or not the contract is covered under Section 4212[2]. In the case of federal contracts or subcontracts entered into on or after December 1, 2003, the employer is covered under Section 4212 if the federal contract or subcontract is in the amount of $100,000 or more. Contracts covered by Section 4212 and its implementing regulations found at 41 CFR Part 60-250(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9Q&exitTitle=www.ecfr.gov&fedpage=yes) and 41 CFR Part 60-300(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9R&exitTitle=www.ecfr.gov&fedpage=yes) may be for the purchase, sale or use of personal property, nonpersonal services, or both. In this context, the term "nonpersonal services" includes services such as construction. Agreements in which the parties stand in the relationship of employer and employee are not covered.

The following types of contracts and subcontracts entered into on or after December 1, 2003, are not covered under Section 4212[3]:

  • Those for less than $100,000;
  • Those for indefinite quantities where the agency determines that the cost in any one year will not exceed $100,000;
  • Those for work that is performed outside the U.S.; and
  • Those with state or local governments, except for the specific government entity that participates in work on or under the contract.

The Deputy Assistant Secretary for Federal Contract Compliance Programs may grant a waiver from the requirements of Section 4212 in the following circumstances:

  • For specific contracts, subcontracts, or purchase orders, if special circumstances in the national interest require such an exemption;
  • For facilities not related to performance of the contract, as determined by the Deputy Assistant Secretary upon written request by the contractor; and
  • Contracts and subcontracts involving national security, if the head of the contracting agency determines both that the contract is essential to national security, and  noncompliance with a particular requirement of Section 4212 or the regulations with respect to the process of awarding the contract is essential to national security.

The 2002 Jobs for Veterans Act (JVA) amendments increased the coverage threshold from a contract of $25,000 or more to a contract of $100,000 or more and changed the categories of veterans that are covered under Section 4212[4]. The categories of veterans covered under Section 4212 as a result of the JVA amendments are disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans, and veterans who, while serving on active duty in the Armed Forces, participated in a U.S. military operation for which an Armed Forces Service Medal was awarded pursuant to Executive Order 12985 (61 FR 1209)(http://www.opm.gov/veterans/html/vgmedal2.asp). The regulations found at 41 CFR 60-300 implement the JVA amendments to Section 4212 and apply to federal contracts and subcontracts of $100,000 or more entered into or modified on or after December 1, 2003.

Section 4212 and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a federal contract or subcontract. The coverage is narrower than that which applies to employers in the private sector.

Definitions

Under Section 4212, a “veteran of the Vietnam era” means a veteran of the U.S. military, ground, naval, or air service, any part of whose service was during the period August 5, 1964 through May 7, 1975, who served on active duty for a period of more than 180 days and was discharged or released with other than a dishonorable discharge, or was discharged or released from active duty because of a service-connected disability. “Vietnam era veteran” also includes any veteran of the U.S. military, ground, naval, or air service who served in the Republic of Vietnam between February 28, 1961 and May 7, 1975.

NOTE: JVA eliminated Vietnam era veterans as a protected category under VEVRAA. However, most Vietnam era veterans will continue to be protected under other categories.

A “special disabled veteran” is a person who is entitled to compensation under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more; or, rated at 10 or 20 percent, if it has been determined that the individual has a serious employment disability; or, a person who was discharged or released from active duty because of a service-connected disability.

A “disabled veteran” means a veteran who served on active duty in the U.S. military ground, naval, or air service and is entitled to disability compensation (or who but for the receipt of military retired pay would be entitled to disability compensation) under laws administered by the Secretary of Veterans Affairs, or was discharged or released from active duty because of a service-connected disability.

With respect to federal contracts and subcontracts entered into on or after December 1, 2003, “recently separated veterans” means any veteran who served on active duty during the three-year period beginning on the date of such veteran’s discharge or release from active duty[5].

An “other protected veteran” means any other veteran who served on active duty in the U.S. military ground, naval, or air service during a war or in a campaign or expedition for which a campaign badge has been authorized.

An “Armed Forces Service Medal veteran” means a veteran who, while serving on active duty in the U.S. military ground, naval, or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 Fed. Reg. 1209).


Basic Provisions/Requirements

For covered contracts and subcontracts entered into or modified on or after December 1, 2003, covered veterans include disabled veterans, other protected veterans, recently separated veterans (three years) and Armed Forces Service Medal veterans[6].

The regulations implementing Section 4212 include the obligation to refrain from discrimination in employment against protected veterans. The regulations also require all covered contracts and subcontracts to include a specific equal opportunity clause. The regulations provide the required language for this clause at 41 CFR 250.5(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9Q&exitTitle=www.ecfr.gov&fedpage=yes41CFR60-250.5.htm) and 60-300.5(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9R&exitTitle=www.ecfr.gov&fedpage=yes).

In addition, Section 4212 requires contractors and subcontractors to list most employment openings with an appropriate employment service delivery system. Exempted from this mandatory job listing requirement are executive and top management positions, positions that will be filled from within the contractor’s organization, and positions lasting three days or less. 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 local employment service delivery system.

Covered contractors and subcontractors are also required to make reasonable accommodations for the known physical or mental limitations of qualified individuals with disabilities, unless providing an accommodation would create an undue hardship. In addition, covered contractors and subcontractors are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against any individual for filing a complaint or participating in a proceeding under Section 4212.

Affirmative Action Program. Under the regulations implementing VEVRAA, certain contractors and subcontractors are required to have a written affirmative action program (AAP). For contracts and subcontracts entered into on or after December 1, 2003, each contractor or subcontractor that has (1) 50 or more employees, and (2) a federal contract or subcontract of $100,000 or more, must prepare, implement, and maintain a written AAP for each of its establishments[7].


Employee Rights

Employees and applicants for employment with a covered contractor or subcontractor have the right to file a complaint with OFCCP if they believe that the contractor or subcontractor has discriminated against them on the basis of their status as a protected veteran or otherwise violated VEVRAA and its implementing regulations. Such complaints may be filed online at OFCCP’s How to File a Complaint Web page(http://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm).


Recordkeeping, Reporting, Notices and Posters


Notices and Posters

Contractors and subcontractors who have a covered federal contract or subcontract are required to post the EEO notice, “Equal Employment Opportunity is the Law” poster(http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm). The notice must be posted prominently, where it can be readily seen by employees and applicants for employment, (e.g., personnel office, work-out facility, lunchroom, or company bulletin board). 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 can be read by a person in a wheelchair). There is no particular size requirement.

The notice is also available in Spanish(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeosp.pdf) and Chinese(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost(chinese).pdf). Posting of the notice in languages other than English is not required.

OFCCP recognizes that there are differences between its poster and the Equal Employment Opportunity Commission’s (EEOC) poster(http://www.eeoc.gov/posterform.html). Despite these differences, both posters are accepted as valid by OFCCP and the EEOC.

Contractors that have the obligation to develop a written AAP under VEVRAA must post a notice at each establishment providing the location and hours the AAP may be obtained. Additionally, the policy statement required by a Section 4212 AAP must be posted on company bulletin boards and applicants and employees who are disabled veterans must be informed of the contents of the policy statement (for example, the contractor may have the statement read to a visually disabled individual, or may lower the posted notice so that it can be read by a person in a wheelchair).


Recordkeeping

Personnel records. Federal contractors and subcontractors are required to preserve any personnel or employment records made or kept by the contractor or subcontractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. Contractors and subcontractors with fewer than 150 employees or who do not have a government contract or subcontract of at least $150,000 only need to keep records for one year from the date of the making of the record or the personnel action involved, whichever occurs later.

Examples of records that must be maintained include, but are not limited to:

  • Job descriptions
  • Job postings and advertisements
  • Records of job offers
  • Applications and resumes
  • Interview notes
  • Tests and test results
  • Written employment policies and procedures
  • Personnel files

Reporting

Federal contractors or subcontractors with a federal contract or subcontract of $100,000 or more entered into or modified on or after December 1, 2003, are required to complete and submit the VETS-100A Report showing the numbers of protected veterans hired or employed during the reporting period who are disabled veterans, recently separated veterans (3 years), other protected veterans, and Armed Forces Service Medal veterans[8]. The VETS-100A Report(http://www.dol.gov/vets/programs/fcp/main.htm) may be completed online.

Note that contractors may be asked to submit AAPs or other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.


Penalties/Sanctions

OFCCP investigates for violations of the Act either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.

If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The Department of Labor’s Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ's decision, it may appeal the decision to the Board.

If the Board finds that the contractor or subcontractor has violated Section 4212, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.


Relation to State, Local, and Other Federal Laws

There are no related state or local laws.


Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Vietnam Era Veterans’ Readjustment Assistance Act. Among the many resources available are:

Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/ofccp/regs/compliance/ca_vevraa.htm) Web page.


DOL Contacts

Office of Federal Contract Compliance Programs (OFCCP)(http://www.dol.gov/ofccp/)
E-mail: OFCCP-Public@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627

Veterans’ Employment and Training Service (VETS)(http://www.dol.gov/vets/)
E-mail: contact-vets@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-202-693-4770; TTY: 1-877-889-5627

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365) (1-866-487-2365).

Table of Contents

[2] In the case of federal contracts and subcontracts entered into before December 1, 2003, the employer is covered under Section 4212 if the amount of the federal contract or subcontract is $25,000 or more.

[3] The following types of contracts and subcontracts, entered into before December 1, 2003, are not covered under Section 4212: those less than $25,000; those for indefinite quantities, where the agency determines that the cost in any one year will not exceed $25,000; those for work that is performed outside the U.S.; and those with state or local governments, except for the specific government entity that participates in work on or under the contract.

[4] Prior to amendment in 2002 by the JVA, Section 4212 applied to contractors and subcontractors with a contract or subcontract of $25,000 or more. In addition, the categories of veterans protected under Section 4212 prior to the JVA amendments include special disabled veterans, veterans of the Vietnam era, recently separated veterans (within one year of discharge or release from active duty), and veterans who served on active duty during a war or in a campaign for which a campaign badge has been authorized. The term “other protected veteran” has been adopted to refer to “veterans who served on active duty during a war or in a campaign for which a campaign badge has been authorized.” The regulations found at 41 CFR Part 60-250 implement the affirmative action provisions of Section 4212 prior to their amendment by the JVA and are applicable to contracts entered into before December 1, 2003.

[5] A “recently separated veteran,” with respect to federal contracts and subcontracts entered into before December 1, 2003, means any veteran who served on active duty in the U.S. military ground, naval, or air service during the one-year period beginning on the date of such veteran’s discharge or release from active duty.

[6] Section 4212 requires covered contractors and subcontractors to take affirmative steps to employ and advance in employment qualified covered veterans. For covered contracts and first-tier subcontracts entered into before December 1, 2003, covered veterans include special disabled veterans, veterans of the Vietnam era, other protected veterans, and recently separated veterans (one year).

[7] For contracts entered into before December 1, 2003, each contractor or subcontractor that has (1) 50 or more employees, and (2) a federal contract or first-tier subcontract of $50,000 or more, must prepare, implement, and maintain a written AAP for each of its establishments. The employer must review and update the AAP annually, and it must be available for inspection by any employee or applicant for employment, as well as by OFCCP. The AAP may be integrated with, or kept separate from, any other affirmative action program the employer is required to prepare.

[8] VEVRAA requires contractors and subcontractors to track and report annually to the Secretary of Labor the number of employees in their workforces who are veterans covered under the law. The Veterans’ Employment and Training Service (VETS) administers the reporting requirements under VEVRAA and has established two forms for reporting the required information. Federal contractors and subcontractors with a federal contract or subcontract of $25,000 or more entered into before December 1, 2003, are required to complete and file the VETS-100 Report showing the numbers of protected veterans hired or employed during the reporting period who are special disabled veterans, veterans of the Vietnam era, other protected veterans, and recently separated veterans (1 year). The VETS-100 Report(http://www.dol.gov/vets/programs/fcp/main.htm) may be completed online.