Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Special Disabled Veterans and Vietnam Era
Veterans; Final Rule [11/04/1998]
Volume 63, Number 213, Page 59629-59657[[Page 59629]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Federal Contract Compliance Programs
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41 CFR Part 60-250
Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Special Disabled Veterans and Vietnam Era
Veterans; Final Rule
41 CFR Part 60-741
Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Individuals With Disabilities; Final Rule
[[Page 59630]]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AA62
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Special Disabled Veterans and
Vietnam Era Veterans
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations implementing the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended (VEVRAA). VEVRAA requires Government
contractors and subcontractors to take affirmative action to employ and
advance in employment qualified special disabled veterans and veterans
of the Vietnam era. Today's rule generally conforms the VEVRAA
regulations to the Office of Federal Contract Compliance Programs'
regulations implementing Section 503 of the Rehabilitation Act of 1973,
as amended (Section 503). The rule also withdraws portions of a final
rule published by the Department of Labor on December 30, 1980 (which
was subsequently suspended) concerning VEVRAA, Executive Order 11246,
and Section 503. The withdrawal applies only to those provisions of the
1980 rule which pertain to VEVRAA.
DATES: The regulations are effective January 4, 1999. However, affected
parties do not have to comply with the new recordkeeping requirements
contained in the final rule until the Office of Management and Budget
(OMB) completes its review under the Paperwork Reduction Act of 1995
and OFCCP publishes in the Federal Register valid OMB control numbers.
FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of
Policy, Planning and Program Development, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue, N.W., Room C3325,
Washington, D.C. 20210. Telephone: (202) 693-0102 (voice), 1-800-326-
2577 (TDD). Copies of this final rule, including copies in alternate
formats, may be obtained by calling (202) 693-0102 (voice), 1-800-326-
2577 (TDD). The alternate formats available are large print, an
electronic file on computer disk and audiotape. The rule also is
available on the Internet at http://www.dol.gov/dol/esa.
SUPPLEMENTARY INFORMATION:
Recent Legislative Developments
When OFCCP sent this final rule to the Federal Register for
publication, both houses of Congress had passed S. 1021, the ``Veterans
Employment Opportunities Act of 1998,'' but the bill had not yet been
signed into law. If the bill becomes law it will require additional
changes to the VEVRAA regulations, to increase the coverage threshold
from a contract of $10,000 or more to a contract of $25,000 or more,
and to add to the class of individuals protected under the law
``veterans who served on active duty during a war or in a campaign or
expedition for which a campaign badge has been authorized.'' OFCCP
considered delaying publication of this final rule until regulatory
provisions addressing the new legislation could be drafted and included
in the rule. We rejected that approach, however, because it would
unduly delay the implementation of the many important provisions
contained in this final rule, without increasing the speed with which
the revisions mandated by the new legislation could be published. OFCCP
has already begun work on an additional regulatory document that would
address the new legislation, and expects to publish that document in
the near future.
Current Regulations and Rulemaking History
This final rule revises the current regulations (41 CFR Part 60-
250) implementing the affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act, as amended, 38 U.S.C. 4212
(Section 4212 or VEVRAA). VEVRAA requires parties holding a Government
contract or subcontract of $10,000 or more to ``take affirmative action
to employ and advance in employment qualified special disabled veterans
and veterans of the Vietnam era.'' (VEVRAA, which was originally
codified at 38 U.S.C. 2012, was redesignated as 38 U.S.C. 4212 by
Section 5(a) of the Department of Veterans Affairs Codification Act,
Pub. L. 102-83, August 6, 1991; no substantive change to VEVRAA
resulted from this legislation.)
The Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP), which has authority to enforce Section 4212, has
published regulations implementing the Act at 41 CFR Part 60-250. These
regulations, consistent with the statute's mandate, establish various
affirmative action obligations for contractors (e.g., contractors are
required to use effective practices to recruit special disabled
veterans and veterans of the Vietnam era). The regulations require that
contractors refrain from discriminating against special disabled
veterans and veterans of the Vietnam era in all aspects of employment,
inasmuch as this prohibition is an indispensable component of
affirmative action. Another central requirement of the current
regulations is that contractors make reasonable accommodation to the
known physical or mental limitations of a qualified special disabled
veteran applicant or employee, unless the contractor can demonstrate
that the accommodation would impose an undue hardship on the operation
of its business. An accommodation is, for example, any change in the
work environment (e.g., the modification or acquisition of equipment)
or in the way a job customarily is performed (e.g., changes in work
assignments) that enables a qualified special disabled veteran to enjoy
equal employment opportunities.
On May 1, 1996, OFCCP published an interim rule revising 41 CFR 60-
250.5(d), Invitation to self-identify, and Appendix A to Part 60-250,
Sample Invitation to Self-Identify (61 FR 19366). The revision was
published to be consistent with an analogous requirement in the Section
503 final rule, also published on May 1, 1996 (61 FR 19336).
On September 24, 1996, OFCCP published a notice of proposed
rulemaking (NPRM)(61 FR 50080), proposing to revise the regulations
implementing VEVRAA. A correction notice and extension of the comment
period was published on October 28, 1996 (61 FR 55613). The comment
period ended December 27, 1996. Two comments were submitted in response
to the May 1, 1996, interim rule, and another seven comments were
submitted in response to the September 24, 1996, NPRM, as corrected. In
addition, five organizations expressed views on the proposal in a
meeting with OFCCP held during the comment period. The comments
represented the views of contractor advocacy organizations, veterans
advocacy organizations, an employer, an attorney who advises employers,
a state governmental agency, and two Federal agencies. All comments
have been analyzed and considered in the development of this final
rule.
Regulatory Revisions
Today's final rule is precipitated, in part, by OFCCP's publication
of a final rule revising the regulations
[[Page 59631]]
implementing Section 503 of the Rehabilitation Act of 1973 (61 FR
19336, May 1, 1996). Section 503 requires Government contractors and
subcontractors to take affirmative action to employ and advance in
employment qualified individuals with disabilities. In turn, the
revision to the Section 503 regulations was designed, in part, to
conform those regulations to regulations published by the Equal
Employment Opportunity Commission (EEOC) implementing Title I of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.
See 29 CFR Part 1630. Title I of the ADA, which is enforced by the
EEOC, prohibits private and state and local governmental employers with
15 or more employees from discriminating against qualified individuals
with disabilities in all aspects of employment. The ADA regulations
establish comprehensive, detailed prohibitions regarding disability
discrimination but do not require affirmative action.
OFCCP has modeled its regulations implementing 38 U.S.C. 4212 on
those implementing Section 503. This reflects the close similarity
between the statutes in terms of their substantive protections and
jurisdictional requirements. For instance, Section 4212, like Section
503, protects disabled individuals, albeit a more narrow class of
disabled persons--that is, ``special disabled veterans.'' The VEVRAA
regulations being revised today were identical to the former Section
503 regulations, except where differences were necessary because of the
nature of the protected class or differences in the statutes, to assure
that covered contractors were subject to consistent requirements under
both laws. In order to retain that consistency and avoid confusion and
conflict, OFCCP believes that the Section 4212 regulations should
continue to parallel the Section 503 regulations.
Accordingly, OFCCP has revised the Section 4212 regulations to
conform them to the Section 503 final rule published in 1996. Thus,
today's final rule, similar to the final Section 503 regulations,
adopts the standards contained in the regulations implementing the ADA
regarding disability discrimination, but applies these standards with
respect to special disabled veterans and, to a more limited extent, to
veterans of the Vietnam era.
Specific changes are discussed in the Section-by-Section Analysis
below.
Partial Withdrawal of 1980 Final Rule
OFCCP also proposed to withdraw portions of a final rule published
by the Agency on December 30, 1980 (45 FR 86215; corrected at 46 FR
7332, January 23, 1981), and deferred indefinitely on August 21, 1981
(46 FR 42865). That 1980 rule would have revised the regulations at 41
CFR Chapter 60 implementing Section 4212 as well as two other laws
enforced by OFCCP--Executive Order 11246, as amended, and Section 503.
Executive Order 11246 requires Government contractors and
subcontractors to assure equal employment opportunity without regard to
race, color, religion, sex and national origin. As noted above, Section
503 mandates similar requirements with regard to the employment of
individuals with disabilities.
The December 30, 1980, rule was to take effect on January 29, 1981.
On January 28, 1981, the Department of Labor published a document (46
FR 9084) delaying the effective date of the final rule until April 29,
1981, to allow the Department time to review the regulation fully. The
Department published three subsequent deferrals of the rule in 1981 in
order to fully review the OFCCP regulations in accordance with
Executive Order 12291, to permit consultation with interested groups,
and to comply with new intergovernmental review and coordination
procedures. The Department again postponed the rule's effective date on
August 25, 1981, until action could be taken on a proposed rule
published on the same date (46 FR 42968).
The August 25, 1981, proposal would have revised a number of
provisions contained in the December 30, 1980, final rule as well as a
number of provisions in 41 CFR Chapter 60 which were not amended by
that final rule. Final action has not been taken with respect to the
proposed regulations issued on August 25, 1981, or, consequently, with
respect to the 1980 final rule.
The substance of a number of the provisions contained in the 1980
final rule pertaining to the current Section 4212 regulations has been
incorporated into today's final rule. However, OFCCP has determined not
to go forward with some of the other revisions to the regulations. For
instance, unlike today's final rule (and the current regulations), the
1980 final rule would have consolidated a number of the provisions of
the Section 4212 regulations with common provisions implementing
Executive Order 11246 and Section 503 into 41 CFR Part 60-1, which
currently sets out the general obligations under the Executive Order.
The one comment received on the proposed withdrawal of the 1980
final rule is discussed in the Section-by-Section Analysis below. In
order to avoid conflict between today's final rule and the 1980 final
rule, OFCCP hereby withdraws all provisions of the 1980 rule that
pertain to Section 4212.
Section-by-Section Analysis
This final rule consists of five subparts. Subpart A, ``Preliminary
Matters, Equal Opportunity Clause,'' explains the purpose, application
and construction of the regulations in general and contains an
extensive definitions section. The definitions section incorporates the
definitions contained in the Section 503 final rule which are relevant
to the enforcement of Section 4212, as well as statutorily required
revisions to the definitions of ``special disabled veteran'' and
``veteran of the Vietnam era.'' Subpart A also contains provisions
relating to coverage under Section 4212, and coverage exemptions and
waivers, as well as the equal opportunity clause, which delineates a
covered contractor's general duties under the Act.
Subpart B is a new subpart, which specifies the employment actions
that will be deemed to constitute prohibited discrimination under
Section 4212. This subpart is substantially identical to the parallel
provisions in the Section 503 final rule. Where appropriate, references
to special disabled veterans and veterans of the Vietnam era have been
substituted for the references in the Section 503 regulations to
individuals with disabilities.
Subpart C, which governs the applicability of the written
affirmative action program requirement, reorganizes, clarifies and
strengthens the affirmative action provisions in the current
regulations. These revisions parallel those found in the Section 503
final rule. As stated in Sec. 60-250.40(a), the requirements of Subpart
C apply only to Government contractors with 50 or more employees and a
contract of $50,000 or more. All other subparts of the regulation are
applicable to all contractors covered by Section 4212.
Subpart D covers general enforcement and complaint procedures. In
order to help ensure that OFCCP uses consistent enforcement approaches
under VEVRAA and Executive Order 11246, this subpart, again paralleling
the changes in the Section 503 final rule, incorporates a number of
provisions from the regulations implementing the Executive Order.
Further, Subpart D's provisions regarding complaint procedures, like
the counterpart provisions in the Section 503 final rule, are in part
based on the procedural regulations applicable to the ADA. These
procedures also are revised to reflect an amendment to Section 4212.
[[Page 59632]]
Subpart E, Ancillary Matters, incorporates revised provisions on
recordkeeping (e.g., it extends the current one-year record retention
period to two years for larger contractors and conforms the scope of
the retention obligation to that applied by the EEOC under the ADA and
by OFCCP under Section 503), adds a mandatory notice posting
requirement, and makes other revisions.
Finally, this rule contains a new appendix which sets out guidance
on the duty to provide reasonable accommodation under the Act. The
appendix is substantially identical to the counterpart appendix
contained in the Section 503 final rule. In turn, that appendix is
consistent with the discussion of the issue of reasonable accommodation
contained in the Interpretative Guidance on Title I of the Americans
with Disabilities Act, which is set out as an appendix to the EEOC's
ADA regulations. Accordingly, the EEOC appendix may be relied on for
guidance with respect to parallel provisions of this final rule.
This rule uses a long form amending procedure in which all sections
of the regulations are republished, including sections for which no
changes were proposed and sections for which the only proposed change
was the section number. Use of the long form procedure ensures maximum
clarity. The discussion which follows identifies the comments received
in response to the NPRM, provides OFCCP's responses to those comments,
and explains any resulting changes to the proposed revisions.
Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-250.1 Purpose, Applicability and Construction
The preamble to the NPRM pointed out that the 1980 final rule would
have consolidated provisions (e.g., definitions) which are applicable
to both Section 4212 and Executive Order 11246 into 41 CFR Part 60-1,
and would have established some common enforcement procedures under all
of the laws enforced by OFCCP by making certain procedures (e.g., the
show cause notice), which were previously applicable only to the
Executive Order, applicable to Section 4212. The VEVRAA NPRM proposed
withdrawal of the 1980 final rule, and did not propose similar
consolidations because OFCCP now believes that consolidation of
provisions in this way is not practical.
One commenter objected to OFCCP's stated inclination not to
consolidate common provisions. The commenter felt that OFCCP applies a
low priority to veterans' employment rights, and suggested that
consolidating common provisions would strengthen enforcement of VEVRAA
and place it on a par with enforcement of Executive Order 11246.
OFCCP disagrees with the commenter's assessment that the agency
applies low priority to enforcement of VEVRAA. Traditionally, whenever
OFCCP has conducted a compliance review it has examined compliance with
VEVRAA (and Section 503) as well as compliance with Executive Order
11246. OFCCP also investigates all complaints of discrimination filed
under VEVRAA; by contrast, most complaints of discrimination under the
Executive Order are not investigated by OFCCP but are referred to the
EEOC for processing under Title VII of the Civil Rights Act of 1964.
Further, OFCCP does not agree with the commenter's premise that
consolidating provisions would alter enforcement of VEVRAA. The vast
majority of the consolidations made in the 1980 rule simply moved
various provisions from Parts 60-250 and 60-741 into Part 60-1, without
substantive change. The thinking at that time was that the regulations
would be easier to use if fundamental elements (such as definitions)
appeared in one place at the beginning of Chapter 60. Also, OFCCP hoped
to shorten the regulations by reducing instances in which similar
material (e.g., provisions on coverage and waivers) was repeated three
times in three different Parts of Chapter 60. Upon reexamination in
light of the comment, OFCCP concludes that consolidating provisions is
not justified or necessary at this time. In OFCCP's view, consolidation
would not strengthen enforcement of VEVRAA and could be confusing to
readers of the regulations.
Paragraph (c)(2) of the proposal, and of the final rule, provides
that the contractor may take an action which would violate Part 60-250,
or refrain from taking an action required by that part, where such
action or omission is required or necessitated by another Federal law
or regulation. OFCCP stated in the preamble to the NPRM, as examples of
this principle, that ``contractors would be permitted to comply with
requirements relating to the collection, analysis and disclosure of
certain medical information which are imposed by the Mine Safety and
Health Act (MSHA) and the Occupational Safety and Health Act (OSHA)
(and related state laws which have been approved by the Occupational
Safety and Health Administration).'' (Emphasis added.)
The EEOC commented that they agree that contractors may rely on an
OSHA-approved state law that is identical to its Federal counterpart,
as a defense. However, they stated that they have not yet taken a
position on the use of a conflicting OSHA-approved state safety and
health law that is not identical to the Occupational Safety and Health
Act, as a defense to a violation of the ADA. We agree that our NPRM
preamble statement relating to reliance on a state law may be overly
broad. At this time we will not permit a contractor to rely upon a
state law which is not identical to the Occupational Safety and Health
Act, as a defense to a violation of VEVRAA. Accordingly, we have
deleted the parenthetical statement which appeared in the NPRM.
Section 60-250.2 Definitions
Section 60-250.2(h) Contract
OFCCP proposed that ``contract'' be defined to include ``any
Government contract or subcontract.'' (Emphasis added.) One commenter
suggested that it is inappropriate to include subcontracts within the
definition of contract, because doing so would impede OFCCP's ability
to identify subcontractors and therefore to enforce VEVRAA against
subcontractors. OFCCP disagrees. The regulations continue to define the
terms ``subcontract'' and ``subcontractor.'' See Secs. 250.2(l) and
(m). The purpose of including ``subcontract'' within the definition of
``contract'' is simply to eliminate the need to mention subcontracts in
the regulatory text each time the regulation seeks to address both
contracts and subcontracts. This change will not in any way affect
OFCCP's ability to identify subcontractors or to enforce the law
against subcontractors.
Section 60-250.2(o) Qualified Special Disabled Veteran
In the proposed rule the definition of qualified special disabled
veteran cross-referenced Sec. 60-250.3, which in the proposal contained
exceptions to the definition of special disabled veteran and qualified
special disabled veteran. As discussed below, we have not included the
exceptions in the final rule. Accordingly, we have dropped the cross
reference from this definition.
Section 60-250.2(p) Veteran of the Vietnam Era
One commenter pointed out that on October 9, 1996, the Veterans'
Benefits Improvement Act of 1996 (Public Law 104-275, Sec. 505) amended
VEVRAA by, among others things, changing the
[[Page 59633]]
definition of ``Vietnam era.'' Under the revised definition, the
Vietnam era now extends from February 28, 1961, through May 7, 1975,
for veterans who served in the Republic of Vietnam during that period,
and from August 5, 1964, through May 7, 1975, in all other cases.
Revision of the statutory definition requires a corresponding
revision of OFCCP's regulatory definition of ``Veteran of the Vietnam
era.'' This revision is a nondiscretionary, ministerial action which
merely incorporates, without change, the statutory amendment into a
pre-existing regulation. Publication in proposed form would serve no
useful purpose, and therefore is unnecessary under the Administrative
Procedure Act (5 U.S.C. 553(b)(B)). Accordingly, we find good cause to
waive notice of proposed rulemaking and to include the revision in this
final rule.
Section 60-250.3 Exceptions to the Definitions of ``special disabled
veteran'' and ``qualified special disabled veteran''
As proposed, this section would have excluded from the Act's
protection of special disabled veterans and qualified special disabled
veterans: (a) an alcoholic whose current use of alcohol prevents
performance of the essential functions of the employment position in
question or which would pose a direct threat to property or to health
or safety; and (b) an individual with a currently contagious disease or
infection who, by reason of the disease or infection, would constitute
a direct threat to the health or safety of the individual or others or
who, by reason of the disease or infection, is unable to perform the
essential functions of the employment position in question. The two
exclusions would have been carried over from the Section 503 rule.
A commenter objected to the proposal's exclusion of certain
alcoholics from protection. The commenter was concerned that the
provision might encourage stereotyping of disabled veterans.
Upon consideration of the proposed rule in light of the comment,
OFCCP has decided to remove from the final rule both proposed
exclusions. The exclusions must appear in the Section 503 rules,
because Section 503 itself requires them. However, none of Section
503's exclusions from protection have been legislated into VEVRAA.
Accordingly, in this final rule we do not adopt the exclusions which
are found at 41 CFR 60-741.3 in the Section 503 rule. In order to
preserve parallel section numbering between the VEVRAA and Section 503
rules, we have designated Sec. 60-250.3 as ``Reserved.''
Section 60-250.5 Equal Opportunity Clause
Paragraph (a)2 of the proposal required that contractors
immediately list their employment openings at an appropriate office of
the state employment service system wherein the opening occurs. One
commenter suggested that listing job openings with the Department of
Labor's America's Job Bank should be deemed to satisfy the job listing
requirement. America's Job Bank is a computerized, nationwide listing
of job openings. The computerized network links the 1800 state
employment service offices. Job seekers may access the Job Bank via the
Internet at http://www.ajb.dni.us/, and on computer systems in public
libraries, colleges and universities, high schools, shopping malls and
other public places.
OFCCP agrees, along with the Veterans' Employment and Training
Service, that listing jobs in America's Job Bank will satisfy a
contractor's listing obligation. Therefore, we have supplemented
paragraph (a)2 of the equal opportunity clause to reflect this
additional method for listing jobs.
The same commenter also felt that the regulations ``are unclear as
to whether an employer is required to list with a state employment
agency positions normally filled through outside temporary employment
agencies.'' The commenter apparently disagrees with the interpretation
some OFCCP staff have given the corresponding provision of the existing
regulation. OFCCP believes that the answer to this question depends
upon the facts of each particular situation, and therefore is too
detailed to be included in a regulation.
Section 702 of the Veterans' Benefits Improvements Act of 1994,
Public Law 103-446, permits the exemption of the contractor's
``executive and top management'' positions from the mandatory job
listing requirement. OFCCP proposed a definition of ``executive and top
management'' that was based upon the definition of ``executive'' found
in the Department of Labor's regulations implementing the Fair Labor
Standards Act (FLSA), 29 CFR 541.1. One commenter objected to the
proposed definition, claiming that it ``would serve to exempt all but
the very lowest positions.''
As proposed, the full definition stated that in order to be
considered ``executive and top management,'' and thus exempt from the
mandatory listing requirement, a job must satisfy five factors: (a) the
incumbent employee's primary duty must consist of the management of the
enterprise or of a customarily recognized department or subdivision of
the enterprise; (b) the employee must customarily and regularly direct
the work of two or more other employees; (c) the employee must have the
authority to hire or fire other employees, or his or her suggestions
and recommendations as to the hiring or firing and as to the
advancement and promotion or other change of status will be given
particular weight; (d) the employee must customarily and regularly
exercise discretionary powers; and (e) with certain limited exceptions,
the employee must not devote more than 20 percent (40 percent in retail
and service establishments) of his or her hours of work to activities
which are not closely related to the work described in (a) through (d).
The commenter took a portion of the test out of context, citing
only one clause from factor (c) relating to the employee's authority to
make recommendations and suggestions about personnel actions. In fact,
the standard is quite stringent in that all five factors must be
satisfied. Thus, for example, in a case under the FLSA, Assistant
Managers in a fast-food restaurant were determined not to be executives
because, despite many management responsibilities, they spent more than
40 percent of their time on production duties. Donovan v. Burger King,
675 F.2d 516 (2nd Cir., 1982). Similarly, a Warehouse Manager for a
retail shoe chain was found to fall outside the ``executive'' exemption
of the FLSA because he did not regularly exercise discretionary powers,
and because the employer was unable to demonstrate that the Manager did
not devote more than 20 percent of his working hours to activities not
related to the performance of the work described in factors (a) through
(d). Wirtz v. C&P Shoe Corp., 336 F.2d (5th Cir., 1964). Accordingly,
OFCCP has decided to adopt the definition of ``executive and top
management'' as proposed.
Throughout the equal opportunity clause, and elsewhere in the
regulation, we have used the term ``local employment service office''
to refer to the office with which jobs must be listed. This is the same
term used in the statute. A proposed definition of the term
``appropriate local office of the state employment service system'' has
been dropped as unnecessary, and the remaining definitions in section 6
of the equal opportunity clause have been renumbered accordingly.
[[Page 59634]]
Subpart C--Affirmative Action Program
Section 60-250.40 Applicability of the Affirmative Action Program
Requirement
One commenter objected to the proposed standard (which is also the
standard under the current rule) that the written affirmative action
program requirement applies only to contractors with 50 or more
employees and a contract of $50,000 or more. The commenter felt that
this was at odds with the statutory requirement that ``[a]ny contract
in the amount of $10,000 or more'' contain a provision requiring that
the contractor take affirmative action to employ and advance in
employment qualified special disabled and Vietnam era veterans.
OFCCP does not agree that the two provisions are at odds. All
nonexempt contractors, that is, all contractors with a contract of
$10,000 or more, are subject to the basic nondiscrimination and
affirmative action requirements of VEVRAA. These requirements include
the duty to list job vacancies with a local employment service office.
In addition, those contractors who meet the stated 50 employee/$50,000
contract threshold must prepare a written affirmative action program.
The written AAP contains additional affirmative action obligations for
larger contractors with larger contracts, such as undertaking specified
outreach and positive recruitment activities. See, for example,
Sec. 60-250.44(f). Accordingly, the rule is adopted as proposed.
Section 60-250.42 Invitation to Self-identify
On May 1, 1996, OFCCP published an interim rule amending Sec. 60-
250.5(d) of the then-current regulations relating to invitations to
self-identify. The interim rule was intended to conform the invitation
to self-identify requirement under VEVRAA with the requirement
contained in the Section 503 final rule. The rule was published in
response to concerns raised by representatives of Government
contractors that if contractors were faced with a self-identification
requirement under VEVRAA that was different than the requirement under
Section 503, each contractor would have to revise its forms, notices
and posters when the Section 503 final regulations took effect, and
then change those same forms, notices and posters again when OFCCP
promulgated its revisions to the VEVRAA regulations.
The NPRM published on September 24, 1996, mirrored the VEVRAA
interim rule and the Section 503 final rule. It required the
contractor, after making an offer of employment and before the
applicant began his or her employment duties, to invite applicants to
identify themselves as special disabled or Vietnam era veterans in
order to benefit from the contractor's affirmative action program. As
an exception to the general requirement that the invitation be extended
after an offer of employment, the proposal permitted a pre-offer
invitation in two limited circumstances: if the invitation was made
when the contractor actually was undertaking affirmative action at the
pre-offer stage; or if the invitation was made pursuant to a Federal,
state or local law requiring affirmative action for special disabled or
Vietnam era veterans. This approach was intended to be consistent with
Sec. 1630.14(b) of the EEOC's regulations, and the EEOC's October 10,
1995, ``ADA Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations.''
The proposal also required that the contractor maintain a separate
file on applicants and employees who identified themselves as covered
disabled veterans or Vietnam era veterans, and provide that file to
OFCCP upon request. Finally, the proposal provided that if an applicant
identified himself or herself as a special disabled or Vietnam era
veteran, the contractor should seek the advice of the applicant
regarding proper placement and appropriate accommodation, after a job
offer had been extended.
Two comments were submitted in response to the May 1, 1996, interim
rule. One of the interim rule commenters also commented on the NPRM,
and two additional comments were submitted in response to the NPRM.
Finally, five organizations expressed views on the proposal in a
meeting with OFCCP held during the comment period.
The five organizations felt that the proposed limitations on pre-
offer invitations to Vietnam era veterans were unduly restrictive. They
asserted that in most instances a contractor would be aware of an
applicant's veteran status at the pre-offer stage, because the
applicant would include this information in his or her employment
history, or because of priority referral from the job listing program.
The organizations advocated that, with respect to Vietnam era veterans,
the invitation to self identify should be mandatory at the pre-offer
stage so that contractors could take affirmative action specific to
Vietnam era veterans in the employment process. Upon consideration, we
agree that limiting the invitation to Vietnam era veterans to the post-
offer stage is unduly restrictive. The disability discrimination
concerns embodied in the ADA (which justify restrictions on the timing
of invitations extended to special disabled veterans) do not apply to
Vietnam era veterans.
On the other hand, we are reluctant to require that the invitation
be extended pre-offer, because to do so would mandate that contractors
extend invitations at two different times--a pre-offer invitation to
Vietnam era veterans and a post-offer invitation to special disabled
veterans. This would potentially be confusing and seemingly over-
technical, particularly for smaller employers.
Accordingly, the final rule contains separate invitation to self-
identify provisions for special disabled veterans and for Vietnam era
veterans. Paragraph (a) covers the invitation that is to be extended to
special disabled veterans. It requires, with two limited exceptions,
that the invitation be extended after a job offer has been made and
before the individual begins his or her employment duties. The
exceptions are that the invitation may be extended pre-offer when: the
invitation is made when the contractor actually is undertaking
affirmative action for special disabled veterans at the pre-offer
stage; or the invitation is made pursuant to a Federal, state or local
law requiring affirmative action for special disabled veterans. In this
context, the reference to Federal law means a law other than one
enforced by OFCCP (i.e., Section 503 and VEVRAA). Following are
examples which illustrate the application of each exception:
Special disabled veteran example: A contractor establishes a job
training program to train disabled veterans for high paying technical
jobs like those at the contractor's establishment. The initial phase of
the training program is a six-month classroom component. The contractor
pays all costs for the classroom training, and pays the participants
the minimum wage during this period. After completion of classroom
training, all trainees participate in a six-month work-study phase of
the program. During the work-study phase, participants are regarded as
temporary trainee-employees of the contractor. The contractor hires
graduates of the program as permanent employees, if openings exist when
the training is complete. Program participants whom the contractor is
unable to hire have acquired education and job experience that will
assist them in obtaining skilled employment as technicians elsewhere.
The contractor's initial decision to accept an individual into the
program is also a decision to employ that person as
[[Page 59635]]
a temporary employee during the classroom and work-study phases of the
program. Under the general rule stated at Sec. 60-250.42(a), the
contractor could not ask program applicants to disclose whether they
are disabled veterans because the question would be a pre-offer
disability-related inquiry. However, the contractor's program is a
voluntary affirmative action program that satisfies the exception at
Sec. 60-250.42(a)(1). The contractor's program is a specific and fully
implemented affirmative action effort, which is not required by any
Federal, state or local law. The affirmative action program requires
the identification of disabled veterans prior to extending an offer to
participate in the program, because the information is necessary for
determining whether the applicant is eligible to participate in the
program.
Federal, state or local law example: A state statute requires that
state government jobs be filled in the following fashion. Applicants
who meet basic eligibility requirements take a competitive examination.
The names of applicants who pass the examination are placed on a list
of eligible applicants in the following order: (1) disabled veterans;
(2) veterans; (3) widows of veterans who were killed in action; (4) all
others in order of their test scores. When job openings occur the
selecting official is provided the names of the top five applicants
from the list to interview for employment. All five applicants are
interviewed before a job offer is extended.
The state statute expressly requires affirmative action in the form
of according top priority to disabled veterans for placement on a list
of eligibles. In order to implement the priority accorded disabled
veterans, state officials must be able to determine whether an
applicant is a disabled veteran prior to extending a job offer. The
state's program fits within the exception at Sec. 60-250.42(a)(2).
Therefore, it is not a violation of VEVRAA (or of Section 503 or the
ADA) for state hiring officials to invite applicants to self-identify
as a special disabled veteran prior to extending an offer of
employment.
Paragraph (b) covers invitations to veterans of the Vietnam era. It
specifies that the invitation may be made at any time before the
applicant begins his or her employment.
This approach necessitated some modification of Appendix B, which
contains a sample invitation to self-identify. We have amended the
Appendix to make it adaptable to situations in which a contractor
extends an invitation to Vietnam era veterans separately from its
invitation to special disabled veterans, as well as when the contractor
extends a single invitation to both categories of veterans.
One comment on the interim rule expressed concerns about the
separate file requirement contained in subsection (d)(4). The
commenter, an agency of a state government, felt that the requirement
that contractors maintain a separate file on persons who have self-
identified and provide the file to OFCCP upon request, ``creates an
undue burden on covered contractors, without any appreciable benefit to
the class Sec. 60-250 was intended to protect.'' OFCCP disagrees that
the requirement to maintain separate files results in an increased
recordkeeping burden for contractors. As explained in the preamble to
the interim rule:
OFCCP believes that a number of contractors may already have
maintained separate files on such applicants and employees in order
to implement the VEVRAA confidentiality requirements. In addition,
the ADA presently requires employers with 15 or more employees to
maintain on separate forms and in separate medical files information
obtained regarding the medical condition or history of applicants
and to treat this information as confidential medical records (42
U.S.C. 12112(d)(3)(B); 29 CFR 1630.14(b)(1)). Furthermore, because
the invitation to self-identify is only required by the interim rule
to occur after a job offer has been made, and not to all applicants,
there will be fewer records of self-identification being generated
than in the past.
Moreover, because the ADA requires that information regarding the
medical condition or history of applicants be kept in separate files,
OFCCP cannot impose a different standard with regard to disabled
veterans under VEVRAA.
The second commenter on the interim rule addressed the portion of
proposed subsection (d)(4) that provided that if an applicant
identifies himself or herself as an individual with a disability, the
contractor should seek the advice of the applicant regarding proper
placement and appropriate accommodation, after a job offer has been
extended. The commenter asserted that if an applicant self-identified
at the pre-offer stage, the contractor apparently cannot discuss
accommodation at that stage unless the applicant first raises the
issue. The commenter then opined that this imposed an additional burden
as well as a more stringent restriction on Federal contractors under
VEVRAA than the EEOC imposes under the ADA. Specifically, the commenter
asserted that the EEOC's enforcement guidance permits an employer to
ask an applicant questions regarding possible reasonable
accommodations: (1) If the employer believes the applicant will need
accommodation because of an obvious disability; (2) if the employer
believes the applicant will need accommodation because of a hidden
disability that the applicant has voluntarily disclosed; or (3) if the
applicant has voluntarily disclosed to the employer that he or she
needs accommodation. In the commenter's view OFCCP's interim rule
permitted pre-offer discussion of accommodations only in the third
instance mentioned above.
We disagree with the commenter's interpretation of the rule. The
rule recommends that contractors make certain inquiries after tendering
an offer of employment, but the rule does not prohibit inquiries before
a job offer when the contractor becomes aware of the need for
accommodation at the pre-offer stage. OFCCP intends that its
regulations under Section 503 and VEVRAA be interpreted in a manner
which is consistent with the EEOC's interpretations of the ADA.
Accordingly, pre-offer discussion of accommodations would be
permissible under VEVRAA in the same circumstances as those in which it
would be permissible under the ADA.
The same commenter also submitted comments in response to the NPRM.
Those comments requested that OFCCP provide ``clear guidance'' as to
what is meant by ``actually taking affirmative action at the pre-offer
stage.'' Consistent with interpretations made by the EEOC under the
ADA, ``actually taking affirmative action at the pre-offer stage''
refers to an employer voluntarily using the information obtained in
response to an invitation to self-identify, to benefit special disabled
veterans. If an employer wishes to invoke this exception, it must
provide affirmative action at the pre-offer stage that necessitates the
identification of special disabled veterans. The example provided
earlier in this discussion should help to illustrate the point.
The commenter also requested ``clear guidance'' as to what is meant
by ``before the applicant begins his or her job [employment] duties.''
By this we mean that the invitation to self identify must be made
before the applicant is placed on the contractor's payroll.
Another commenter pointed out that, as proposed, the rule would
require contractors to discuss reasonable accommodation with all who
self identify as either special disabled veterans or veterans of the
Vietnam era. The commenter asserted, ``by encompassing Vietnam-era
veterans, this provision presupposes that all Vietnam-era veterans are
likely to require some form of accommodation to
[[Page 59636]]
be employable.'' The point is well taken. Reasonable accommodation is
relevant in the context of special disabled veterans, but generally not
in the context of Vietnam era veterans. We have modified the rule
accordingly, and have made corresponding modifications to the sample
invitation to self-identify found at Appendix B.
The same commenter also was concerned that self-identification,
coupled with the provision that permits an employer to ask an applicant
to demonstrate how the applicant will be able to perform job-related
functions, could result in an employer ``withdraw[ing] the job offer on
the pretense that the veteran couldn't perform some aspect of the job
when asked to ``demonstrate.'''' The commenter than asked, ``[w]ho
couldn't be deemed to fail some task they'd never done before?'
As proposed, the literal wording of the rule was ambiguous as to
whether a contractor would be permitted to require a demonstration from
both Vietnam era and special disabled veterans, or only from the
latter. The context of the proposal, specifically the reference to
inquiries that are consistent with the ADA, makes clear, however, that
our intent was to apply this standard with respect to special disabled
veterans only. We have revised the rule to clarify the point.
Turning more directly to the commenter's concern, the concept of
requiring an applicant with a known disability to demonstrate his or
her ability to perform the job is drawn directly from the ADA, and
OFCCP intends to apply it consistent with its application under the
ADA. The EEOC Guidance on this subject explains that an employer may
require a disabled applicant to demonstrate how he or she will perform
the job only when: (1) the employer could reasonably believe that the
applicant would not be able to perform a job function due to a known
disability; or (2) all applicants in the job category (i.e., including
those who are not disabled) are asked to demonstrate how they would
perform the job. Thus, an employer need not hire someone who, even with
accommodation, cannot perform the essential functions of the job. On
the other hand, an employer may not use the demonstration requirement
to discriminatorily deny an individual employment simply because that
individual is disabled.
Another commenter was concerned that the proposed restrictions on
pre-offer self-identification could preclude contractors from asking
questions about military service on employment applications or in
employment interviews. As the commenter pointed out, a normal
employment application asks about military service and the reason for
leaving or the type of discharge, and military service also is a common
topic in employment interviews. However, such questions may elicit
information that identifies an applicant as a special disabled or a
Vietnam era veteran. The commenter asserted restricting such inquiries
would require radical revision in the application process among United
States employers.
The ADA prohibits employers from asking about the existence,
nature, or severity of a disability at the pre-offer stage. The EEOC's
October 10, 1995, Enforcement Guidance on Preemployment Disability-
Related Inquiries and Medical Examinations defines such an inquiry as
one that is likely to elicit information about a disability. On the
other hand, according to the EEOC Guidance, if there are many possible
answers to a question and only some of those answers would contain
disability-related information, the question is not disability-related.
It is our intent that the VEVRAA rule be applied consistent with this
standard. Under this interpretation, it would be permissible for an
employer to inquire about an applicant's military service, including
the reason for leaving or the type of discharge. This is because the
large majority of those discharged from the military are discharged for
reasons other than medical, and even among those discharged for medical
reasons not all would qualify as special disabled veterans under VEVRAA
or as individuals with disabilities under the ADA and Section 503. If
the applicant's response indicated a discharge for medical reasons, the
employer would not be permitted to ask follow-up questions relating to
the nature or extent of the medical condition. However, if the response
caused the employer to reasonably believe that the applicant may need
an accommodation, the employer may inquire about that need.
The same commenter also expressed concern that a contractor
electing to invite individuals to self-identify at the pre-offer stage
might violate the ADA, which generally prohibits pre-offer inquiries as
to whether an individual has a disability. The commenter sought further
guidance on this issue.
As we have stated above, our intent is that this rule be applied
consistently with the ADA. The limited instances of pre-offer self-
identification permitted by the regulation should not result in
violation of the ADA. The ADA expressly does not preempt other Federal,
state or local laws that provide greater or equal protection for the
rights of individuals with disabilities than are provided in the ADA.
42 USC 12201(b). Therefore, the provision permitting pre-offer
invitations to self-identify directed to special disabled veterans,
when required by a Federal, state or local law requiring affirmative
action, would not violate the ADA. Similarly, a contractor actually
undertaking affirmative action for special disabled veterans pursuant
to VEVRAA at the pre-offer stage would not violate this provision of
the ADA.
Finally, staff from the Department's Office of the Assistant
Secretary of Labor for Veterans' Employment and Training (OASVET) have
asked that we clarify one additional point. The restrictions on the
timing of the invitation to self-identify that appear in the
regulation, are completely unrelated to pre-application recruitment
activities. Accordingly, it would not violate VEVRAA, Section 503 or
the ADA, for an employer to advertise that it encourages applicants who
are special disabled or Vietnam era veterans, or to otherwise direct
its recruitment efforts at members of those two groups.
Section 60-250.44 Required Contents of Affirmative Action Programs
The regulations being replaced today, at Sec. 60-250.6(b), specify
that ``[c]ontractors shall review their personnel processes to
determine whether their present procedures assure careful, thorough and
systematic consideration of the job qualifications' of special disabled
and Vietnam era veterans. Section 60-250.44(b) of the NPRM stated the
obligation as follows: ``[t]he contractor shall ensure that its
personnel processes provide for careful, thorough, and systematic
consideration of the job qualifications'' of special disabled and
Vietnam era veterans. One commenter felt that the duty to ``ensure'' as
stated in the NPRM required a ``different mandate'' than the duty to
``review'' as stated in the rule that was current at that time. We
disagree. When read in full context, the regulation being replaced
today requires that contractors do more than simply examine their
processes. If affirmative action is to have any meaning, it surely
requires that contractors take steps to reform those processes that,
upon review, are found not to meet the stated standard of assuring
careful, thorough and systematic consideration.
Two commenters addressed the obligation in proposed Sec. 60-
250.44(d), that contractors inquire whether an employee with a known
disability who is having difficulty performing a job is in need of
accommodation. One commenter characterized the obligation
[[Page 59637]]
as: (1) conflicting with the EEOC's guidance under the ADA which
``gives the employee primary responsibility for requesting an
accommodation''; (2) conflicting with the spirit of the ADA which
``empowers individuals with disabilities to choose to--or choose not
to--ask for help''; and (3) ``paternalistic,'' ``potentially insulting
and embarrassing to the individual,'' and liable to ``be perceived by
special disabled veterans as prejudicial, because the employer has
distinguished employees with disabilities from employees who do not''
have disabilities.
The other commenter read the provision as potentially requiring
identification of special disabled veterans prior to the job offer,
accommodation in the application process, and post-offer disability-
related questions directed to only some entering employees, all of
which the commenter thought were problematic under the ADA.
We do not share the commenters' views on this issue. Affirmative
action, of which this provision is an example, is unique to VEVRAA and
Section 503, and includes actions above and beyond those required as a
matter of nondiscrimination. Also, by specifying ``employee,'' the
provision does not conflict with the ADA restrictions relating to pre-
offer, and post-offer but pre-employment, inquiries. Moreover, the rule
does not undermine the concept of individuals with disabilities being
able to choose not to ask for help. That is, the rule requires that the
employer make inquiry, but it does not require a particular response
from the employee. Additionally, contrary to this type of employer
inquiry being prohibited by the ADA, it is permitted by the EEOC's
interpretive materials. See 29 CFR Part 1630, Appendix, Section 1630.9.
Finally, we are sensitive to the concern that employers not be
required to take actions which might be offensive to their employees
with disabilities. However, we disagree with the commenter that the
provision in question here crosses that line. It is instructive to note
that OFCCP did not receive a single objection to this provision from a
commenter that might be characterized as a veteran or an individual
with disabilities, nor from a group representing veterans or
individuals with disabilities. Similarly, OFCCP did not receive a
single objection from any of these categories of commenters when it
proposed the corresponding provision in its Section 503 NPRM. See 57 FR
48084 (October 21, 1992), corrected at 57 FR 49160 (October 30, 1992).
OFCCP has made one minor alteration to the text of Sec. 60-
250.44(d) for clarification. Language has been inserted to specify that
the obligation to provide reasonable accommodation is an element of
nondiscrimination, whereas the obligation to notify the employee of a
performance problem and inquire whether the problem is related to
disability is an element of affirmative action.
One commenter objected to the requirement in proposed Sec. 60-
250.44(e) that contractors ``develop and implement procedures to
ensure'' that employees are not harassed because of their status as
special disabled and Vietnam era veterans. The commenter felt that the
requirement was unnecessary and impractical, adding that it is almost
impossible for an employer to guarantee that an employee will not act
inappropriately. But that is not what the regulation requires. The rule
simply requires that contractors develop and implement procedures that
are designed to ensure that disabled and Vietnam era veteran employees
will not be harassed.
Proposed Sec. 60-250.44(f) required that contractors undertake
appropriate outreach and recruitment activities, and enumerated eight
suggested activities. The proposed section's introductory provision
stated that the scope of the contractor's efforts ``shall depend upon
all the circumstances,'' and that ``[i]t is not contemplated that the
contractor will necessarily undertake all the activities listed . . .
or that its activities will be limited to those listed.''
One commenter objected to proposed subsection (f)(8), which would
have provided that contractors, in making hiring decisions, should
consider special disabled and Vietnam era veterans for all available
positions for which they may be qualified, when the position(s) applied
for is unavailable. The commenter felt that ``the requirement'' is
onerous, in that it would require contractors to set up two application
processes--one for covered veterans and one for all other applicants--
and it would force contractors to review applicants' files numerous
times in an effort to consider applicants for other jobs. Paragraph
(f)(8) does not establish a ``requirement.'' As is outlined above it is
a suggested measure, which contractors may take, or not take, as
appropriate under the circumstances. Accordingly, we do not share the
commenter's concerns about the provision.
Section 60-250.44(j) of the proposal would have required that all
personnel involved in the recruitment, screening, selection, promotion,
disciplinary, and related processes be trained to ensure that the
commitments in the contractor's affirmative action program are
implemented. One commenter objected to the provision, declaring that
``[t]he proposed mandatory training requirement suggests that OFCCP
desires training above and beyond'' the current requirement. The
commenter described the requirement in effect at that time as
``employees of federal contractors are instructed on the requirements
of VEVRAA.'' However, the wording of proposed Sec. 60-250.44(j) is
virtually identical to the wording of Sec. 60-250.6(i)(3) in the
regulations being replaced today. Accordingly, no substantial change
was intended and the rule is adopted as proposed.
Subpart D--General Enforcement and Complaint Procedures
Section 60-250.60 Compliance Evaluations
As proposed, paragraph (a) of this section would have clarified
existing regulatory authority for OFCCP to conduct compliance reviews
with regard to contractors' implementation of their affirmative action
obligations, and would have provided that the review consist of ``a
comprehensive analysis and evaluation'' of all relevant practices. The
proposal was intended to make the VEVRAA provision consistent with the
corresponding provision in the Section 503 regulations. One commenter
noted that the proposal did not track a proposed revision to the
regulations implementing Executive Order 11246, under which OFCCP
proposed to supplement the ``comprehensive analysis'' approach with a
variety of alternative means of assessing a contractor's compliance
status. See proposed Sec. 60-1.20(a) at 61 FR 25516, 25523 (May 21,
1996). The commenter recommended that ``[t]he proposed Sec. 60-250.60 *
* * be modified to clarify that OFCCP is not required to conduct a
full, on-site compliance review of any contractor it selects for
review.''
Since the publication of the VEVRAA proposal, OFCCP has promulgated
a final version of its Executive Order 11246 ``compliance evaluation''
procedure. See 41 CFR 60-1.20(a) at 62 FR 44174, 44189 (August 19,
1997). As recommended by the commenter, OFCCP has decided to adopt the
compliance evaluation approach for VEVRAA as well, in lieu of the
proposed ``comprehensive analysis'' compliance review approach.
(Corresponding wording changes have been made, as appropriate,
throughout the regulations.) The new VEVRAA
[[Page 59638]]
regulatory text is virtually identical to the text of the Executive
Order regulation, except for changes necessary to reflect differences
between the two laws and their implementing regulations. This approach
will improve the efficiency of OFCCP and permit the agency to target
resources better. It will also further procedural consistency among the
laws enforced by OFCCP.
The same commenter also recommended that the regulations be changed
``to insure that OFCCP may not arbitrarily demand that a federal
contractor produce anything the agency wants, at any time it wants, at
any location it wants.'' The commenter asserted that many contractors
have faced ``seemingly endless requests for information under current
regulations,'' and that ``[c]ontractors now have no recourse when
confronted with endless requests for information.'' The commenter also
asserted that OFCCP should establish in the regulation a definite time
period within which the compliance evaluation should be completed. Such
a time limit, the commenter argued, would help both OFCCP and the
contractor to focus their efforts on supplying and reviewing definite
records, and reduce piecemeal requests.
OFCCP does not agree that the regulations should contain additional
assurances of the type requested. Under the proposed rule access is
limited to records that may be relevant to the matter under
investigation and pertinent to compliance with VEVRAA. Moreover, the
suggestion that OFCCP should be limited to one or a small number of
data requests ignores the reality of conducting a law enforcement
investigation. The initial data request often is intentionally
restricted in scope, to minimize the burden on the responding party.
However, if the materials provided in response to the initial request
indicate potential problem areas, it is perfectly reasonable and
appropriate for the agency to follow up with supplementary requests.
Several rounds of supplementary requests may be necessary before the
agency can definitively conclude that a violation did, or did not,
occur. Contractors may expect that the currently prescribed time frames
for completing compliance evaluations and reviews will continue.
However, in OFCCP's view such time frames are more appropriately
included in a compliance manual than in implementing regulations.
In addition, we have revised subsection (c) to reflect the terms of
a Memorandum of Understanding entered into on May 29, 1997, between
OFCCP and OASVET. The proposal provided that during a compliance review
OFCCP would verify whether the contractor has filed its annual
Veterans' Employment Report (VETS-100 Report) with OASVET and that
OFCCP would notify OASVET if the contractor has not filed. We have
added to the regulation a provision under which, if the contractor has
not filed its report, OFCCP will request a copy from the contractor. If
the contractor fails to provide a copy of the report to OFCCP, OFCCP
will notify OASVET.
Section 60-250.61 Complaint procedures
Two commenters opposed our proposal under Sec. 60-250.61(a) that
the time for filing a complaint with OFCCP be expanded from 180 to 300
days after the alleged violation. Both felt that the current 180-day
rule is more in keeping with the standard under Title VII and the ADA,
both of which require filing within 180 days in non-deferral
jurisdictions and 300 days in deferral jurisdictions. Additionally, one
of the commenters argued that the 300-day filing period in deferral
jurisdictions was developed for the convenience of the states, not the
Federal enforcement agencies.
OFCCP recently considered this question in detail in conjunction
with the preparation of the Section 503 final rule. In that rule we
adopted a 300-day standard, based upon a desire to establish a uniform
national standard that would be at least as long as the complaint
filing period under the ADA. We elected not to adopt the split 180/300-
day limit applied under the ADA because we are not statutorily bound to
do so (as is the EEOC under Title VII and the ADA), and because the
lack of a frequently updated and readily available list of deferral
jurisdictions could make it difficult for complainants and contractors
to know whether the 180 or the 300-day limit applies in any particular
case. In line with OFCCP's approach of applying consistent procedures
under Section 503 and VEVRAA wherever possible, we hereby adopt the
proposed rule's standard that complaints must be filed within 300 days.
Section 60-250.61(b)(2) Contents of Complaints--Third Party Complaints
One commenter objected to this paragraph of the proposal, which
provided in part that a complaint filed by an authorized representative
need not identify by name the person on whose behalf the complaint was
filed. The purpose of this provision is to help prevent retaliation
against persons seeking to exercise their rights under VEVRAA. The
commenter asserted that in some cases contractors would have difficulty
responding to the allegations of a complaint without knowing the
identity of the person on whose behalf it is filed.
In many cases it will not be necessary to disclose the individual's
identity to enable the contractor to respond effectively. For example,
as the commenter acknowledged, where the complaint alleges a broad
contractor policy or practice, the contractor will be able to respond
fully without knowing the name(s) of the person(s) on whose behalf the
complaint was filed. However, we agree that where the complaint
involves a practice with limited applicability or an isolated act of
discrimination, it may not be possible to protect the individual's
confidentiality. Therefore, the rule reflects that confidentiality will
be protected where possible, given the facts and circumstances in the
complaint.
Section 60-250.66 Sanctions and Penalties
Section 60-250.66(c) Debarment
The proposed paragraph would have authorized OFCCP to impose fixed-
term debarments. One commenter objected to the fixed-term debarment
concept. The commenter was concerned that fixed-term debarment is too
harsh a measure, especially if it is used in response to what the
commenter termed ``paper'' violations, which the commenter
characterized as violations of recordkeeping or affirmative action
requirements which do not involve discrimination. OFCCP does not view
fixed-term debarments as too harsh a measure, and OFCCP does not intend
to seek a fixed term debarment for minor, technical violations of the
law. Explicit regulatory authority to impose debarment for a minimum
fixed-term is necessary to ensure the continued future compliance of
some contractors.
OFCCP believes the fixed-term debarment sanction will be
particularly effective in encouraging compliance among the recalcitrant
contractors who repeatedly break their promises of future compliance
with respect to affirmative action and recordkeeping requirements.
OFCCP views affirmative action and recordkeeping requirements as
fundamental to VEVRAA compliance. These requirements provide the
foundation for the contractor's affirmative action efforts and provide
the basis for monitoring the contractor's compliance by both the
contractor and OFCCP.
[[Page 59639]]
The regulation being replaced today (at Sec. 60-250.50) requires a
showing that a debarred contractor will carry out employment policies
and practices in compliance with VEVRAA and its regulations as one of
the conditions of reinstatement. OFCCP traditionally has accepted a
contractor's promise of future compliance as sufficient to meet this
requirement. Unfortunately, OFCCP has found that, for some contractors,
a promise is not enough. The sanction of debarment for a fixed-term of
not less than six months but no more than three years establishes a
minimum trial period during which a contractor can demonstrate its
commitment and ability to establish personnel practices that will
ensure continuing compliance with the contractor's VEVRAA obligations.
See, e.g., OFCCP v. Disposable Safety Wear, 92-OFC-11 (Decision and
Final Administrative Order of the Secretary of Labor, September 29,
1992). The express recognition of fixed-term debarment in the
regulations is designed to put contractors on notice that an empty
promise of future compliance will not be a sufficient premise for
continued contracting with the Federal Government. Express regulatory
recognition of the sanction of fixed-term debarment will strengthen the
VEVRAA enforcement scheme by deterring contractors from engaging in
violations ``based on a cold weighing of the costs and benefits of
noncompliance.'' Janik Paving & Construction v. Brock, 828 F.2d 84 (2d
Cir. 1987). Accordingly, OFCCP has determined to retain in this final
rule the authority to impose fixed-term debarments.
Subpart E--Ancillary Matters
Section 60-250.80 Recordkeeping
Under the regulation being replaced today (Sec. 60-250.52(a)),
contractors are required to maintain for one year records relating to
complaints and actions taken by the contractor in connection with such
complaints. Paragraph (a) of proposed Sec. 60-250.81 would have revised
this obligation in two ways. First, it would have made the record
retention obligation applicable to any personnel or employment record
made or kept by the contractor, and set out a listing of examples of
the types of records that must be retained. Second, it would have
extended the required record retention period from one to two years for
larger contractors. In this context, larger contractors are those that
have 150 or more employees and a Government contract of $150,000 or
more. When a contractor has been notified that a complaint has been
filed, a compliance evaluation has been initiated or an enforcement
action has been commenced, the contractor would be required to preserve
all relevant personnel records until the final disposition of the
action. Three comments were received on proposed paragraph (a).
Two commenters criticized the two-year record retention period
proposed for larger contractors. The commenters questioned why OFCCP
should need to review two years' worth of records, when complaints must
be filed within 300 days and when a one-year retention period applies
under the ADA and Title VII. As one commenter put it, ``[t]he
responsibility and authority of OFCCP to investigate complaints under
VEVRAA is no greater or more encompassing than EEOC's responsibility to
investigate complaints under the ADA. Similarly, the data needed by
OFCCP to accomplish this purpose is no greater than that of the EEOC.''
One of the commenters also said that OFCCP had ``significantly
underestimate[d]'' the administrative and storage costs associated with
maintaining an additional year of records.
These comments incorrectly minimize the differences in the
enforcement schemes of EEOC and OFCCP. EEOC's enforcement of Title VII
and the ADA is triggered exclusively by charges, which must be filed
within 180 days (or, in deferral jurisdictions, 300 days) of an alleged
violation. EEOC's one-year retention period is designed to ensure that
relevant records are not discarded before the expiration of the
complaint filing period. In contrast, OFCCP's evaluations of
contractors' compliance with VEVRAA cover a two-year period. The
agency's policy and practice are to examine the contractor's personnel
policies and activities for the two years preceding the initiation of
the evaluation, and to assess liability for discriminatory practices
dating back two years. The two-year record retention period provides
greater assurance that relevant records will be available to OFCCP
during its compliance evaluations.
The commenter who asserted that OFCCP has underestimated the
burdens on contractors provided no data or other support for its
assertion. OFCCP continues to believe, as stated in the preamble to the
NPRM, that the recordkeeping provisions of this proposed rule are
consistent with those contained in the Section 503 final rule and
therefore do not result in recordkeeping burdens beyond those under the
Section 503 rule.
One commenter raised questions regarding the record retention
obligations of contractors who are at or near the thresholds that
trigger the different retention periods. Specifically, the commenter
asked what would happen if the employment levels or contract values
change so that they exceed or fall below the 150 employees/$150,000
thresholds during the course of the contract. A change in status
relating to either threshold would affect the record retention
obligation. If the number of employees should fall below 150 or if the
contractor no longer has a contract of at least $150,000, the
contractor would not be required to retain employment records for two
years. The requirement to keep records for two years would become
effective again on the date that the contractor met the thresholds of
150 employees and a contract of $150,000. The record retention
requirement, however, would not be applied retroactively, i.e., the
change from one year to two years would be phased in day-by-day. See
the discussion later in this section of the preamble regarding the
obligation to maintain records once a compliance evaluation has
commenced.
One commenter contended that the proposed regulatory language was
inadequate because it failed to answer contractors' recurrent questions
regarding what records must be kept. The commenter urged that the
regulations should include guidance on: (1) who is an ``applicant'' for
the purposes of the record retention requirement; and (2) whether and
to what extent the record retention requirement applied when a
contractor used electronic bulletin boards and the Internet as
recruitment sources.
OFCCP has issued the following guidance on the meaning of the term
``applicant'' under Executive Order 11246:
The precise definition of the term ``applicant'' depends upon [a
contractor's] recruitment and selection procedures. The concept of
an applicant is that of a person who has indicated an interest in
being considered for hiring, promotion, or other employment
opportunities. This interest might be expressed by completing an
application form, or might be expressed orally, depending upon the
[contractor's] practice. Question and Answer No. 15, Adoption of
Questions and Answers to Clarify and Provide a Common Interpretation
of the Uniform Guidelines on Employee Selection Procedures (44 F.R.
11996, 11998 (March 2, 1979)).
The Uniform Guidelines on Employee Selection Procedures do not apply to
VEVRAA. See Sec. 60-250.21(g)(2) of this rule. Nevertheless, the
statement quoted above represents a reasoned, balanced approach to the
question of who is an
[[Page 59640]]
applicant under VEVRAA, and hereby is adopted for that purpose.
Accordingly, whether an individual will be considered an applicant
turns on the employee selection procedures designed and utilized by the
contractor. OFCCP is studying the range of ways contractors are
utilizing electronic media in their employee selection processes and
intends to issue guidance responding to questions most frequently asked
by contractors regarding this issue.
One commenter expressed disapproval of the requirement that
contractors retain all relevant records once a compliance review,
complaint investigation or enforcement action has been initiated. This
commenter contended that the requirement was burdensome and
inequitable, particularly because the regulations lack a limitation on
the period of time in which OFCCP must complete a compliance review.
The purpose of this record retention requirement is to ensure that
OFCCP can obtain all relevant documents during a compliance evaluation,
complaint investigation or enforcement action. OFCCP appreciates the
commenter's concerns about the timely completion of compliance
evaluations but, as discussed earlier in this preamble, disagrees with
the assertion that the schedule should be codified in the regulations.
One commenter, a Federal agency, said that the recordkeeping
requirements increase both the number of contractors and subcontractors
that must maintain records, and the recordkeeping burden on each
contractor and subcontractor. As a result, the commenter recommended
that the increased burdens be submitted for approval to the Office of
Management and Budget under the Paperwork Reduction Act, and that a
Regulatory Flexibility Act analysis be conducted to address asserted
increases in the burden on small businesses.
The assertion that the rule increases the number of contractors and
subcontractors that must maintain records simply is incorrect. Coverage
thresholds are not being altered in any way. Moreover, as was stated in
the preamble to the NPRM, the recordkeeping provisions of this rule are
consistent with those already being applied under Section 503;
accordingly, this rule will not impose new recordkeeping burdens.
Nevertheless, we have submitted the requirements to the Office of
Management and Budget as is required under the Paperwork Reduction Act.
Subsection (c) of the rule states that the recordkeeping
requirements shall apply only to records made or kept on or after the
date on which OFCCP publishes in the Federal Register notice that the
Office of Management and Budget has cleared the requirements. When
OFCCP receives the clearance from OMB under the Paperwork Reduction Act
of 1995, which it expects to occur approximately 60 days after
publication of this final rule, we will revise subsection (c) to
specify the actual date on which the recordkeeping requirements take
effect.
Finally, in order that the section numbers in the VEVRAA rule
correspond to the numbers of counterpart regulatory provisions in the
Section 503 rules, we have renumbered this section as Sec. 60-250.80.
The section number in the NPRM was Sec. 60-250.81.
Except as mentioned above, the final rule adopts the record
retention provisions proposed in the NPRM without change.
Section 60-250.81 Access to Records
Each contractor is required to permit OFCCP access during normal
business hours to its places of business, books, records and accounts
for the purpose of investigating compliance with VEVRAA. OFCCP proposed
to add computerized records to the list of items which the contractor
must make available for inspection by OFCCP.
One commenter objected to the proposal regarding access to
computerized records. The commenter contended that the proposal would
allow unlimited access to sensitive information in a contractors' human
resource files, regardless of its relevancy to the contractor's
compliance with VEVRAA. The commenter requested that OFCCP modify the
proposal to clarify that contractors need only provide ``reasonable''
access, that data requests would be limited in scope to information
necessary to address specific compliance questions raised during the
evaluation, and that contractors would not be required to reprogram
their computers to comply with an OFCCP request. The commenter also
recommended that contractors be afforded an appeal process for use when
they believe a data request is unreasonable.
OFCCP's primary interest is that it have access during an
investigation to relevant data that already exists, whether in
computerized or other form. Accordingly, OFCCP intends to apply the
same standards for access to computerized records that it always has
applied regarding paper records.
The proposed rule would not have expanded the scope of records that
must be made available to OFCCP. Contractors already must give OFCCP
access to their ``books, records and accounts'' under the previous
regulations. The proposed regulation simply would have clarified that
``books, records and accounts'' includes those maintained in
computerized form.
The concern that the provision would permit, if not encourage,
unfettered access to confidential commercial proprietary data or
irrelevant information, is unjustified in OFCCP's view. Under the
proposed rule, as under the current regulation, access is limited to
records that may be relevant to the matter under investigation and
pertinent to compliance with VEVRAA. A further safeguard against broad
requests for irrelevant data is the provision that information obtained
under this regulation may be used only in connection with the
administration of VEVRAA and in furtherance of the purposes of the Act.
Incorporating an appeal process for use by contractors when they
disagree with a data request into the VEVRAA regulations at this time
would result in procedural inconsistencies between VEVRAA and Section
503, which in our view would not be in the best interest of either
contractors or OFCCP. Accordingly, OFCCP is considering this issue for
further action in the future.
The regulation is adopted in the final rule as proposed in the
NPRM, except that in order that the section numbers in the VEVRAA rule
correspond to the numbers of counterpart regulatory provisions in the
Section 503 rules, we have renumbered this section as Sec. 60-250.81.
The section number in the NPRM was Sec. 60-250.82.
Section 60-250.82 Labor Organizations and Recruiting and Training
Agencies
In order that the section numbers in the VEVRAA rule correspond to
the numbers of counterpart regulatory provisions in the Section 503
rules, we have renumbered this section as Sec. 60-250.82. The section
number in the NPRM was Sec. 60-250.83.
Section 60-250.83 Rulings and interpretations
In order that the section numbers in the VEVRAA rule correspond to
the numbers of counterpart regulatory provisions in the Section 503
rules, we have renumbered this section as Sec. 60-250.83. The section
number in the NPRM was Sec. 60-250.84.
Section 60-250.84 Responsibilities of Local Employment Service Offices
This section, which was numbered Sec. 60-250.80 in the NPRM, is
[[Page 59641]]
renumbered as Sec. 60-250.84. Also, the title of the section, and
corresponding text within the section, have been amended to reflect the
term ``local employment service office.''
Appendix B--Sample Invitation to Self-Identify
Proposed Appendix B would have contained a sample format that
contractors could use to satisfy their obligation under Sec. 60-250.42
to invite applicants to identify themselves as being covered under the
Act and wishing to benefit under the contractor's affirmative action
program. Paragraph d of the proposed sample invitation would have
informed the special disabled veteran applicant that self-
identification would assist the contractor in making accommodations to
the individual's disability, and then would have suggested that the
contractor insert a brief provision summarizing the relevant portion of
its affirmative action program.
A commenter suggested that it would be helpful to include in
paragraph d of the Appendix a cross reference to the relevant
subsection of Sec. 60-250.44. The implication of the comment is that
Sec. 60-250.44 contains a particular provision which details what
should be inserted in the invitation. That is not the case. Each
contractor's approach to affirmative action for special disabled
veterans, and each affirmative action program, is different; that is,
each is tailored to the contractor's unique circumstances. The
contractor should insert into its invitation information about its
affirmative action efforts that might be of benefit to covered
veterans.
As noted above, we have modified Appendix B to reflect comments
relating to Sec. 60-250.42. Specifically, consistent with the revision
to the regulation that permits contractors to invite Vietnam era
veterans and special disabled veterans to self identify at different
stages in the employment process, we have modified the Appendix so that
it can be used in a way that best fits the contractor's actual
practices relating to the timing of invitations to the two categories
of veterans. Further, we have modified the Appendix, in both content
and format, to enhance the user's understanding of whether particular
portions of the invitation apply to special disabled veterans, Vietnam
era veterans, or both.
Appendix C--Review of Personnel Processes
Proposed Appendix C would have set out an example of an appropriate
set of procedures that contractors could use to facilitate a review by
the contractor and the Government of the contractor's implementation of
its duty to evaluate its personnel processes pursuant to proposed
Sec. 60-250.44(b). (Section 60-250.44(b) requires the contractor to
ensure that its personnel processes provide for careful consideration
of the qualifications of applicants and employees, who are known to be
special disabled veterans or veterans of the Vietnam era, for
employment opportunities.)
Paragraphs 3 and 4 of proposed Appendix C would have instructed
contractors to attach or include a description of accommodations
considered or used for special disabled veterans to application forms
or personnel records. The EEOC commented that in most instances
descriptions of accommodations constitute medical information that must
be maintained in separate files and treated as confidential medical
records. Accordingly, the EEOC recommended that paragraphs 3 and 4 be
changed to require contractors to maintain descriptions of
accommodations considered or used in separate confidential medical
files.
We agree with the EEOC's recommendation and believe it is
consistent with Sec. 60-250.23(d) of this rule. Accordingly, we have
modified paragraphs 3 and 4 consistent with the comment. Moreover, in
order to maintain consistency between the VEVRAA and Section 503 rules,
in a companion document published today we also are modifying the
corresponding Appendix C to 41 CFR Part 60-741.
General Comments
Several comments addressed the regulatory proposal in general,
rather than focusing on any particular section of the NPRM.
One commenter questioned the continued need for VEVRAA, stating
that he did not ``think that any employment laws or regulations are
necessary any more pertaining to the Vietnam war'' and that the ADA
``should be sufficient to cover disabled vets.'' The commenter also
asserted that ``[c]omplying with the paper requirements of this Act are
costly, time consuming, and difficult to administer'' and that laws
like VEVRAA ``add an artificial cost to our products which puts U.S.
business at a disadvantage when competing with foreign companies.''
OFCCP believes that VEVRAA serves a valuable purpose in ensuring
that those who served their country are given opportunity to
participate in our economic system. Moreover, we note that at least
four times within the past seven years the Congress has acted to
reauthorize VEVRAA or expand its reach. See, e.g., Section 505 of P.L.
104-275, Section 702 of P.L. 103-446, Section 502 of P.L. 102-568, and
Section 1 of P.L. 102-16. OFCCP remains mindful, however, of concerns
about compliance burdens. OFCCP seeks to minimize the burdens
associated with compliance with VEVRAA by administering the statute, to
the extent reasonable, in tandem with the agency's administration of
Section 503.
One commenter suggested that publication of a final rule by OFCCP
would somehow violate ``due process'' because interested parties were
not given sufficient notice of assertedly ``massive, substantive
revisions'' and a ``total rewrite'' of the regulations. The commenter
supports its point by referring to two semi-annual regulatory agendas
in which OFCCP characterized the regulatory action under VEVRAA as
``nonsignificant,'' and by claiming that the published agendas for two
meetings of a Department of Labor Advisory Committee on Veterans'
Employment and Training did not note anything about the alleged
``extensive rewrite of 41 CFR 60-250.''
OFCCP disagrees with the commenter and believes that it has
followed all applicable rulemaking procedures. As is required under the
Administrative Procedure Act, OFCCP published the proposed rule for
public notice and comment. Despite an extended comment period of more
than three months' duration, only a small number of comments were
submitted on the proposal.
Moreover, OFCCP's designation of the regulatory action as
``nonsignificant'' is a term of art, referring to the categories used
in Executive Order 12866, rather than an indication of the importance
of the rule to OFCCP or to the regulated community. Under Executive
Order 12866, a ``significant'' regulatory action is one that is likely
to result in a rule that may: (1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the
[[Page 59642]]
President's priorities, or the principles set forth in Executive Order
12866. OFCCP's VEVRAA proposal clearly did not meet any of the
standards of a ``significant'' action. Accordingly, OFCCP's designation
of the action as ``nonsignificant'' was entirely appropriate, and was
entirely consistent with other agencies' entries in the semiannual
regulatory agendas.
Finally, OFCCP also does not agree with the commenter's
characterization of this rule as containing extensive substantive
revisions of the VEVRAA regulations. To be certain, we have changed the
format of the rules. We also have codified in these regulations some
concepts and procedures that heretofore existed only in judicial
rulings and OFCCP practice. However, the fundamental principles--
concepts such as the equal opportunity/affirmative action clause to be
inserted in all nonexempt contracts, the contents of written
affirmative action programs, the coverage thresholds for the AAP
requirement, and the complaint and enforcement procedures--remain
largely unchanged in this rule.
Regulatory Procedures
Executive Order 12866
The Department is issuing this rule in conformance with Executive
Order 12866. This rule has been determined not to be significant for
purposes of Executive Order 12866 and therefore need not be reviewed by
OMB. This rule does not meet the criteria of Section 3(f)(1) of
Executive Order 12866 and therefore the information enumerated in
Section 6(a)(3)(C) of that Order is not required.
This conclusion is based on the fact that this rule does not
substantively change the existing obligation of Federal contractors to
apply a policy of nondiscrimination and affirmative action in their
employment of qualified special disabled veterans and veterans of the
Vietnam era. For instance, although the rule generally conforms the
existing Section 4212 regulations' nondiscrimination provisions to the
Section 503 final rule published by the OFCCP, it does not
significantly alter the substance of the existing nondiscrimination
provisions.
Regulatory Flexibility Act
The rule clarifies existing requirements, and does not
substantively change existing obligations, for Federal contractors.
Accordingly, we certify that the rule will not have a significant
economic impact on a substantial number of small business entities.
Therefore, a regulatory flexibility analysis under the Regulatory
Flexibility Act is not required.
Unfunded Mandates Reform
Executive Order 12875--This rule will not create an unfunded
Federal mandate upon any State, local or tribal government.
Unfunded Mandates Reform Act of 1995--This rule will not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or increased expenditures by the private sector of $100 million
or more.
Paperwork Reduction Act
The information collection requirements under the VEVRAA
regulations being replaced today were covered by OMB control numbers
1215-0072 and 1215-0163. The new recordkeeping requirements contained
in this final rule have been submitted to the Office of Management and
Budget (OMB) for clearance under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). These new recordkeeping requirements are not
effective until OFCCP displays currently valid OMB control numbers.
When OMB completes its review OFCCP will publish a notice in the
Federal Register regarding the control numbers.
In the Preamble to the NPRM OFCCP explained that the rule: would
extend the current one-year record retention period to two years (for
larger contractors) and make the retention obligation applicable to a
broader range of records; require that, for purposes of
confidentiality, medical information obtained regarding the medical
condition or history of any applicant or employee be collected and
maintained on separate forms and in separate medical files; and require
those contractors who, for affirmative action purposes, choose to
invite applicants to identify themselves as special disabled veterans
or veterans of the Vietnam era to maintain a separate file on such
applicants and employees.
OFCCP stated that the recordkeeping provisions of the rule were
consistent with those contained in the Section 503 final rule.
Therefore, OFCCP stated, although the recordkeeping provisions would be
more expansive than those in the current VEVRAA regulations, they would
not result in increased recordkeeping burdens.
OFCCP invited the public to comment on the accuracy of the agency's
estimates regarding the burdens posed by the proposed revisions to the
information collection requirements, and to suggest ways of minimizing
the burden and enhancing the quality and utility of the information
collected. None of the commenters responded to this request for
comments. Several commenters, however, expressed general opinions about
the burdens associated with the record retention requirements in their
comments directed toward particular regulatory provisions. We have
addressed those comments in our discussion of those regulatory
provisions. After careful consideration of the comments, OFCCP
continues to believe that the recordkeeping provisions in this rule
will not result in increased burdens.
List of Subjects in 41 CFR Part 60-250
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, Reporting
and recordkeeping requirements, Veterans.
Signed at Washington, DC, this 26th day of October, 1998.
Alexis M. Herman,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
Accordingly, with respect to the rule amending 41 CFR Chapter 60
published on December 30, 1980 (45 FR 86216), which was delayed
indefinitely at 46 FR 42865, the revision of Part 60-250 is withdrawn,
and in Part 60-30, all references to Section 402 of the Vietnam Era
Veterans' Readjustment Assistance Act are withdrawn; and, under
authority of 38 U.S.C. 4212, Title 41 of the Code of Federal
Regulations, Chapter 60 is amended by revising part 60-250 to read as
follows:
PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED
VETERANS AND VETERANS OF THE VIETNAM ERA
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-250.1 Purpose, applicability and construction.
60-250.2 Definitions.
60-250.3 [Reserved]
60-250.4 Coverage and waivers.
60-250.5 Equal opportunity clause.
[[Page 59643]]
Subpart B--Discrimination Prohibited
60-250.20 Covered employment activities.
60-250.21 Prohibitions.
60-250.22 Direct threat defense.
60-250.23 Medical examinations and inquiries.
60-250.24 Drugs and alcohol.
60-250.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-250.40 Applicability of the affirmative action program
requirement.
60-250.41 Availability of affirmative action program.
60-250.42 Invitation to self-identify.
60-250.43 Affirmative action policy.
60-250.44 Required contents of affirmative action programs.
Subpart D--General Enforcement and Complaint Procedures
60-250.60 Compliance evaluations.
60-250.61 Complaint procedures.
60-250.62 Conciliation agreements and letters of commitment.
60-250.63 Violation of conciliation agreements and letters of
commitment.
60-250.64 Show cause notices.
60-250.65 Enforcement proceedings.
60-250.66 Sanctions and penalties.
60-250.67 Notification of agencies.
60-250.68 Reinstatement of ineligible contractors.
60-250.69 Intimidation and interference.
60-250.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-250.80 Recordkeeping.
60-250.81 Access to records.
60-250.82 Labor organizations and recruiting and training agencies.
60-250.83 Rulings and interpretations.
60-250.84 Responsibilities of local employment service offices.
60-250.85 Effective date.
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
Appendix B to Part 60-250--Sample Invitation To Self-Identify
Appendix C to Part 60-250--Review of Personnel Processes
Authority: 29 U.S.C 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3
CFR, 1971-1975 Comp., p. 841).
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec. 60-250.1 Purpose, applicability and construction.
(a) Purpose. The purpose of the regulations in this part is to set
forth the standards for compliance with the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or
VEVRAA), which requires Government contractors and subcontractors to
take affirmative action to employ and advance in employment qualified
special disabled veterans and veterans of the Vietnam era.
(b) Applicability. This part applies to all Government contracts
and subcontracts of $10,000 or more for the purchase, sale or use of
personal property or nonpersonal services (including construction):
Provided, That subpart C of this part applies only as described in
Sec. 60-250.40(a). Compliance by the contractor with the provisions of
this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily
determine its compliance with this part.
(c) Construction--(1) In general. The Interpretive Guidance on
Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101,
et seq.) set out as an appendix to 29 CFR Part 1630 issued pursuant to
Title I may be relied upon for guidance in interpreting the parallel
provisions of this part.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any state or political subdivision that provides greater or
equal protection for the rights of special disabled veterans or
veterans of the Vietnam era as compared to the protection afforded by
this part. It may be a defense to a charge of violation of this part
that a challenged action is required or necessitated by another Federal
law or regulation, or that another Federal law or regulation prohibits
an action (including the provision of a particular reasonable
accommodation) that would otherwise be required by this part.
Sec. 60-250.2 Definitions.
(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act
of 1974, as amended, 38 U.S.C. 4212.
(b) Equal opportunity clause means the contract provisions set
forth in Sec. 60-250.5, ``Equal opportunity clause.''
(c) Secretary means the Secretary of Labor, United States
Department of Labor, or his or her designee.
(d) Deputy Assistant Secretary means the Deputy Assistant Secretary
for Federal Contract Compliance of the United States Department of
Labor, or his or her designee.
(e) Government means the Government of the United States of
America.
(f) United States, as used in this part, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
(g) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(h) Contract means any Government contract or subcontract.
(i) Government contract means any agreement or modification thereof
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term Government contract does not include agreements
in which the parties stand in the relationship of employer and
employee, and federally assisted contracts.
(1) Modification means any alteration in the terms and conditions
of a contract, including supplemental agreements, amendments and
extensions.
(2) Contracting agency means any department, agency, establishment
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Person, as used in this paragraph (i) and paragraph (l) of this
section, means any natural person, corporation, partnership or joint
venture, unincorporated association, state or local government, and any
agency, instrumentality, or subdivision of such a government.
(4) Nonpersonal services, as used in this paragraph (i) and
paragraph (l) of this section, includes, but is not limited to, the
following: Utility, construction, transportation, research, insurance,
and fund depository.
(5) Construction, as used in this paragraph (i) and paragraph (l)
of this section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other on-site functions incidental to the actual
construction.
(6) Personal property, as used in this paragraph (i) and paragraph
(l) of this section, includes supplies and contracts for the use of
real property (such as lease arrangements), unless the contract for the
use of real property itself constitutes real property (such as
easements).
(j) Contractor means, unless otherwise indicated, a prime
contractor or subcontractor holding a contract of $10,000 or more.
(k) Prime contractor means any person holding a contract of $10,000
or
[[Page 59644]]
more, and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' includes any person who has
held a contract subject to the Act.
(l) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under
any one or more contracts is performed, undertaken, or assumed.
(m) Subcontractor means any person holding a subcontract of $10,000
or more and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' any person who has held a
subcontract subject to the Act.
(n)(1) Special disabled veteran means:
(i) A veteran who is entitled to compensation (or who but for the
receipt of military retired pay would be entitled to compensation)
under laws administered by the Department of Veterans Affairs for a
disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been
determined under 38 U.S.C. 3106 to have a serious employment handicap;
or
(ii) A person who was discharged or released from active duty
because of a service-connected disability.
(2) Serious employment handicap, as used in paragraph (n)(1) of
this section, means a significant impairment of a veteran's ability to
prepare for, obtain, or retain employment consistent with such
veteran's abilities, aptitudes and interests.
(o) Qualified special disabled veteran means a special disabled
veteran who satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such veteran
holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position.
(p) Veteran of the Vietnam era means a person who:
(1) Served on active duty for a period of more than 180 days, and
was discharged or released therefrom with other than a dishonorable
discharge, if any part of such active duty occurred:
(i) In the Republic of Vietnam between February 28, 1961, and May
7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases;
or
(2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed:
(i) In the Republic of Vietnam between February 28, 1961, and May
7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
(q) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
special disabled veteran holds or desires. The term essential functions
does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(r) Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant who is a special disabled veteran to be
considered for the position such applicant desires; <SUP>1</SUP> or
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\1\ A contractor's duty to provide a reasonable accommodation
with respect to applicants who are special disabled veterans is not
limited to those who ultimately demonstrate that they are qualified
to perform the job in issue. Special disabled veteran applicants
must be provided a reasonable accommodation with respect to the
application process if they are qualified with respect to that
process (e.g., if they present themselves at the correct location
and time to fill out an application).
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(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified special disabled veteran
to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's
employee who is a special disabled veteran to enjoy equal benefits and
privileges of employment as are enjoyed by the contractor's other
similarly situated employees who are not special disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by special disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
special disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified special disabled veteran in need of the
accommodation.<SUP>2</SUP> This process should identify the precise
limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations. (Appendix A of
this part provides guidance on a contractor's duty to provide
reasonable accommodation.)
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\2\ Contractors must engage in such an interactive process with
a special disabled veteran, whether or not a reasonable
accommodation ultimately is identified that will make the person a
qualified individual. Contractors must engage in the interactive
process because, until they have done so, they may be unable to
determine whether a reasonable accommodation exists that will result
in the person being qualified.
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(s) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (s)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
(i) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax
[[Page 59645]]
credits and deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the
overall size of the business of the contractor with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
(t) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by the contractor as
requirements which an individual must meet in order to be eligible for
the position held or desired.
(u) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that a special disabled veteran poses a direct threat shall be based on
an individualized assessment of the individual's present ability to
perform safely the essential functions of the job. This assessment
shall be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence. In determining whether an individual would pose a direct
threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Sec. 60-250.3 [Reserved]
Sec. 60-250.4 Coverage and waivers.
(a) General--(1) Contracts and subcontracts of $10,000 or more.
Contracts and subcontracts of $10,000 or more, are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of
the equal opportunity clause.
(2) Contracts for indefinite quantities. With respect to indefinite
delivery-type contracts (including, but not limited to, open end
contracts, requirement-type contracts, Federal Supply Schedule
contracts, ``call-type'' contracts, and purchase notice agreements),
the equal opportunity clause shall be included unless the contracting
agency has reason to believe that the amount to be ordered in any year
under such contract will be less than $10,000. The applicability of the
equal opportunity clause shall be determined at the time of award for
the first year, and annually thereafter for succeeding years, if any.
Notwithstanding the above, the equal opportunity clause shall be
applied to such contract whenever the amount of a single order is
$10,000 or more. Once the equal opportunity clause is determined to be
applicable, the contract shall continue to be subject to such clause
for its duration, regardless of the amounts ordered, or reasonably
expected to be ordered in any year.
(3) Employment activities within the United States. This part
applies only to employment activities within the United States and not
to employment activities abroad. The term ``employment activities
within the United States'' includes actual employment within the United
States, and decisions of the contractor made within the United States
pertaining to the contractor's applicants and employees who are within
the United States, regarding employment opportunities abroad (such as
recruiting and hiring within the United States for employment abroad,
or transfer of persons employed in the United States to contractor
establishments abroad).
(4) Contracts with state or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a
state or local government (or any agency, instrumentality or
subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract or subcontract.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Deputy Assistant Secretary may waive the application to any contract of
the equal opportunity clause in whole or part when he or she deems that
special circumstances in the national interest so require. The Deputy
Assistant Secretary may also grant such waivers to groups or categories
of contracts: where it is in the national interest; where it is found
impracticable to act upon each request individually; and where such
waiver will substantially contribute to convenience in administration
of the Act. When a waiver has been granted for any class of contracts,
the Deputy Assistant Secretary may withdraw the waiver for a specific
contract or group of contracts to be awarded, when in his or her
judgment such action is necessary or appropriate to achieve the
purposes of the Act. The withdrawal shall not apply to contracts
awarded prior to the withdrawal, except that in procurements entered
into by formal advertising, or the various forms of restricted formal
advertising, such withdrawal shall not apply unless the withdrawal is
made more than 10 calendar days before the date set for the opening of
the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the
Deputy Assistant Secretary in writing within 30 days.
(3) Facilities not connected with contracts. The Deputy Assistant
Secretary may waive the requirements of the equal opportunity clause
with respect to any of a contractor's facilities which he or she finds
to be in all respects separate and distinct from activities of the
contractor related to the performance of the contract, provided that he
or she also finds that such a waiver will not interfere with or impede
the effectuation of the Act. Such waivers shall be considered only upon
the request of the contractor.
Sec. 60-250.5 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 Special Disabled Veterans and Veterans of the
Vietnam Era
1. The contractor will not discriminate against any employee or
applicant for employment because he or she is a special disabled
veteran or veteran of the Vietnam era in regard to any position for
which the employee or applicant for employment is qualified. The
contractor agrees to take
[[Page 59646]]
affirmative action to employ, advance in employment and otherwise
treat qualified individuals without discrimination based on their
status as a special disabled veteran or veteran of the Vietnam era
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
wherein the contract is being performed, but excluding those of
independently operated corporate affiliates, at an appropriate local
employment service office of the state employment security agency
wherein the opening occurs. Listing employment openings with the
U.S. Department of Labor's America's Job Bank shall satisfy the
requirement to list jobs with the local employment service office.
3. Listing of employment openings with the local employment
service office 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 the contractor becomes contractually bound to the
listing provisions in paragraphs 2 and 3 of this clause, it shall
advise the state employment security agency in each state where it
has establishments of the name and location of each hiring location
in the state: Provided, That this requirement shall not apply to
state and local governmental contractors. 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.
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