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Office of Federal Contract Compliance Programs (OFCCP)

 

Frequently Asked Questions
Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) Regulations

On September 24, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a Final Rule revising the regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA), at 41 CFR Part 60–300. These regulations became effective on March 24, 2014. You can view the regulations on the OFCCP Web site at www.dol.gov/ofccp/VEVRAARule, either as published in the Federal Register or as posted in the Electronic Code of Federal Regulations (eCFR). Additional information about the VEVRAA regulations is provided in the Frequently Asked Questions (FAQs), below.

 

General Information

  1. Why did OFCCP revise its VEVRAA regulations?

 

Overview of the New VEVRAA Regulations

  1. Why did OFCCP rescind the VEVRAA regulations in 41 CFR Part 60–250?
  2. What changes do the VEVRAA regulations make to the definitions section of the regulations?
  3. Tell me more about the requirement to establish a hiring benchmark. What does my company have to do to establish its benchmark?
  4. Does my company have to apply our hiring benchmark to each of our Executive Order job groups?
  5. Is the hiring benchmark a “goal”?
  6. What do the VEVRAA regulations require with respect to the contractor’s obligation to invite applicants to self–identify as a protected veteran?
  7. When should my company invite pre–offer self–identification from applicants? Is the timing the same for Internet applicants?
  8. What do the VEVRAA regulations require with respect to the mandatory job listing requirement?
  9. Do the VEVRAA regulations still permit my company to incorporate the Equal Opportunity (EO) Clause into subcontracts by reference?
  10. Can a contractor satisfy its obligation to post a notice informing applicants and employees of their EEO rights by posting the notice electronically?
  11. What do the VEVRAA regulations require with respect to the equal opportunity employer statement that is included in all solicitations and advertisements for employees?
  12. Do the VEVRAA regulations require contractors to collect and document specific data related to the number of applicants and hires?
  13. Do the VEVRAA regulations require that contractors design and implement an audit and reporting system for their affirmative action program?
  14. Do the VEVRAA regulations change the requirements for conducting outreach and recruitment?
  15. Do the VEVRAA regulations change the contractor’s longstanding obligation to conduct a review of physical and mental job qualification standards?
  16. Do the VEVRAA regulations update how compliance officers conduct compliance evaluations?

 

Compliance Assistance and Education

In General

  1. How can I contact OFCCP if I have questions about the VEVRAA regulations?
  2. How can I sign up to participate in educational events and opportunities?

 

Protected Veteran Infographic

  1. Does the infographic change the definition of “protected veteran” as defined in VEVRAA?
  2. The infographic’s description of an “active duty wartime” veteran is broader than what many previously understood. How did OFCCP determine the scope of this category of protected veteran?

 

Implementation Questions

In General

  1. Does the Scheduling Letter request data and information required in the VEVRAA regulations?
  2. The regulations require that the “EEO is the Law” poster be made available in a “form that is accessible and understandable” to individuals with disabilities and disabled veterans, such as Braille or large print. Must contractors maintain Braille and/or large print versions of the poster at all locations?
  3. The regulations require contractors to “conspicuously store” the “EEO is the Law” poster with, or as part of, an electronic application. Does this mean that an actual physical or electronic copy of the poster must be individually stored with each application?

 

Data Collection Analysis

  1. The data collection requirements in section 60–300.44(k)(2) of the VEVRAA regulations require contractors to document “the total number of job openings and total number of jobs filled.” Does the “total number of openings” refer to the number of requisitions or job vacancy announcements, or to the number of individual open positions referenced in the requisitions or announcements?
  2. The data collection requirements in section 60–300.44(k) also ask contractors to report the number of jobs “filled” (60–300.44(k)(2)) and those “hired” (60–300.44(k)(4) and (5)). How does the number of “jobs filled” differ from the number of people “hired?”
  3. Does the number of “jobs filled” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?
  4. Can a contractor’s existing human resources information system (HRIS) and/or applicant tracking system (ATS) serve as the “data analysis file” in which veteran self–identification must be stored?

 

Job Listing

  1. How should contractors list job openings for “remote jobs,” that is, jobs will be performed entirely by telework from any location, in order to comply with VEVRAA’s job listing requirement?

 

Self–Identification

  1. If an individual self–identifies as a protected veteran at the pre–offer stage of the application process, but does not self–identify again at the post–offer stage, may a contractor still count the individual as a protected veteran for purposes of applying the hiring benchmark and performing the required data collection analysis?
  2. The Veterans’ Employment and Training Service’ (VETS) VETS–4212 form requires federal contractors to report aggregate data on the number of protected veterans that were newly hired and the number they employed. This is different from the previous requirement that contractors report the data by the number of veterans in each of the individual categories for protected veterans. To comply with OFCCP’s VEVRAA requirements, must contractors invite applicants to self–identify using the individual categories at the post–offer stage?
  3. May a contractor invite applicants to voluntarily self–identify as a protected veteran using the individual categories for protected veterans, even though the VETS–4212 form asks only for aggregated protected veteran data?

 

Hiring Benchmarks

  1. Should a contractor apply the VEVRAA hiring benchmark to all of its establishments, to each establishment separately, or to each job group at each establishment?
  2. Is it acceptable for a contractor to set different benchmarks for each of its establishments? For example, may a contractor set the benchmark for one of its establishments using the national percentage of veterans (per 60–300.45(b)(1)) and for another of its establishments using the five–factor analysis (per 60–300.45(b)(2))?
  3. When applying the hiring benchmark, should contractors use the same definition of “hires” that is used for purposes of the data collection analysis required by 60–300.44(k)?

 

Vacancy Announcement Tagline

  1. May contractors satisfy the EEO tagline requirement by abbreviating “disability” and “protected veteran status” as “D” and “V”, respectively?

 

Equal Opportunity Clause

  1. For those contractors that elect to incorporate the required Equal Opportunity (EO) clauses by reference, may the “incorporation by reference” clause required by 41 CFR 60–300.5(a) be combined with the “incorporation by reference” clause required by 41 CFR 60–741.5(a)?
  2. Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?

 


 

General Information

 

1. Why did OFCCP revise its VEVRAA regulations?

OFCCP revised the VEVRAA regulations to update and strengthen contractors’ affirmative action and nondiscrimination responsibilities. The framework articulating a contractor’s responsibilities with respect to affirmative action has remained unchanged since the VEVRAA implementing rules were first published in 1976. Meanwhile, increasing numbers of veterans are returning from tours of duty in Iraq, Afghanistan, and other places around the world, and many face substantial obstacles to finding employment upon leaving the service.

Several factors contribute to limiting the ability of veterans to seek, find, keep, and thrive in jobs. The existence of an outdated framework that does not reflect the realities of today’s workplace is one factor. Other factors include, bias or discrimination, the inability of employers to translate military skills and abilities, process and institutional barriers, and data collection issues. These all contribute to veterans being underutilized in the federal contractor workforce.

 


 

Overview of the New VEVRAA Regulations

 

1. Why did OFCCP rescind the VEVRAA regulations in 41 CFR Part 60–250?

The Part 60–250 regulations applied only to contracts entered into before December 1, 2003, and not since modified. OFCCP believes that all such contracts have either expired, or been modified so that they are now covered under the 41 CFR Part 60–300 regulations. There is, therefore, no longer a need for the Part 60–250 regulations.

However, out of an abundance of caution that a contract falling under Part 60–250 coverage may still exist, the VEVRAA regulations provide for the continuing protection from discrimination for any veteran who would have been protected under Part 60–250 had it not been rescinded, but was not previously protected under Part 60–300. The regulations refer to these veterans as “pre–JVA veterans,” and permit them to file discrimination complaints under the Part 60–300 regulations.

 


 

2. What changes do the VEVRAA regulations make to the definitions section of the regulations?

The VEVRAA regulations make several changes to the definitions section of the regulations:

  • A definition of “protected veteran” has been added to provide a comprehensive term to refer to any veteran that is protected under the VEVRAA regulations;
  • The term “other protected veteran” has been replaced with the more accurate and specific term “active duty wartime or campaign badge veteran” to describe that group of protected veterans. These are veterans that served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense;
  • A definition of “pre–JVA veteran” has been added to denote the groups of veterans previously protected under the now rescinded Part 60–250;
  • “Director” replaces the term “Deputy Assistant Secretary” to reflect the current title of the head of OFCCP;
  • Additional information regarding the Wagner–Peyser Act has been added to the definition of “employment service delivery system” for clarification; and

 


 

3. Tell me more about the requirement to establish a hiring benchmark. What does my company have to do to establish its benchmark?

The VEVRAA regulations require that each contractor who is required to develop a written affirmative action program (AAP) also establish a hiring benchmark for protected veterans each year. This benchmark is a tool to help contractors assess the effectiveness of their efforts to recruit and employ protected veterans. A contractor may establish its hiring benchmark in one of two ways:

  • A contractor may establish a benchmark equal to the national percentage of veterans in the civilian labor force, as posted in the Benchmark Database on the OFCCP Web site; or
  • A contractor may establish its own benchmark by taking into account the following five factors:
    1. the average percentage of veterans in the civilian labor force in the state where the contractor is located over the preceding three years, as posted in the Benchmark Database on the OFCCP Web site;
    2. the number of veterans, over the previous four quarters, who participated in the employment service delivery system in the state where the contractor is located, as posted in the Benchmark Database on the OFCCP Web site;
    3. the applicant and hiring ratios for the previous year;
    4. the contractor’s recent assessments of the effectiveness of its outreach and recruitment efforts; and
    5. any other factors, such as the nature of the job or its location, that would affect the availability of qualified protected veterans.

Contractors must maintain records related to their benchmark for three years, allowing them to assess the success of their outreach and recruitment efforts for veterans over time.

 


 

4. Does my company have to apply our hiring benchmark to each of our Executive Order job groups?

No. Contractors may apply their hiring benchmark to each of their job groups, but the VEVRAA regulations do not require them to do so.

 


 

5. Is the hiring benchmark a “goal”??

No, the hiring benchmark in VEVRAA functions differently from the “goals” expressed in the Executive Order 11246 regulations and the Section 503 regulations. The hiring benchmark in VEVRAA provides a yardstick against which contractors can measure the success of their efforts to recruit and employ qualified protected veterans. A goal, on the other hand, not only serves as a yardstick to measure the success of outreach and recruitment efforts, but it also provides an equal opportunity objective, based on the availability of members of the protected group in the labor force, that should be attainable if the contractor complies with its affirmative action program. In contrast, the only data regarding veteran availability in the labor force encompasses all veterans, and is broader than the subset of veterans who are protected by VEVRAA. Therefore, such data could not be used as the basis for establishing an availability–based goal.

 


 

6. What do the VEVRAA regulations require with respect to the contractor’s obligation to invite applicants to self–identify as a protected veteran?

The VEVRAA regulations require contractors to invite applicants to self–identify as a protected veteran prior to making a job offer, in addition to the longstanding requirement to invite post–offer self–identification. OFCCP added this requirement so that contractors can track the number of protected veterans who apply for jobs and use this data to assess the effectiveness of their outreach and recruitment efforts. The pre–offer invitation to self–identify may be included in the contractors’ application materials. After making a job offer to an applicant, the regulations require that contractors invite applicants to voluntarily self–identify as belonging to any of the specific categories of protected veteran (e.g., recently separated veteran; disabled veteran) on which the contractor is required to report by the Veterans Employment and Training Service (VETS). Appendix B of the VEVRAA regulations includes a sample invitation to self–identify that contractors may choose to use. You can find the sample invitation on the OFCCP Web site.

 


 

7. When should my company invite pre–offer self–identification from applicants? Is the timing the same for Internet applicants?

The VEVRAA regulations permit contractors to invite applicants to self–identify as a protected veteran at the same time that the contractor collects demographic data regarding race, gender, and ethnicity from applicants, as required by Executive Order 11246. Under Executive Order 11246, the Internet Applicant Rule generally allows contractors to screen out individuals whom they believe do not meet the basic qualifications for the position prior to collecting demographic data regarding race, gender, and ethnicity. In order to harmonize VEVRAA’s pre–offer invitation to self–identify requirement with Executive Order 11246’s Internet Applicant recordkeeping provisions, OFCCP permits contractors to invite applicants to self–identify after they meet the Internet Applicant requirements, including the basic qualification screen.

When designing basic qualification screens, contractors should be mindful of the requirements that VEVRAA places on the use of qualification standards and selection criteria, including the use of “basic qualification” screens. VEVRAA prohibits contractors from using qualification standards and selection criteria that screen out or tend to screen out a disabled or other protected veteran or a class of disabled or other protected veterans unless the contractor can show that the standards or criteria are job–related for the position in question and consistent with business necessity. Moreover, contractors may not use selection criteria that relate to the performance of an essential function of the job to exclude a disabled veteran if that person could satisfy the criteria with a reasonable accommodation.

 


 

8. What do the VEVRAA regulations require with respect to the mandatory job listing requirement?

The regulations clarify what contractors must do to satisfy the job listing requirement set forth in the VEVRAA statute. Specifically, the regulations codify OFCCP’s longstanding policy that the contractor must provide its job listing information in a format that is permitted by the appropriate employment service delivery system (ESDS). This means, for example, that if the ESDS requires electronic transmission through a Web–based form, the contractor must provide its job listings in this way. If the ESDS will accept job listings electronically, by facsimile or by mail, then the contractor may provide its job listings in any of these formats. In addition, with its initial listing, a contractor must indicate that it is a federal contractor that desires priority referrals of protected veterans for its openings. The contractor must also provide the ESDS with contact information for the contractor official responsible for hiring at each hiring location in the state. This official may be a chief hiring official, an HR contact, a senior management contact, or any other appropriate official. Should there be changes to any of this information, the contractor must provide the ESDS with updated information at the time of its next job listing.

 


 

9. Do the VEVRAA regulations still permit my company to incorporate the Equal Opportunity (EO) Clause into subcontracts by reference?

Yes. Contractors can incorporate the EO Clause into subcontracts by reference but only by citing the regulations, 41 CFR 60–300.5(a), AND including the following sentences in bold text immediately following the citation:

This contractor and subcontractor shall abide by the requirements of 41 CFR 60–300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.

 


 

10. Can a contractor satisfy its obligation to post a notice informing applicants and employees of their EEO rights by posting the notice electronically?

When a contractor has employees who do not work at its physical location, the contractor can satisfy its posting obligation by posting the EEO notice in electronic format. To have the ability to use electronic postings to satisfy this obligation, a contractor must either provide these employees with computers that can access the electronic posting or the contractor must have actual knowledge that the electronically posted notice is otherwise accessible to these employees. Contractors must post electronic notices for employees in a conspicuous location and format on the company’s Intranet or send them to employees by electronic mail (i.e., email). If the contractor uses an electronic application process, it must post an electronic notice to inform job applicants of their EEO rights. Electronic notices for applicants must be conspicuously stored with, or as part of, the electronic application. In addition, in individual instances, a contractor may have to provide a notice of EEO rights electronically as a form of reasonable accommodation for a disabled employee, even if the employee works at the contractor´s physical location.

 


 

11. What do the VEVRAA regulations require with respect to the equal opportunity employer statement that is included in all solicitations and advertisements for employees?

The regulations require a contractor to state in its job solicitations and advertisements that it is an equal opportunity employer of protected veterans. Contractors can do this by simply adding “veteran status” or something similar to its existing equal opportunity employer statement.

 


 

12. Do the VEVRAA regulations require contractors to collect and document specific data related to the number of applicants and hires?

The previous VEVRAA regulations did not provide for any structured collection of data regarding the number of protected veteran who apply for jobs. This lack of data made it nearly impossible for a contractor to evaluate the availability of protected veterans in its applicant pool or workforce, or to assess the effectiveness of its outreach and recruitment efforts at attracting protected veteran candidates. To fill this data void, the new regulations require contractors to document and update the following comparisons and information regarding applicants and employees annually.

Yes. The regulations require contractors to document and update the following comparisons and information regarding applicants and employees annually. With respect to applicants:

  • the number of protected veteran applicants;
  • the total number of job openings and the number of jobs filled; and
  • the total number of applicants for all jobs.

with respect to employees:

  • the total number of protected veteran applicants hired; and
  • the total number of applicants hired

This will provide contractors with meaningful data to use in evaluating and tailoring their recruitment and outreach efforts. Contractors must maintain this information for three years, to allow them to assess the success of their outreach and recruitment efforts for veterans over time.

 


 

13. Do the VEVRAA regulations require that contractors design and implement an audit and reporting system for their affirmative action program?

OFCCP always intended that contractors document the actions they take to comply with the requirement to design and implement an audit and reporting system. The regulations make this intention explicit by requiring that contractors document these actions and retain these documents as employment records.

 


 

14. Do the VEVRAA regulations change the requirements for conducting outreach and recruitment?

The regulations provide examples of outreach and recruitment activities, but retain the flexibility for contractors to choose and utilize the outreach and recruitment activities that work best for them. To determine whether the chosen methods of outreach and recruitment have been successful, the regulations require that contractors annually assess their outreach and recruitment efforts and document this evaluation. The evaluation must include the criteria the contractor used to evaluate the effectiveness of each effort and the contractor’s conclusion as to whether each effort was effective. If the contractor concludes that the totality of its efforts were not effective in identifying and recruiting qualified protected veterans, it must implement alternative outreach and recruitment methods. Contractors must retain their evaluations for three years, to allow them to assess the success of their outreach and recruitment efforts for veterans over time.

 


 

15. Do the VEVRAA regulations change the contractor’s longstanding obligation to conduct a review of physical and mental job qualification standards?

No. The regulations still require that these reviews of job qualification standard be conducted “periodically.” OFCCP has identified some best practices, or examples, for reviewing job qualification standards. One example is reviewing physical and mental qualification standards prior to posting or filling a job position/opening, if the contractor has not reviewed the standards for that job within the past year; and whenever the physical or mental qualifications standards of a job change, regardless of when the contractor last reviewed that position’s standards.

 


 

16. Do the VEVRAA regulations update how compliance officers conduct compliance evaluations?

Yes. It has long been OFCCP’s practice to obtain information pertinent to a compliance evaluation for periods after the date of the scheduling letter. The regulations codify this position by stating that OFCCP may extend the temporal scope of an evaluation and examine information after the date of the compliance evaluation scheduling letter, if OFCCP deems it necessary to carry out its investigation of potential VEVRAA violations. The regulations also state that, upon request, the contractor must inform OFCCP of the format(s) in which it maintains its records and other information (e.g., Word; pdf; Excel), and provide the records and information to OFCCP in the available format(s) OFCCP selects. In addition, the regulations state that OFCCP may request that the contractor provide documents either on–site or off–site during compliance checks and that OFCCP may conduct focused reviews both on–site and off–site. Finally, the regulations require a pre–award compliance evaluation procedure like the one contained in the Executive Order 11246 regulations.

 


 

Compliance Assistance and Education

 

In General

1. How can I contact OFCCP if I have questions about the VEVRAA regulations?

Contractors and other stakeholders may always reach out to OFCCP’s Customer Service Desk with questions by calling 1–800–397–6251, or by going to the “Contact”” tab on the OFCCP Web site at https://www.dol.gov/ofccp/ to email us.

 


 

2. How can I sign up to participate in educational events and opportunities?

To view scheduled technical assistance webinars and stakeholder events visit the DOL Events Calendar at https://www.dol.gov/calendar/. To view recordings and transcripts of previously conducted technical assistance webinars visit the OFCCP Public Webinars page at https://www.dol.gov/ofccp/regs/compliance/final_rules_webinars.htm. In addition, OFCCP has compiled resources to support federal contractor compliance with the regulations, which are available on the OFCCP website at https://www.dol.gov/ofccp/regs/compliance/Resources.htm.

 


 

Protected Veteran Infographic

1. Does the infographic change the definition of “protected veteran” as defined in VEVRAA?

No. The definition of “protected veteran” is established in the statute and cannot be changed by OFCCP. A veteran is a “protected veteran” under VEVRAA if he or she falls into one or more of the following categories: disabled veteran; recently separated veteran; active duty wartime or campaign badge veteran; or Armed Forces service medal veteran. The infographic does not change these categories. Rather, it clarifies which veterans are included in each category of protected veteran so that veterans will be able to determine, as a practical matter, whether they are protected by VEVRAA.

 


 

2. The infographic’s description of an “active duty wartime” veteran is broader than what many previously understood. How did OFCCP determine the scope of this category of protected veteran?

The statute and regulations define an “active duty wartime” veteran as a veteran who served on active duty in the U.S. military during a war. Title 38, the title of federal statutes where VEVRAA is located, defines “period of war” as including World War II, the Korean conflict, the Vietnam era, and the Persian Gulf War, which is defined as August 2, 1990, to the present. Therefore, a veteran who served on active duty during any of those periods (and was not dishonorably discharged) is an “active duty wartime” veteran under VEVRAA. This is the same approach taken by the Department of Veterans Affairs (VA), which administers most of the provisions in Title 38, when determining eligibility for various veteran benefits. See, for example, http://www.benefits.va.gov/pension/wartimeperiod.asp, listing the wartime periods eligible for VA pension benefits.

 


 

Implementation Questions

 

In General

1. Does the Scheduling Letter request data and information required in the VEVRAA regulations?

Yes. The Scheduling Letter and Itemized Listing specify the documents and data related to VEVRAA that a contractor must provide to OFCCP when selected for a compliance evaluation. These include the contractor’s VEVRAA Affirmative Action Program (AAP), and the documentation and information required by Subpart C of the regulations, including but not limited to the contractor’s annually established hiring benchmark, evaluation of outreach and recruitment efforts, and the data described in § 60–300.44(k).

 


 

2. The regulations require that the “EEO is the Law” poster be made available in a “form that is accessible and understandable” to individuals with disabilities and disabled veterans, such as Braille or large print. Must contractors maintain Braille and/or large print versions of the poster at all locations?

Providing the “EEO is the Law” poster in an alternate format, such as large print or Braille, is a form of reasonable accommodation. Therefore, contractors must make the poster available in such an alternate format only when an applicant or employee requests the poster in an alternate format, or when the contractor knows that an applicant or employee is unable to read the poster because of a disability. Contractors may also provide the poster to an applicant or employee with a disability in other alternate formats, such as on disc or in an audio recording, so long as the format provided enables the individual with a disability to access the contents of the poster.

 


 

3. The regulations require contractors to “conspicuously store” the “EEO is the Law” poster with, or as part of, an electronic application. Does this mean that an actual physical or electronic copy of the poster must be individually stored with each application?

The purpose of this requirement is to ensure that applicants who apply for jobs electronically are informed of their equal employment opportunity protections as part of the application process. Although including a copy of the poster with every electronic application will satisfy the requirement, the regulations do not require contractors to do this. Rather, a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.

 


 

Data Collection Analysis

1. The data collection requirements in section 60–300.44(k)(2) of the VEVRAA regulations require contractors to document “the total number of job openings and total number of jobs filled.” Does the “total number of openings” refer to the number of requisitions or job vacancy announcements, or to the number of individual open positions referenced in the requisitions or announcements?

The total number of job openings refers to the number of individual positions advertised as open in a job vacancy announcement or requisition. For example, if one job vacancy announcement or requisition includes 5 open positions and results in 4 hires, the contractor would document this as 5 job openings and 4 jobs filled.

 


 

2. The data collection requirements in section 60–300.44(k) also ask contractors to report the number of jobs “filled” (60–300.44(k)(2)) and those “hired” (60–300.44(k)(4) and (5)). How does the number of “jobs filled” differ from the number of people “hired?”

In the context of the data collection requirements of 60–300.44(k), jobs “filled” refers to all jobs the company filled by any means, be it through a competitive process or non–competitively, e.g., through reassignment or merit promotion. It, therefore, should take into account both new hires into the company and those employees who were placed into new positions via promotions, transfers, and reassignments. In contrast, the number of those “hired?” refers solely to those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions.

 


 

3. Does the number of “jobs filled,” include step or ladder movements that are automatically attained upon completion of a stated event, such as time in the job or attainment of a particular certification?

Both competitive and non–competitive movements may qualify as “jobs filled,” so long as the movement is one into a different position, rather than simply a movement within the same position. This will necessarily be a fact–based determination. So, for example, a time–driven salary increase from one “step” to the next within the same position would not be a “jobs filled,” since there was not any movement into a new position. By contrast, if an apprentice completes a certification program and moves into a journeyman position, then such movement would be a “job filled,” since it is a movement from one position to another.

 


 

4. Can a contractor’s existing human resources information system (HRIS) and/or applicant tracking system (ATS) serve as the “data analysis file” in which veteran self–identification must be stored?

Contractors may use their existing human resources information systems or applicant tracking systems as the data analysis file repositories for the veteran self–identification data collected pursuant to the regulations, provided that certain criteria are met. Specifically, the veteran status–related data must be stored securely, apart from other personnel information, so that confidentiality is maintained, and access to this data must be limited solely to contractor personnel who have a need to know the information for the purpose of complying with OFCCP’s regulations. Veteran self–identification data must not be kept with the employee’s confidential medical file.

 


 

Job Listing

1. How should contractors list job openings for “remote jobs,” that is, jobs will be performed entirely by telework from any location, in order to comply with VEVRAA’s job listing requirement?

VEVRAA requires that contractors list their employment openings with the appropriate state or local employment service delivery system (ESDS) where the opening “occurs.” Typically, the location of a job opening, or the location to which the employee must report for work is where the opening “occurs.” However, when a vacancy announcement indicates that the opening is for a remote job to be performed entirely by telework, there is no fixed place where the job “occurs.” The contractor may, therefore, satisfy the job listing requirement for a remote job by listing the opening with an ESDS in any area where qualified candidates might be found. Where the vacancy announcement indicates that the job may be performed either from a specified duty station or remotely, the contractor must list the job with the ESDS where the duty station is located, but may also list the opening with any other ESDS it determines is appropriate.

 


 

Self–Identification

1. If an individual self–identifies as a protected veteran at the pre–offer stage of the application process, but does not self–identify again at the post–offer stage, may a contractor still count the individual as a protected veteran for purposes of applying the hiring benchmark and performing the required data collection analysis?

Section 60–300.42 of the VEVRAA regulations requires contractors to invite applicants to self–identify as “protected veterans” at both the pre–offer and post–offer stages of the application process. If an applicant self–identifies as a “protected veteran” at the pre–offer stage but not at the post–offer stage, the contractor may identify the new hire as a “protected veteran” for purposes of compliance with the VEVRAA regulations.

 


 

2. The Veterans’ Employment and Training Service» (VETS) VETS–4212 form requires federal contractors to report aggregate data on the number of protected veterans that were newly hired and the number they employed. This is different from the previous requirement that contractors report the data by the number of veterans in each of the individual categories for protected veterans. To comply with OFCCP»s VEVRAA requirements, must contractors invite applicants to self–identify using the individual categories at the post–offer stage?

No. The VEVRAA requirement, at 41 CFR 60–300.42(b), mandates that contractors invite post–offer self–identification as a protected veteran. This provision is specifically linked to the scope of the VETS reporting requirement. Accordingly, since the VETS–4212 report only requires contractors to provide this information in the aggregate, contractors are not required to invite self–identification by category in order to comply with VEVRAA’s post–offer invitation requirement. Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

 


 

3. May a contractor invite applicants to voluntarily self–identify as a protected veteran using the individual categories for protected veterans, even though the VETS–4212 form asks only for aggregated protected veteran data?

Yes. Though not required, contractors may choose to invite applicants to voluntarily self–identify the specific category or categories of protected veteran to which they belong at the post–offer stage, so long as the contractor also provides VETS with the aggregate protected veteran data required by the VETS–4212 form.

 


 

Hiring Benchmarks

1. Should a contractor apply the VEVRAA hiring benchmark to all of its establishments, to each establishment separately, or to each job group at each establishment?

The VEVRAA hiring benchmark – whether based on the national percentage of veterans per 60–300.45(b)(1) or the five–factor approach in 60–300.45(b)(2) – should be applied to hiring for each establishment separately.

 


 

2. Is it acceptable for a contractor to set different benchmarks for each of its establishments? For example, may a contractor set the benchmark for one of its establishments using the national percentage of veterans (per 60–300.45(b)(1)) and for another of its establishments using the five–factor analysis (per 60–300.45(b)(2))?

Yes. Each contractor is free to use either of the two methods specified in the regulations to establish the benchmark for each of its establishments.

 


 

3. When applying the hiring benchmark, should contractors use the same definition of “hires” that is used for purposes of the data collection analysis required by 60–300.44(k)?

Yes. Since the regulations do not specify a different definition of “hires” for the VEVRAA hiring benchmark, contractors should use the definition of hires that is applicable to the data collection analysis obligation. That definition encompasses those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. This will ensure consistency in the interpretations of these key provisions of the regulations.

 


 

Vacancy Announcement Tagline

1. May contractors satisfy the EEO tagline requirement by abbreviating “disability” and “protected veteran status” as “D” and “V”, respectively?

Contractors may refer to those protected by Section 503 or VEVRAA by abbreviation, but such abbreviations must be commonly understood by those seeking employment. Simply using “D” and “V” are not adequate abbreviations for this reason. For those protected by Section 503 or VEVRAA, the tagline should at a minimum state “disability” and “vet” so that the tagline will be clearly understood by jobseekers.

 


 

Equal Opportunity Clause

1. For those contractors that elect to incorporate the required Equal Opportunity (EO) clauses by reference, may the “incorporation by reference” clause required by 41 CFR 60–300.5(a) be combined with the “incorporation by reference” clause required by 41 CFR 60–741.5(a)?

Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:

This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.

 


 

2. Are federal contractors permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR 60–300.5(a), 41 CFR 60–741.5(a), and 41 CFR 60–1.4(a) (or for construction contractors, 41 CFR 60–4.3(a)) into a single, consolidated “incorporation by reference” clause?

Yes, contractors may combine all of their required EO clauses into a single “incorporation by reference” clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO “incorporation by reference” clauses is preserved. The following example provides one illustration of how this might be done for a supply and service contractor:

This contractor and subcontractor shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.