['Discrimination', 'Government contracts']
['Veterans', 'Walsh-Healey Public Contracts Act', 'Government Contracts', 'Davis-Bacon and Related Acts']
05/17/2022
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-300
RIN 1215-AB46
Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Disabled Veterans, Recently Separated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is publishing a new set of regulations to implement the amendments to the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) that were made by the Jobs for Veterans Act (“JVA”) enacted in 2002. The JVA amendments raised the threshold dollar amount of the Government contracts that are subject to the affirmative action provisions of VEVRAA, changed the categories of veterans protected by the law, and changed the manner in which the mandatory job listing requirement is to be implemented. The final regulations published today apply only to covered Government contracts entered into or modified on or after December 1, 2003. The existing VEVRAA implementing regulations found in 41 CFR part 60–250 will continue to apply to Government contracts entered into before December 1, 2003.
DATES: Effective Date: These regulations are effective September 7, 2007.
FOR FURTHER INFORMATION CONTACT:
Lynn A. Clements, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, Washington, DC. 20210. Telephone: (202) 693–0102 (voice) or (202) 693–1337 (TTY).
SUPPLEMENTARY INFORMATION:
Current Regulations and Rulemaking History
The Jobs for Veterans Act (“JVA”), (Pub. L. 107–288, 116 Stat. 2033), was signed by the President on November 2, 2002. Section 2(b)(1) of the JVA amended the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, (“VEVRAA”). Section 2(b)(3) of the JVA made the amendments applicable to Government contracts entered into on or after December 1, 2003.
Prior to amendment by the JVA, the affirmative action provisions of VEVRAA required parties holding Government contracts or subcontracts of $25,000 or more to “take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.” OFCCP has adopted the term “other protected veteran” to refer to “veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.”
In addition, prior to amendment, VEVRAA required that the Secretary promulgate regulations requiring contractors “to list immediately with the appropriate local employment service office all of its employment openings, except that the contractor may exclude openings for executive and top management positions, positions which are to be filled from within the contractor’s organization, and positions lasting three days or less.”
The JVA amendments made three significant changes to the affirmative action provisions of VEVRAA. First, section 2(b)(1) of the JVA increased the coverage threshold from a contract of $25,000 or more to a contract of $100,000 or more.
Second, the JVA amendments changed the categories of covered veterans under VEVRAA. The JVA eliminated the category of Vietnam era veterans from coverage under VEVRAA. However, many Vietnam era veterans may remain covered in other categories. The JVA added as a new category of covered veterans—those “veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.” The JVA expanded the coverage of veterans with disabilities. Prior to amendment by the JVA, VEVRAA covered veterans rated as having 10% to 20% serious employment handicap or a disability rated 30% or more by the Department of Veterans Affairs. The JVA amendments expanded coverage to include all veterans with service-connected disabilities. The JVA also expanded the coverage of “recently separated veterans” from one to three years after discharge or release from active duty.
Third, the JVA modified the mandatory job listing requirement for covered contractors. Currently, the regulation at 41 CFR 60–250.5 allows contractors to satisfy their job listing obligations by listing employment openings either with the appropriate local employment service office or with America’s Job Bank (AJB). Section 2(b)(1) of the JVA requires the Secretary to promulgate regulations that obligate each covered contractor to list all of its employment openings with “the appropriate employment service delivery system (as defined in section 4101(7) of this title).” Section 5(c)(1) of the JVA defines the term “employment service delivery system” as “a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” See 38 U.S.C. 4101(7). (The Wagner-Peyser Act established the Employment Service, which is a nationwide system of public employment offices.) The JVA provides that a contractor also may list employment openings with “one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America’s Job Bank (or any additional or subsequent national electronic job bank established by the Department of Labor).” Thus, as a result of the JVA amendments, listing job openings solely with AJB will no longer comply with the requirements of VEVRAA.
On January 20, 2006, OFCCP published for a 60-day comment period a Notice of Proposed Rulemaking (NPRM), 71 FR 3352, to implement the JVA amendments to VEVRAA. OFCCP published a notice on March 21, 2006, 71 FR 14135, which corrected the e-mail address for submitting comments on the January 20 NPRM, and extended the comment period for seven days, or until March 28, 2006. OFCCP received five comments: two from State workforce development agencies, and three from employer associations whose members include Federal contractors. OFCCP reviewed and carefully considered the comments in the development of this final rule.
Overview of the Final Rule
The final rule adopts regulations implementing the JVA amendments to VEVRAA that will be codified in a new 41 CFR part 60–300. OFCCP explained in the preamble of the NPRM that most provisions in part 60–300 are identical to the parallel provisions in the existing VEVRAA implementing regulations in 41 CFR part 60–250, except where differences are required to implement the JVA amendments. Consequently, the same section numbers are used in both parts 60–250 and 60–300. Generally, the differences between the two sets of regulations are found in the provisions that reference the contract coverage threshold and the categories of covered veterans. In the Section-by-Section Analysis of the NPRM, OFCCP highlighted only the provisions in the proposed rule that differ from provisions in the part 60–250 regulations. Likewise, the provisions in the part 60–250 regulations that have been incorporated in today’s final rule without substantive change are omitted from the discussion in the Section-by-Section Analysis of Comments and Revisions below.
This final rule, for the most part, adopts the provisions that were proposed in the January 20 NPRM. However, a few of the proposed provisions have been modified in response to the public comments. The discussion which follows identifies the significant issues raised in comments received in response to the NPRM, provides OFCCP’s responses to those comments, and explains any resulting changes to the proposed rule.
Section-by-Section Analysis of Comments and Revisions
Subpart A—Preliminary Matters, Equal Opportunity Clause
Section 60–300.1 Purpose, Applicability and Construction
This section discusses the purpose, applicability, and construction of the part 60–300 regulations. Paragraphs (a) and (c)(2) refer to the four categories of veterans covered under the JVA: (1) Disabled veterans, (2) recently separated veterans, (3) other protected veterans, and (4) Armed Forces service medal veterans.
Paragraph (b) states that this part applies to any Government contract or subcontract of $100,000 or more entered into on or after December 1, 2003. The singular form of the term “contract” is used in paragraph (b) in order to make clear that a single contract in the amount of $100,000 or more is required to establish coverage under VEVRAA; contracts are not aggregated to reach the coverage threshold. Additionally, paragraph (b) states that a contractor whose only covered Government contract was entered into before December 1, 2003, must comply with the requirements in the existing VEVRAA implementing regulations in part 60–250, and a contractor that has covered contracts entered into both before and on or after December 1, 2003, must comply with the regulations in part 60–300 and existing part 60–250.
Two commenters asked whether contractors subject to the existing VEVRAA regulations in part 60–250 and the regulations in part 60–300 implementing the JVA amendments must develop two separate VEVRAA affirmative action programs (AAPs). OFCCP wishes to clarify that a contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments increased the dollar amount of the contract that triggers the written AAP requirement, but the JVA amendments did not affect the required contents of the written AAP under VEVRAA. OFCCP explained in the NPRM that, with the exception of the changes necessitated by the JVA amendments, §60–300.44, which addresses the requirements of AAPs under VEVRAA, is identical to §60–250.44. Since the contents of the written AAP required under §60–300.44 and §60–250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations.
One commenter, an employer association, asserted that it would be unduly burdensome and confusing for contractors to have to comply with two sets of VEVRAA regulations, as they would be required to track different categories of protected veterans. The commenter stated that OFCCP has some flexibility, and, as a matter of enforcement policy, the agency could adopt a final rule that requires contractors to comply with only one set of VEVRAA regulations. The commenter argued that OFCCP could state in the final rule that contractors need only comply with the new JVA regulations, even if they also have contracts that are covered under the existing regulations in part 60–250. Further, the commenter stated that the final rule could provide that contractors entering into contracts that are covered under the regulations in new part 60–300 after the start of the AAP year have the option of continuing to comply only with the recordkeeping and reporting requirements under the part 60–250 rules until the end of the AAP year.
OFCCP disagrees with the commenter’s claim that compliance with the requirements of two sets of VEVRAA regulations would be unduly burdensome. First, complying with the requirements of part 60–300 will not increase the paperwork burden of contractors already covered under the VEVRAA regulations. The regulations in part 60–300 implementing the JVA amendments, like the existing VEVRAA implementing regulations in part 60–250, require that contractors extend to all applicants an invitation to self-identify as a veteran who may be covered under the Act and wishes to benefit under the affirmative action program. The only difference between the invitations to self-identify required under part 60–300 and part 60–250 is the categories of veterans that are invited to self-identify. Because OFCCP has included a sample invitation to self-identify in Appendix B of the part 60–300 regulations, compliance with the part 60–300 requirement to invite applicants to self-identify as covered veterans will not add to the burden hours associated with the information collection requirements of the affirmative action provisions of VEVRAA. If a contractor is covered by part 60–250 and part 60–300, the contractor may continue using the part 60–250 sample invitation to self-identify form and add the part 60–300 sample invitation to self-identify form once the final rule becomes effective. Contractors also may choose to combine the two sample invitation to self-identify forms provided in part 60–250 and part 60–300 such that the contractor extends to applicants one invitation to self-identify which lists all of the categories of veterans protected under parts 60–250 and 60–300.
Further, the JVA did not alter the written AAP requirement under VEVRAA. Contractors that also are subject to the regulations in part 60–300 may continue to implement the AAPs developed under the part 60–250 regulations, but their affirmative action efforts must include the three additional categories of covered veterans. These contractors may develop one AAP, rather than two, as long as the components of that AAP, including the outreach and positive recruitment activities, include all categories of veterans protected under parts 60–250 and 60–300.
Moreover, OFCCP believes that only a small percentage of contractors will be required to comply with both sets of VEVRAA regulations. The term “Government contract” is defined in existing §60–250.2(i) and §60–300.2(i) of the final rule as “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).” Existing §60–250.2(i)(1) and 60–300.2(i)(1) of the final rule provide that a “modification” is “any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions.” The JVA applies to Government contracts entered on or after December 1, 2003. Because a contract modification is a “Government contract”, the JVA applies to modifications of otherwise covered contracts made on or after December 1, 2003. Consequently, modification of a contract that would otherwise be covered by part 60–300 on or after December 1, 2003, but for the date the contract was entered into, would have the effect of modifying the VEVRAA equal opportunity clause; the new requirements of part 60–300 would be applicable to the modified contract, rather than the old requirements of part 60–250.
To clarify the effect of modifying a contract on the VEVRAA requirements applicable after modification, language has been added to §60–300.1(b) addressing the issue. In the final rule, §60–300.1(b) has been revised to state “[t]his part applies to any Government contract or subcontract of $100,000 or more, entered into or modified on or after December 1, 2003 * * *. In addition, §60–300.1(b) of the final rule states “[a]ny contractor or subcontractor whose only contract * * * was entered into before December 1, 2003 (and not modified as described above) must follow part 60–250.”
The regulations published today and the existing VEVRAA implementing regulations in part 60–250 do not require contractors to count the number of veterans in their employ. The Veterans’ Employment and Training Service (VETS), rather than OFCCP, administers and enforces the requirement that contractors track and report on the number of employees in their workforces who are covered veterans, and has established a form for reporting the required information. See 41 CFR Chapter 61.
Finally, OFCCP also disagrees with the assertion that the final rule could provide that contractors need comply with only one set of VEVRAA regulations. Many of the veterans currently protected under the regulations in part 60–250 remain covered in the categories of veterans protected under the JVA. However, because the JVA eliminated the Vietnam era veterans from coverage under VEVRAA, some Vietnam era veterans might lose the VEVRAA protections prematurely if OFCCP were to adopt a rule requiring contractors with contracts entered both before and on and after December 1, 2003, to comply only with the regulations implementing the JVA amendments. Conversely, some veterans covered under the JVA were not covered previously. OFCCP does not have the authority to permit contractors subject to both pre- and post-JVA requirements to comply only with post-JVA requirements because OFCCP rulemaking authority can only be exercised in a manner that carries out the provisions of the statute. Here, Congress expressly made the JVA amendments applicable to contracts entered into on or after December 1, 2003, and thereby provided that veterans covered under contracts entered into prior to the effective date of the JVA amendments remain covered under VEVRAA.
Section 60–300.2 Definitions
In the NPRM, OFCCP proposed to incorporate in this section many of the definitions contained in existing §60–250.2 without any substantive changes. The proposal called for some definitions in existing §60–250.2 to be incorporated in §60–300.2 with modifications necessitated by the JVA amendments. Further, OFCCP proposed to adopt a few definitions that have no parallel definitions in the existing §60–250.2. Likewise, some definitions in §60–250.2 were not included in the proposed rule because of the changes the JVA made to VEVRAA.
OFCCP received several comments on the proposed definitions, and all were from one commenter. The commenter, an employer association, requested that the final rule clearly indicate that only veterans of the United States armed forces, as opposed to veterans of the armed forces of other nations, are covered under the affirmative action provisions of VEVRAA. The commenter stated that one option for clarifying coverage under VEVRAA would be to add a separate definition for the term “veteran.” Alternatively, the commenter recommended that OFCCP add clarifying language to the definitions for the terms “disabled veteran” and “recently separated veteran.” The commenter noted that the definitions for the terms “other protected veteran” and “Armed Forces service medal veteran” already indicate that the regulations apply to veterans of the United States armed forces.
In response to this comment, the definitions for the terms “disabled veteran” and “recently separated veteran” in paragraphs (n) and (q), respectively, have been revised in the final rule to make clear that only veterans “who served on active duty in the U.S. military, ground, naval, or air service” are covered under the affirmative action provisions of VEVRAA. For the sake of clarity and consistency, this language also has been added to the definitions for the term “other protected veteran” in paragraph (p) and the term “Armed Forces service medal veteran” in paragraph (r) in the final rule. Paragraph (p) also replaces “person” with “veteran” for clarity.
The commenter also expressed the view that veterans who are discharged from service for certain serious offenses should not be entitled to the protections of the affirmative action provisions of VEVRAA. Accordingly, the commenter suggested that OFCCP adopt in the final rule coverage standards similar to those established under the regulations implementing the Uniformed Services Employment and Reemployment Rights Act (USERRA). The regulation at 20 CFR 1002.135 excludes from the protections of USERRA employees whose military service falls within one of four categories, including separation from service with a dishonorable or bad conduct discharge.
For purposes of the laws relating to veterans’ benefits, which include the affirmative action provisions of VEVRAA, the definition of veteran means “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” See 38 U.S.C. 101(2). Thus, dishonorably discharged veterans are excluded from the protections of VEVRAA by statute. Since persons who are separated from service with dishonorable discharges do not meet the statutory definition of “veteran,” these persons are not entitled to the protections of the affirmative action provisions of VEVRAA. For clarity, the final rule defines veteran in paragraph (z) as “a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable.”
One comment addressed the definition for the term “other protected veteran.” The commenter stated that employers need guidance on the wars, campaigns, and expeditions for which a campaign badge has been authorized. The commenter asserted that the information available on the Office of Personnel Management’s Web site is out-of-date and only somewhat relevant to private employers. The commenter suggested that OFCCP develop an up-to-date list of the covered conflicts for which a campaign badge has been authorized, or work with other affected agencies to develop and maintain a link to a Web site that contains a current list of the wars, campaigns, and expeditions that would qualify a veteran as an “other protected veteran.”
OFCCP agrees that contractors should have access to information about the veterans included in the category “other protected veterans.” Therefore, OFCCP will provide a link on its Web site to a list compiled by the Department of Defense, as well as a link to the information maintained by the Office of Personnel Management. These links will allow contractors to find lists of wars, campaigns, and expeditions for which a campaign badge has been authorized. OFCCP is providing these links as a courtesy to the contractor community. Contractors remain responsible for complying with their nondiscrimination and affirmative obligations regarding all protected veterans. Paragraph (p) is adopted in the final rule as stated earlier in this section.
The employer association providing comments on the definitions also stated that guidance was needed on the operations that would qualify a veteran as an “Armed Forces service medal veteran,” which is defined in paragraph (r). As was explained in the NPRM, Armed Forces service medals are awarded to military personnel who participate in a United States military operation deemed to be significant activity, and who encounter no foreign armed opposition or imminent hostile action. The commenter requested that OFCCP provide contractors access to an up-to-date list of the operations for which Armed Forces service medals have been awarded. OFCCP does not believe that providing such a list is necessary because the form used to document a veteran’s separation from active duty military service, called the DD Form 214, Certificate of Release or Discharge from Active Duty, indicates whether a veteran is a recipient of the Armed Forces service medal. Veterans who self-identify as an “Armed Forces service medal veteran” may be asked to provide a copy of this form. Paragraph (r) is adopted in the final rule as stated earlier in this section.
OFCCP proposed in the NPRM to incorporate in paragraph (y) the definition of the “employment service delivery system” that was added to the definitional section of VEVRAA, 38 U.S.C. 4101(7), by Section 5(c)(1) of the JVA. Under the JVA, “employment service delivery system” means a “service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” (The Wagner-Peyser Act established the Employment Service, which is a nationwide system of public employment offices.) The commenter recommended that OFCCP revise the definition of “employment service delivery system” in the final rule to state in plain language the name or type of agency with which the employer is to list its job openings.
OFCCP agrees that contractors should have clear guidance regarding the types of agencies with which the employer is to list job openings. However, OFCCP also recognizes contractors may wish to satisfy the mandatory job listing requirement in a variety of ways, depending on the number, timing, and location of the positions to be filled. For this reason, OFCCP believes that further defining the appropriate “employment delivery system” would unnecessarily constrain contractors’ flexibility to list with an appropriate delivery system. Instead, in §60–300.5 of the final rule, OFCCP has added language providing contractors with examples of the types of delivery systems with which contractors may list job openings. The revised language specifically provides that listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment delivery system. In light of these changes to §60–300.5, paragraph (y) of the final rule will remain as written in the NPRM.
Section 60–300.4 Coverage and Waivers
This section is identical to §60–250.4 in the existing VEVRAA regulations, except that proposed paragraphs (a)(1) and (a)(2) implement the JVA amendments and state that contracts of $100,000 or more are covered under VEVRAA. We received no comments for this section. Accordingly, §60–300.4 is adopted in the final rule as proposed.
Section 60–300.5 Equal Opportunity Clause
Paragraph (a) of the final rule contains the equal opportunity (EO) clause that must be included in all covered Government contracts and subcontracts. The language in paragraph (a)(1) of the EO clause is identical to the language in the parallel provision in existing §60–250.5, except that paragraph (a)(1) refers to the categories of veterans protected under the JVA. Thus, “disabled veterans” and “Armed Forces service medal veterans” are mentioned in paragraph (a)(1) of the final rule, while “special disabled veterans” and “veterans of the Vietnam era” are referenced in existing §60–250.5(a)(1).
Paragraphs (a)(2) and (a)(3) set out the contractor’s obligation to list employment openings with the appropriate employment service delivery system. The JVA amendments eliminated listing employment openings solely with America’s Job Bank as an option for complying with the mandatory job listing requirement. The JVA requires that contractors and subcontractors list their employment openings with the appropriate “employment service delivery system.” See 38 U.S.C. 4212(a)(2)(A). In addition to listing their employment openings with the appropriate employment service delivery system, the JVA provides that contractors and subcontractors also may list their employment openings with one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America’s Job Bank (or any additional or subsequent national electronic job bank established by the U.S. Department of Labor). Accordingly, paragraph (a)(2) of the final rule generally tracks the JVA provision, and provides that contractors must list employment openings with the appropriate employment service delivery system.
The three employer associations all expressed concern about the elimination of AJB as a means for contractors to fulfill the mandatory job listing requirements. One employer association asserted that contractors that regularly advertise multiple job openings in locations throughout the country will face huge administrative burdens if they are required to list each job opening with individual employment service offices. The employer association stated that listing with the AJB allowed contractors to publicize job opportunities on a nationwide basis through a single Web site on the Internet, rather than listing them with each local employment service office of each location where an open position is being filled. The association claimed that a small army of dedicated staff would be required to comply with the requirement to list each job with individual employment service offices.
Similarly, another employer association claimed that the money, time, and resources required to comply with the requirement to separately list job openings with each individual local employment services agency would be substantial. The commenter maintained that compliance with the separate listing requirement is made more challenging by the different protocols for listing jobs that exist in the various local employment services offices. According to the commenter, some employment service offices require contractors to post openings only by regular mail, some accept listings via fax, and some accept postings only by email.
One commenter urged OFCCP to consider alternatives to the proposed job listing provision that would reduce the burden on contractors. Two commenters raised questions about the status of a Department-sponsored solution that would allow contractors to meet both the current and the revised mandatory job listing requirement. One commenter recommended that the Department continue the effort to develop a Department-sponsored solution, and that OFCCP delay publishing the final rule until after a solution has been implemented.
Delaying publication of the final rule until development of a Department-sponsored solution has been completed is not a feasible option. In December 2005, the Government Accountability Office (GAO) issued a report entitled “Veterans’ Employment and Training Service Labor Actions Needed to Improve Accountability and Help States Implement Reforms to Veterans’ Employment Services” (GAO–06–176). The GAO Report sets forth results of a review of progress made in implementing the reforms to employment and training services for veterans required by the JVA. GAO noted that the Department has not yet issued regulations to implement the JVA amendments to the affirmative action provisions of VEVRAA and recommended that the Department issue such regulations as soon as possible. In response to the GAO Report, OFCCP agreed to expedite issuing the federal contractor regulations.
However, OFCCP appreciates the difficulties contractors may face if they must list job openings with multiple employment service delivery systems, particularly if those systems maintain different methods for posting job openings or if the contractor must act to fulfill multiple job openings in different geographical locations in a short period of time. Therefore, OFCCP has added language to this section providing that contractors may fulfill their job posting requirement by listing job openings with the appropriate state workforce agency job bank. The appropriate state workforce agency job bank shall be the job bank in which the job opening occurs. Contractors also may satisfy the posting requirement by listing job openings with the local employment service delivery system where the opening occurs.
A contractor may satisfy the mandatory job listing requirement by submitting job listings to the appropriate employment delivery system in a variety of ways, including via mail, facsimile (FAX), electronic mail, or other electronic postings. The vast majority of the state workforce agency job banks accept job postings via the Internet. Contractors may use third parties, such as private or non-profit sector job banks, Internet gateway and portal sites, and recruiting services and directories, to assist them with the transmission of job postings to the appropriate employment delivery system.
OFCCP believes that this approach allows contractors the necessary flexibility to determine the most effective way to comply with the mandatory job listing requirement, depending on the number, timing, and location of the positions to be filled. OFCCP will provide a link on its Web site to all state workforce agency job banks. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job postings. OFCCP is providing this link as a courtesy to the contractor community. Contractors remain responsible for complying with the requirement to list with the appropriate employment delivery system.
In order to make clear that contractors may satisfy the mandatory job listing requirement in a variety of ways, paragraph (a)(2) of the final rule reads as follows: “The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system. In paragraph (a)(4), OFCCP is changing the phrase “state employment security agency” to “state workforce agency” so that paragraph (a)(4) is consistent with paragraph (a)(2) of this section.
OFCCP also received two comments on the definition of “executive and senior management” in proposed paragraph (a)6.ii. In order to conform to a technical amendment made by the JVA, OFCCP proposed to use the term “senior management” in proposed paragraph (a)6.ii., instead of “top management,” which is the term used in existing §250.5(a)6.ii. However, in all other respects, the proposed definition for the term “executive and senior management” is identical to the definition of “executive and top management” found in the existing §250.5(a)6.ii.
One commenter observed that, in defining the term “executive and senior management” in proposed §60–300.5(a)6.ii. and current §250.5(a)6.ii., OFCCP followed the regulations implementing the exemption for executives from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA), published at 29 CFR part 541 (“part 541 regulations”). The commenter also noted that the Department of Labor revised the part 541 regulations, effective August 23, 2004, and that the revisions include streamlined tests for determining whether a person qualifies as an “executive” exempt from the overtime provisions. See 69 FR 22122. For the sake of consistency and in order to avoid confusion, the commenter maintained that the definition of “executive and senior management” in paragraph (a)6.ii. should conform to the updated tests for determining who qualifies as an “executive employee” set forth in the part 541 regulations.
In response to the comment, OFCCP has revised the definition of “executive and senior management” to reflect the standards for determining when a person qualifies as an “executive employee” found in 29 CFR 541.100 and 541.101. Thus, paragraph (a)6.ii. in the final rule defines the term “executive and senior management” as: (1) any employee “(a) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities; (b) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (c) Who customarily and regularly directs the work of two or more other employees; and (d) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight;” or (2) any employee “who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.”
Another commenter expressed the view that the proposed definition of “executive and senior management” could be interpreted to exclude from the mandatory job listing requirement “most low level managers and supervisors.” The commenter argued that “executive and senior management” should be defined as “positions which direct company policy and direction and not be hinged to supervision of employees.” OFCCP believes that its revised definition adequately addresses this commenter’s concerns, as supervisory responsibility is not the sole determinant of whether a job is considered “executive and senior management.” In order to be considered an “executive and top management” position exempt from the mandatory job listing requirement, a job must satisfy all of the factors listed in paragraph (a)6.ii.
Subpart B—Discrimination Prohibited
Section 60–300.21 Prohibitions
The final rule adopts §60–300.21 as proposed. This section is identical to existing §60–250.21, except that the categories of veterans covered under the JVA are referenced in the final rule.
Paragraph (c) provides that it is unlawful for contractors to participate in contractual arrangements that have the effect of subjecting the applicants and employees who are covered veterans to discrimination. A comment from a workforce development agency expressed concerns about the contractual arrangements federal contractors have with temporary employment agencies. The commenter asserted that many federal contractors use temporary employment agencies to recruit candidates for job vacancies and that when the temporary agencies receive job orders from a client they tend to refer candidates they have “on-file.” According to the commenter, temporary agencies are not obligated to comply with the mandatory job listing requirements because they “are not by definition subcontractors to the federal contractor.” The commenter argued that, to better serve veterans, either temporary agencies should be considered as subcontractors, or contractors listing job orders with temporary agencies also should be required to list their job orders with the employment service.
A contractor’s use of an employment agency does not relieve the contractor of its obligation to comply with the mandatory job listing requirement. Section 60–250.5(a) expressly provides that “listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort * * *” (Emphasis supplied.) Thus, the regulations generally require contractors to list with the appropriate employment service delivery system the jobs that also are provided to an employment agency. The only jobs listed with an employment agency that need not be listed with the employment service are those exempt from the mandatory job listing requirement. Section 60–250.5(a)6.i exempts from the mandatory job listing requirement positions that are executive and senior management, positions filled from within the contractor’s organizations, and positions lasting three days or less.
In addition, paragraph (c) of this section forbids contractors from using an employment agency that discriminates against covered veterans. Accordingly, a contractor would violate VEVRAA if it uses an employment agency that discriminates against veterans to recruit for vacancies.
Further, OFCCP disagrees with the commenter’s assertion that all temporary employment agencies are excluded from coverage under VEVRAA. Section 60–300.2(l), as does the parallel provision in the part 60–250 regulations, defines the term “subcontract” as “any agreement or arrangement between a contractor and any person * * * which, in whole or in part, is necessary to the performance of any one or more contracts; or * * * under which any portion of the contractor’s obligation under any one or more contracts is performed, undertaken, or assumed.” Whether a particular subcontract is covered under the VEVRAA regulations depends on a variety of factors such as the requirements of the Government contract in issue and the role of the subcontractor in fulfilling the obligations of the Government contract. Thus, some, but certainly not all, temporary employment agencies may have agreements with Government contractors that would render them a covered subcontractor under VEVRAA.
Section 60–300.22 Direct Threat Defense
This section is identical to existing §60–250.22, except that the cross-reference is to §60–300.2(w) of this final rule. OFCCP received no comments on this section. It is adopted in the final rule as proposed.
Section 60–300.23 Medical Examinations and Inquiries
This section is identical to existing §60–250.23, except that the proposal references the category of “disabled veteran(s)” rather than “special disabled veterans.” No comments were submitted on this section. The final rule adopts §60–300.23 as proposed.
Section 60–300.24 Drugs and Alcohol
This section is identical to existing §60–250.24, except that this section includes a citation to §60–300.23(d). OFCCP received no comments on this section. Accordingly, the final rule adopts this section as proposed.
Section 60–300.25 Health Insurance, Life Insurance and Other Benefit Plans
This section is identical to §60–250.25 in the current VEVRAA implementing regulations, except that “disabled veteran” rather than “special disabled veteran” is referenced in paragraph (d). We received no comments on this section. The final rule adopts §60–300.25 as proposed.
Subpart C—Affirmative Action Program
Section 60–300.40 Applicability of the Affirmative Action Program Requirement
OFCCP proposed paragraph (a) raised the coverage threshold to a contract of $100,000 or more. As discussed in the preamble discussion of the §60–300.1, some comments expressed concern about the increased burden that would result if contractors are required to develop and maintain two AAPs—one under the part 60–250 and a second AAP under part 60–300. OFCCP explained that contractors subject to the final rule and the regulations in part 60–250 may develop a single AAP that addresses the requirements under parts 60–250 and 60–300.
One commenter asked about the deadline for developing the AAP required under 60–300.40. Paragraph (b) provides that a contractor must develop an AAP within 120 days of the commencement of a contract. Under the existing VEVRAA regulations, a contractor with a contract of $50,000 or more must develop a written AAP. Any contractor with a contract of $100,000 or more that was entered into on or after December 1, 2003, should already have an AAP in place that would meet the requirements of this section. The final rule adopts §60–300.40 without change.
Section 60–300.42 Invitation to Self-Identify
This section is identical to §60–250.42, except that the categories of veterans protected under the JVA are referenced in this section. In addition, the regulatory citations in this section are to provisions in the final rule. We received one comment to this section asking for clarification on the self-identification process. The process is explained in this section. Section 60–300.42 is adopted in the final rule as proposed.
Section 60–300.43 Affirmative Action Policy
This section is identical to §60–250.43, except that this section specifies the categories of veterans covered under the JVA, and contains citations to provisions in the proposed rule. No comments were received on this section. Accordingly, §60–300.43 is adopted in the final rule as proposed.
Section 60–300.44 Required Contents of Affirmative Action Programs
With the exception of changes necessitated by the JVA amendments, this section is identical to §60–250.44 in the existing VEVRAA implementing regulations. The categories of veterans protected under the JVA are referenced throughout this section. In addition, consistent with the technical amendments to VEVRAA, the term “senior management” is used in paragraph (h)(2)(i), which sets out the requirement that the contractor assign responsibility for implementation of the AAP. Further, this section contains citations to provisions in the final rule. We received no comments on §60–300.44 and it is adopted in the final rule without change.
Subpart D—General Enforcement and Complaint Procedures
Section 60–300.60 Compliance Evaluations
This section is identical to §60–250.60, except for the differences necessitated by the JVA. One difference is that the categories of veterans protected under the JVA are referenced in this section. The other difference is found in paragraph (c), which addresses OFCCP verification of contractor compliance with reporting requirements. Paragraph (c) of existing §60–250.60 provides that OFCCP may verify whether a contractor is complying with its obligation to file its Annual VETS–100 Report pursuant to the regulations in 41 CFR part 61–250. The regulations in part 61–250, which were issued by VETS, apply only to contracts entered into before December 1, 2003.
Paragraph (c) of this section provides that OFCCP may verify whether a contractor has complied with applicable reporting requirements required under regulations promulgated by VETS. OFCCP changed “any reporting requirement” from the NPRM to “applicable reporting requirements” in the final rule for clarity. This change gives OFCCP authority to investigate compliance with all applicable reporting requirements required under regulations promulgated by VETS, including any new reporting requirements that VETS may implement as a result of the JVA.
We received two comments concerning the reporting requirements under VEVRAA that are administered by VETS. One commenter stated that contractor burden will increase because of the requirements to submit the VETS–100 under both parts 60–250 and 60–300. This same commenter suggested that OFCCP coordinate its final rule to any changes to the VETS–100 Report under VETS. As explained in the discussion of §60–300.1, the VEVRAA implementing regulations administered by OFCCP contain no reporting requirements. Accordingly, contractors subject to the existing regulations in part 60–250 and the regulations in part 60–300 will not face an increase in their reporting burden under OFCCP’s rule.
We also received one comment concerning the relationship between OFCCP and VETS compliance evaluations. Under the current regulations in part 60–250.5, during the onsite portion of a compliance evaluation, a compliance officer confirms with the contractor that it has listed its employment openings with the local employment service office and may contact the local employment service office directly to verify that the contractor has complied with the mandatory job listing requirements. Under this final rule, OFCCP will confirm that contractors holding Government contracts subject to the JVA have listed employment openings with the appropriate employment delivery system and may contact the employment delivery system directly to verify this information.
Under the current regulations in part 60–250.5, OFCCP also confirms with the contractor that it has completed a VETS–100 report during the onsite portion of a compliance evaluation. If the contractor has not completed the VETS–100 report, OFCCP will notify VETS. Under this section of the final rule, OFCCP will confirm that a contractor holding a Government contract covered by the JVA has completed any applicable VETS reporting requirements, including any new reporting requirements that VETS may implement as a result of the JVA. If the contractor has not completed any applicable reporting requirements, OFCCP will notify VETS.
Section 60–300.61 Complaint Procedures
This section is identical to §60–250.61, except for the changes necessary to conform to the amendments made by the JVA. Further, the regulatory citations in this section are to sections in the final rule. In paragraph (a) of the final rule, OFCCP is changing “state employment security agency” to “state workforce agency” to be consistent with §300.5.
Section 60–300.64 Show Cause Notices
Except for the citations to provisions in the final rule, this section is identical to §60–250.64. Section 60–300.64 is adopted in the final rule as proposed.
Section 60–300.65 Enforcement Proceedings
Except for the citations to provisions in the final rule, this section is identical to §60–250.65. We received no comments to this section; it is adopted in the final rule without change.
Section 60–300.66 Sanctions and Penalties
Except for the citations to provisions in the final rule, this section is identical to §60–250.66. The final rule adopts §60–300.66 as proposed.
Section 60–300.69 Intimidation and Interference
This section is identical to §60–250.69, except that this section refers to the categories of veterans protected under the JVA. Section 60–300.69 is adopted in the final rule without change.
Subpart E—Ancillary Matters
Section 60–300.84 Responsibilities of Appropriate Employment Service Delivery System
According to VEVRAA, 38 U.S.C. Section 4212 (a)(2)(B), appropriate employment service delivery systems are required to give priority in referral to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans to employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause. According to Section 4212(a)(2)(c), the appropriate employment service delivery system also shall provide a list of such employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of title 38.
OFCCP proposed §60–300.84 was identical to current §60–250.84. In the final rule, OFCCP has revised this section to clarify the scope of its authority over, and its interactions with, these employment delivery systems. OFCCP may contact the employment delivery systems to request information pertinent to whether the contractor is in compliance with the mandatory job listing requirements. OFCCP does not, however, have responsibility for ensuring that the appropriate employment delivery systems provide priority referral to covered veterans. Accordingly, OFCCP added the words “By statute” to the first sentence of this section to clarify that the obligation of employment delivery systems to provide veterans with priority of service arises by statute, and not because of a requirement imposed by OFCCP.
Appendix A to Part 60–300—Guidelines on a Contractor’s Duty To Provide Reasonable Accommodation
Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix A to part 60–300 is substantially similar to Appendix A to part 60–250 in the existing VEVRAA regulations. We received no comments on Appendix A. Accordingly, Appendix A is adopted in the final rule without change.
Appendix B to Part 60–300—Sample Invitation to Self-Identify
Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix B to part 60–300 is substantially similar to Appendix B to part 60–250 in the existing VEVRAA regulations. We received no comments on this aspect of the proposal. The final rule adopts Appendix B as proposed in the NPRM.
Appendix C to Part 60–300—Review of Personnel Processes
Proposed Appendix C to part 60–300 is substantially similar to Appendix C to part 60–250 in the existing VEVRAA regulations, except for the references to the categories of veterans covered under the JVA and citations to provisions in the proposed rule. We received no comments on Appendix C. The final rule adopts Appendix C without change.
Regulatory Procedures
Executive Order 12866
The Department is issuing this final rule in conformance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, but is not economically significant as defined in section 3(f)(1). Therefore, the information enumerated in section 6(a)(3)(C) of the order is not required. Pursuant to Executive Order 12866, this rule has been reviewed by the Office of Management and Budget (OMB).
Executive Order 13132
OFCCP has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Regulatory Flexibility Act
This rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, the Department concludes that this rule will not have a significant economic impact on a substantial number of small entities. The Secretary has certified to the Chief Counsel for Advocacy of the Small Business Administration to this effect. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required.
Unfunded Mandates Reform
Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government.
Unfunded Mandates Reform Act of 1995—This rule does 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 contained in the existing VEVRAA regulations, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1215–0072 (Recordkeeping and Reporting Requirements-Supply and Service) and OMB Control No. 1215–0163 (Construction Recordkeeping and Reporting). The information collection requirements contained in the existing complaint procedures regulation are currently approved under OMB Control No. 1215–0131. This rule adopts a new set of VEVRAA implementing regulations that incorporate the changes made by the JVA amendments, and apply to Government contracts entered on or after December 1, 2003. The JVA amended VEVRAA by increasing the contract coverage threshold, changing the categories of veterans protected under the law, and changing the manner in which the mandatory job listing requirement is to be implemented. The increase in the contract coverage threshold from $25,000 to $100,000 may result in a decrease in the number of respondents and burden hours. However, this rule does not make any changes to the currently approved information collections. Consequently, this rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
List of Subjects in 41 CFR Part 60–300
Administrative practice and procedure, Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Individuals with disabilities, Investigations, Reporting and recordkeeping requirements, and Veterans.
Signed at Washington, DC, this 2nd day of August, 2007.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
[FR Doc. E7-15385 Filed 8-7-07; 8:45 am]
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