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By Ben Mathis
The OFCCP has issued a notice of proposed rulemaking recommending proposed regulations regarding the affirmative action obligations and non-discrimination rules for protected veterans. These regulations, if finalized, would affect all employers with a single government contract valued at $100,000 or more and 50 or more employees.
Initially, the regulations contain new definitions for veterans, and the OFCCP has stated that it will update the VETS 100 form for contractors to use the new definitions.
The new regulations also contain a new required notice to employees and applicants of the contractor’s affirmative action obligations covering veterans, and this notice must be available in formats understandable to disabled individuals, including Braille. Contractors also must post an EEO policy statement on bulletin boards in a form that is accessible and understandable to disabled veterans, and this statement must include the contractor CEO’s support for the affirmative action program, and other required language. In addition to these notices, the regulations also include strict requirements for internal dissemination of the affirmative action obligations.
The proposed regulations also include onerous job vacancy posting requirements, which require that employers register with each state as a federal contractor interested in receiving veteran referrals, and post jobs according to those requirements. Contractors also must undertake new outreach efforts, including establishing “linkage agreements” with local veteran employment representatives.
The proposed regulations require employers to invite applicants to self-identify themselves as a protected veteran prior to an offer of employment. The OFCCP will then use this information to track pre-offer effectiveness of recruiting efforts and affirmative action requirements.
Perhaps most importantly, contractors must implement tracking procedures for veterans similar to the tracking procedures already in place for minorities and females, including (1) for each protected veteran applicant, the vacancy and training program for which the applicant was considered; (2) for each protected veteran employee, the promotion and training program for which the employee was considered; (3) for each protected veteran rejected for employment, promotion or training (applicant and/or employee), the reason for rejection and a description of accommodations considered if the veteran is disabled; and (4) any accommodation which would make it possible to place the disabled veteran in a job. The rules would change the accommodation requirements, so that when an accommodation would cause an undue burden, the contractor must allow the veteran an opportunity to provide their own accommodation, or pay for the accommodation themselves.
The rules similarly contain new requirements for maintaining applicant and hire data on veterans. Contractors must document and review referral data, applicant data and total hiring data, including: (1) the number of priority referrals of veterans, the total referrals received from employment services systems, and the ratio of priority referrals of veterans to total referrals; (2) the number of self-identified veteran applicants, the total number of applicants for all jobs, and the ratio of protected applicants to total applicants; and (3) the number of protected veterans hired, the total number of hires, and the ratio of protected veteran hires to total hires. Additionally, employers must track the total number of job openings, the number of jobs filled and the ratio of job openings to jobs filled. This data must be documented annually and must be maintained for five years (as opposed to the two year requirement for gender and minority data).
Finally, the proposed regulations require that an employer set a benchmark for the number of protected veterans to be hired over the next 12 months. The standards for setting this benchmark are vague and poorly defined.
Of course, these are only highlights of the proposed changes. For federal contractors, these are significant changes that will require updates to your affirmative action plans and to your applicant tracking systems. These proposed rules demonstrate the OFCCP’s new focus on protecting veterans, and the information likely will be used by the OFCCP during compliance audits as another source of shortfalls in hiring and alleged discrimination. Importantly, these changes are not presently final, and contractors may submit comments to the OFCCP on or before June 27, 2011.
For more information, contact Ben Mathis at 770.818.1402 or [email protected]