DOJ Publishes New Affirmative Action Regulations for Federal Contractors and Subcontractors


By: Frank Hupfl
 Federal contractors will soon face increased affirmative action requirements in the recruitment, hiring, promotion, and retention of covered veterans and disabled persons.  On September 24, 2013, the U.S. Department of Labor (“DOL”) published two final rules expanding affirmative action regulations under the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act (“Section 503”).  Effective March 24, 2014, federal contractors and subcontractors will be subject to new and significant burdens, including the adoption of hiring benchmarks for veterans and a utilization goal for disabled individuals.  Contractors with written affirmative action programs in place on the effective date may maintain that policy until the end of the plan year.
While far from exhaustive, the following highlights the key provisions of the rules:
Veterans Rule:
The final VEVRAA rule requires federal contractors and subcontractors to establish and document annual hiring benchmarks.  The annual hiring benchmark must be based on either the national percentage of veterans in the workforce (currently 8 percent) or based on a percentage target set by the contractor, subject to certain requirements and the contractor’s particular hiring situation.  Moreover, if the contractor decides to set its own percentage target, it must document the hiring benchmark it establishes and retain the data for three years.
Disabled Persons Rule:
Under the final Section 503 rule, contractors will be subject to a 7 percent utilization goal for the employment of qualified disabled individuals in each of the job groups established under the employer’s affirmative action plan.  Smaller employers (fewer than 100 employees) may establish a target of 7 percent for the entire workforce.
Changes Under Both Rules:
Self-Identification:  Contractors must provide applicants with the opportunity to self-identify as either a protected veteran or an individual with a disability at the pre- and post-offer stage.
Equal Opportunity Clause:  Contractors must include specific equal opportunity language applicable to protected veterans and qualified disabled persons in their contracts.
OFCCP Access:  Contractors must allow the DOJ’s Office of Federal Contract Compliance Programs (“OCFFP”) to access their records.
Data Collection Obligations:  Both sets of regulations include detailed data collection requirements.  Contractors must annually collect and retain information related to the employer’s recruiting efforts, the number of veterans and individuals with disabilities who applied that year, and the employer’s hiring decisions for the year.
For more details and the actual language of the regulations, click here and here.