The Office of Federal Contractor Compliance Programs (OFCCP), the agency that administers various affirmative action laws applicable to federal contractors, published proposed regulations on April 26, 2011, that, if implemented, will significantly increase contractors' obligations as they relate to protected veterans.聽
As with the current regulations, the proposed regulations will apply to companies with a direct contract (as opposed to federally-assisted contracts) with the federal government entered into, on or after December 1, 2003 and valued at $100,000 or more, or with a subcontract of the same value with a direct federal contractor that is necessary for the completion of a federal contract.聽 Companies with covered contracts should become familiar with the proposed regulations and consider the effect the changes will have on their business.聽 If a contractor wishes to express a concern related to the proposed regulations, the OFCCP is accepting comments until June 27, 2011 (visit the for instructions on submitting comments).
As expected, the proposed regulations expand the obligations of federal contractors toward veterans.聽 Under the proposed regulations, direct federal contractors will be required to track the veteran status of applicants (in addition to new hires) and, if the contractor has 50 or more employees, establish hiring goals for protected veterans.聽 The proposed regulations also require federal contractors with 50 or more employees to document employment decisions affecting protected veterans thoroughly and to retain such records for an expanded period of time.
In addition, covered federal contractors will be required to establish at least three "linkage agreements" with certain veterans organizations (which has been a focus of the OFCCP in recent audits).聽 The regulations also implement mandatory obligations for internal communications about the contractor's affirmative action policy.聽 Each of these proposed changes will increase the affirmative action burdens of federal contractors and the cost of doing business with the federal government.
Applicant Tracking
One of the most significant changes in the proposed regulations relate to applicant tracking and data gathering.聽 Currently, covered federal contractors are not required to track the veteran status of applicants, but must invite new employees to identify their specific veteran status after the individual accepts an offer of employment.聽 Under the proposed regulations, covered federal contractors (apparently without regard to number of employees) will be required to invite all applicants to identify voluntarily whether they are a protected veteran generally (without asking the applicants to identify the specific protected veteran category into which they fall).聽 This will require changes to contractors' current applicant questionnaires, which likely only cover gender and race/ethnicity.聽 Federal contractors will still be required to invite new employees to identify voluntarily the specific veteran category into which they fall.
In addition, covered federal contractors with 50 or more employees will be required under the proposed regulations to maintain certain data related to their applicants and new hires.聽 Specifically, the federal contractor must maintain the following data:
- The number of referrals of protected veterans received from the applicable veterans or unemployment office (presumably, even if the individuals are not qualified);
- The total number of referrals (without regard to whether such referrals are protected veterans) received from the veterans or unemployment office (again, presumably even if not qualified);
- The number of applicants who identified themselves as protected veterans (or who are otherwise known to be protected veterans);
- The total number of job openings and total number of jobs filled;
- The ratio of jobs filled to job openings;
- The total number of applicants for all jobs;
- The ratio of protected veteran applicants to all applicants;
- The number of protected veteran applicants hired;
- The total number of applicants hired; and
- The ratio of protected veterans hired to all hires.
- The average percentage over the past three years of veterans in the civilian labor force in the state where the contractor is located.聽 These percentages will be calculated by the Bureau of Labor Statistics and published on the OFCCP website.
- The number of veterans, over the previous four quarters, who were participants in the unemployment or veterans service in the state where the contractor is located.聽 These percentages will be tabulated by the Veterans' Employment and Training Service and published on the OFCCP website.
- The ratios (described above) calculated by the contractor for the previous year.
- The contractor's recent assessment of the effectiveness of its outreach and recruitment efforts.
- Any other factors that affect the availability of qualified protected veterans.
- Each position or training program for which the employer considered an applicant or current employee who is a covered veteran;
- A statement regarding the reason the employer rejected the individual for the position or training and any accommodation considered; and
- A description of any accommodation provided to a disabled veteran who is selected for a position or training.
- The Department of Veterans Affairs Regional Office;
- The veterans' counselors and coordinators on college campuses;
- The service officers of the national veterans' groups active in the area;
- Local veterans' groups and veterans' service centers; and
- The Department of Defense Transition Assistance Program.
- Include their affirmative action policy in their policy manuals;
- Inform all employees and applicants of their commitment to affirmative action, including annual meetings with employees to discuss their affirmative action policies, explain the responsibilities under these policies, and identify opportunities for advancement;
- Conduct meetings with executive, management and supervisory personnel to explain the intent of the policy and the individual responsibilities for implementation;
- Discuss the policy thoroughly in employee orientation and management training; and
- Meet with any union representing its workforce to inform the union of the contractor's policy and request the union's cooperation.