The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) requires covered federal contractors and subcontractors to take affirmative action to employ and advance in employment certain categories of veterans. The specific affirmative action obligations are spelled out in regulations issued by the Office of Federal Contract Compliance Programs (OFCCP). Five years ago, VEVRAA was amended by the Jobs for Veterans Act of 2002 (JVA), but the OFCCP regulations were not immediately revised to reflect those changes. Consequently, for the past several years, federal contractors and subcontractors have been in the awkward position of being subject to statutory requirements that did not match up with the outdated OFCCP regulations. On August 8, 2007, however, the OFCCP published its long-awaited final regulations incorporating the changes wrought by the JVA.
The JVA had amended VEVRAA by raising the threshold of covered federal contracts from $25,000 to $100,000, by altering the categories of veterans covered by the law, and by changing the requirements on where covered contractors must publicly list job openings. The new regulations, to be codified at 41 C.F.R. pt. 60-300, incorporate these changes while otherwise mirroring the pre-existing VEVRAA regulations found in 41 C.F.R. pt. 60-250 (which remain in effect and applicable to certain federal contracts and subcontracts predating the JVA). The new regulations take effect on September 7, 2007.
The OFCCP’s New VEVRAA Regulations
The new OFCCP regulations apply only to contractors and subcontractors with federal contracts over $100,000 entered into or modified on or after December 1, 2003. Federal contractors and subcontractors with contracts that were entered into before that date and have not been modified since December 1, 2003, are required to continue following the pre-existing VEVRAA regulations codified at 41 C.F.R. pt. 60-250 with respect to those contracts. Contractors and subcontractors with covered federal contracts subject to the pre-existing regulations as well as covered federal contracts entered into or modified on or after December 1, 2003 must comply with both the new regulations (part 60-300) and the pre-existing regulations (part 60-250) until their contracts entered into prior to December 1, 2003 expire. Although both sets of regulations require covered employers with fifty or more employees to adopt affirmative action plans (AAPs) for the benefit of covered veterans, the OFCCP makes clear that employers subject to both sets of regulations need not prepare two different AAPs. Because the new regulations do not affect the requirements for the contents of a written AAP under VEVRAA, employers covered by both sets of regulations can easily bring AAPs prepared in compliance with the pre-existing VEVRAA regulations into compliance with the new regulations by adding the categories of protected veterans covered under the JVA, as described below.
The new regulations require covered contractors to take affirmative action in favor of the four categories of veterans recognized under the JVA: (1) disabled veterans, (2) recently separated veterans, (3) “other protected veterans,” and (4) Armed Forces service medal veterans. These categories differ in some respects from the categories of veterans protected by VEVRAA before the JVA. The JVA eliminated the category of Vietnam era veterans from coverage under VEVRAA, although many of the veterans in that discontinued category are expected to fall within at least one of the JVA’s categories of covered veterans. It also added the category of “Armed Forces service medal veterans,” defined as 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 also expanded the definition of disabled veterans to include all veterans with service-connected disabilities, instead of only those with certain percentages of disability. Finally, the JVA expanded the coverage of “recently separated veterans” from one to three years after discharge or release from active duty. The category of “other protected veterans” remains unchanged from pre-existing law and covers veterans who served on active duty in a war or in a campaign or expedition for which a campaign badge has been authorized.
Employers covered by the new regulations will be required to extend to applicants, post-offer, the opportunity to identify themselves as belonging to any of the new categories of protected veterans under the JVA. The OFCCP has included a sample invitation to self-identify as an appendix to the new regulations.
The final major change implemented by the new regulations concerns the listing of employment opportunities. Contractors and subcontractors subject to VEVRAA are required to list job openings publicly, and the pre-existing VEVRAA regulations provided that this requirement could be satisfied by listing openings solely with America’s Job Bank. The JVA, however, added a requirement that contractors and subcontractors list their employment openings with the appropriate “employment service delivery system.” The new regulations generally track this language. However, in response to comments received from three employer associations expressing concern that requiring contractors to list job openings separately with individual local employment service agencies would be burdensome, the OFCCP added language to the new regulations providing that contractors may fulfill their job-posting obligations by listing job openings with the appropriate state workforce agency job bank. A link to the state workforce agency job banks is available at http://careeronestop.org/ajbprsjbl/. This link allows contractors to identify those state workforce agency job banks that accept electronically transmitted job listings.
Employers with federal contracts or subcontracts should examine those documents to determine when they were initially executed and when they were last modified to determine whether the new OFCCP regulations will apply. It is likely that most contracts entered into before December 1, 2003 will have been modified since then and will therefore be subject to the new regulations, provided they meet the higher dollar threshold for coverage. Employers that have fifty or more employees and that are covered by the new regulations must have a written affirmative action plan for covered veterans that complies with the new requirements. Those employers should review their affirmative action plans and all related documents (including invitations to self-identify, workplace postings, and employee handbook policies on affirmative action and nondiscrimination) to ensure that they reflect the categories of protected veterans described in the new regulations. They should also ensure that they are listing employment openings with appropriate state workforce agency job banks and that their job-listing procedures no longer refer to America’s Job Bank, which ceased operations on July 1, 2007.