Revised Regulations to Strengthen Affirmative Action for Vietnam Veterans and Disabled

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced the overhaul of the regulations for the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act (“Rehabilitation Act”). VEVRAA prohibits employers with federal contracts of $25,000 or more from discriminating against certain protected veterans and requires them to take affirmative action in the hiring, retention, and promotion of qualifying veterans. The Rehabilitation Act requires employers with federal contracts that exceed $10,000 to provide equal opportunity and take affirmative action to employ, retain, and promote qualifying disabled individuals. The revisions strengthen these regulations in order to provide greater opportunities for employment to these two disproportionately underemployed groups.

New Hiring Benchmarks

The revisions to VEVRAA require the use of one of two methods to establish new benchmarks for hiring qualified veterans. Employers must either match the percentage of veterans in the civilian labor force or establish their own benchmarks using data from the Bureau of Labor Statistics, Veterans’ Employment and Training Service and Employment and Training Administration. The OFCCP will provide information to support both methods in their Benchmark Database.

Revisions to the Rehabilitation Act set an aspirational goal of employing 7% of the employers’ total workforce of qualified disabled individuals. Employers must now conduct an annual analysis of their workforce and implement action-oriented programs to meet this goal. Additional changes have been made to the definition of “disability” as necessitated by the ADA Amendments Act of 2008.

Other Notable Changes

Employers must collect data of all veterans and qualified disabled persons that apply for open positions and the number of each that are hired. Records must be maintained for three years to highlight trends.
Employers must also provide access to hiring information to the State or appropriate job listing agency when listing any job openings.
Contractors must invite applicants to identify themselves as qualified veterans or disabled persons at both the pre and post-offer phases. Contractors must also invite their employees to self-identify as qualified disabled persons every five years. Sample invitations will be provided in the final rules.
Subcontracts will now require a short phrase about equal opportunity employment to alert the subcontractor of their duties as a federal contractor.
Employers must allow the OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at the OFCCP’s discretion. In addition, upon request, employers must inform the OFCCP of all formats in which the employer maintains its records and provide them to the OFCCP in whichever of those formats the OFCCP requests.
The revisions rescind the outdated regulations at 41 C.F.R. Part 60-250 in its entirety. However, veterans who were formerly protected under Part 60-250 will still be protected from discrimination under the revised regulations.

The final revisions of these rules will be published in the Federal Register and become active 180 days thereafter. Federal contractors are advised to make the necessary changes to their affirmative action plans to comply with the new regulations as soon as possible. Links the final rules are provided below:

Members of the Labor and Employment practice group routinely assist clients with affirmative action plans. If you have any questions regarding the revisions to VEVRAA or the Rehabilitation Act, please do not hesitate to contact your employment counsel at Smith, Gambrell, & Russell LLP.