[Federal Register: August 8, 2007 (Volume 72, Number 152)]
[Rules and Regulations]
[Page 44393-44416]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au07-11]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-300
RIN 1215-AB46
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Disabled Veterans, Recently
Separated Veterans, Other Protected Veterans, and Armed Forces Service
Medal Veterans
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is
publishing a new set of regulations to implement the amendments to the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974 (``VEVRAA'') that were made by the Jobs for
Veterans Act (``JVA'') enacted in 2002. The JVA amendments raised the
threshold dollar amount of the Government contracts that are subject to
the affirmative action provisions of VEVRAA, changed the categories of
veterans protected by the law, and changed the manner in which the
mandatory job listing requirement is to be implemented. The final
regulations published today apply only to covered Government contracts
entered into or modified on or after December 1, 2003. The existing
VEVRAA implementing regulations found in 41 CFR part 60-250 will
continue to apply to Government contracts entered into before December
1, 2003.
DATES: Effective Date: These regulations are effective September 7,
2007.
FOR FURTHER INFORMATION CONTACT: Lynn A. Clements, Acting Director,
Division of Policy, Planning, and Program Development, Office of
Federal Contract Compliance Programs, 200 Constitution Avenue, NW.,
Room N3422, Washington, DC. 20210. Telephone: (202) 693-0102 (voice) or
(202) 693-1337 (TTY).
SUPPLEMENTARY INFORMATION:
Current Regulations and Rulemaking History
The Jobs for Veterans Act (``JVA''), (Pub. L. 107-288, 116 Stat.
2033), was signed by the President on November 2, 2002. Section 2(b)(1)
of the JVA amended the affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C.
4212, (``VEVRAA''). Section 2(b)(3) of the JVA made the amendments
applicable to Government contracts entered into on or after December 1,
2003.
Prior to amendment by the JVA, the affirmative action provisions of
VEVRAA required parties holding Government contracts or subcontracts of
$25,000 or more to ``take affirmative action to employ and advance in
employment qualified special disabled veterans, veterans of the Vietnam
era, recently separated veterans, and any other veterans who served on
active duty during a war or in a campaign or expedition for which a
campaign badge has been authorized.'' OFCCP has adopted the term
``other protected veteran'' to refer to ``veterans who served on active
duty during a war or in a campaign or expedition for which a campaign
badge has been authorized.''
In addition, prior to amendment, VEVRAA required that the Secretary
promulgate regulations requiring contractors ``to list immediately with
the appropriate local employment service office all of its employment
openings, except that the contractor may exclude openings for executive
and top management positions, positions which are to be filled from
within the contractor's organization, and positions lasting three days
or less.''
The JVA amendments made three significant changes to the
affirmative action provisions of VEVRAA. First, section 2(b)(1) of the
JVA increased the coverage threshold from a contract of $25,000 or more
to a contract of $100,000 or more.
Second, the JVA amendments changed the categories of covered
veterans under VEVRAA. The JVA eliminated the category of Vietnam era
veterans from coverage under VEVRAA. However, many Vietnam era veterans
may remain covered in other categories. The JVA added as a new category
of covered veterans--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 expanded the coverage of veterans with
disabilities. Prior to amendment by the JVA, VEVRAA
[[Page 44394]]
covered veterans rated as having 10% to 20% serious employment handicap
or a disability rated 30% or more by the Department of Veterans
Affairs. The JVA amendments expanded coverage to include all veterans
with service-connected disabilities. The JVA also expanded the coverage
of ``recently separated veterans'' from one to three years after
discharge or release from active duty.
Third, the JVA modified the mandatory job listing requirement for
covered contractors. Currently, the regulation at 41 CFR 60-250.5
allows contractors to satisfy their job listing obligations by listing
employment openings either with the appropriate local employment
service office or with America's Job Bank (AJB). Section 2(b)(1) of the
JVA requires the Secretary to promulgate regulations that obligate each
covered contractor to list all of its employment openings with ``the
appropriate employment service delivery system (as defined in section
4101(7) of this title).'' Section 5(c)(1) of the JVA defines the term
``employment service delivery system'' as ``a service delivery system
at which or through which labor exchange services, including
employment, training, and placement services, are offered in accordance
with the Wagner-Peyser Act.'' See 38 U.S.C. 4101(7). (The Wagner-Peyser
Act established the Employment Service, which is a nationwide system of
public employment offices.) The JVA provides that a contractor also may
list employment openings with ``one-stop career centers under the
Workforce Investment Act of 1998, other appropriate service delivery
points, or America's Job Bank (or any additional or subsequent national
electronic job bank established by the Department of Labor).'' Thus, as
a result of the JVA amendments, listing job openings solely with AJB
will no longer comply with the requirements of VEVRAA.
On January 20, 2006, OFCCP published for a 60-day comment period a
Notice of Proposed Rulemaking (NPRM), 71 FR 3352, to implement the JVA
amendments to VEVRAA. OFCCP published a notice on March 21, 2006, 71 FR
14135, which corrected the e-mail address for submitting comments on
the January 20 NPRM, and extended the comment period for seven days, or
until March 28, 2006. OFCCP received five comments: two from State
workforce development agencies, and three from employer associations
whose members include Federal contractors. OFCCP reviewed and carefully
considered the comments in the development of this final rule.
Overview of the Final Rule
The final rule adopts regulations implementing the JVA amendments
to VEVRAA that will be codified in a new 41 CFR part 60-300. OFCCP
explained in the preamble of the NPRM that most provisions in part 60-
300 are identical to the parallel provisions in the existing VEVRAA
implementing regulations in 41 CFR part 60-250, except where
differences are required to implement the JVA amendments. Consequently,
the same section numbers are used in both parts 60-250 and 60-300.
Generally, the differences between the two sets of regulations are
found in the provisions that reference the contract coverage threshold
and the categories of covered veterans. In the Section-by-Section
Analysis of the NPRM, OFCCP highlighted only the provisions in the
proposed rule that differ from provisions in the part 60-250
regulations. Likewise, the provisions in the part 60-250 regulations
that have been incorporated in today's final rule without substantive
change are omitted from the discussion in the Section-by-Section
Analysis of Comments and Revisions below.
This final rule, for the most part, adopts the provisions that were
proposed in the January 20 NPRM. However, a few of the proposed
provisions have been modified in response to the public comments. The
discussion which follows identifies the significant issues raised in
comments received in response to the NPRM, provides OFCCP's responses
to those comments, and explains any resulting changes to the proposed
rule.
Section-by-Section Analysis of Comments and Revisions
Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-300.1 Purpose, Applicability and Construction
This section discusses the purpose, applicability, and construction
of the part 60-300 regulations. Paragraphs (a) and (c)(2) refer to the
four categories of veterans covered under the JVA: (1) Disabled
veterans, (2) recently separated veterans, (3) other protected
veterans, and (4) Armed Forces service medal veterans.
Paragraph (b) states that this part applies to any Government
contract or subcontract of $100,000 or more entered into on or after
December 1, 2003. The singular form of the term ``contract'' is used in
paragraph (b) in order to make clear that a single contract in the
amount of $100,000 or more is required to establish coverage under
VEVRAA; contracts are not aggregated to reach the coverage threshold.
Additionally, paragraph (b) states that a contractor whose only covered
Government contract was entered into before December 1, 2003, must
comply with the requirements in the existing VEVRAA implementing
regulations in part 60-250, and a contractor that has covered contracts
entered into both before and on or after December 1, 2003, must comply
with the regulations in part 60-300 and existing part 60-250.
Two commenters asked whether contractors subject to the existing
VEVRAA regulations in part 60-250 and the regulations in part 60-300
implementing the JVA amendments must develop two separate VEVRAA
affirmative action programs (AAPs). OFCCP wishes to clarify that a
contractor that must comply with both sets of VEVRAA regulations need
not develop two AAPs. The JVA amendments increased the dollar amount of
the contract that triggers the written AAP requirement, but the JVA
amendments did not affect the required contents of the written AAP
under VEVRAA. OFCCP explained in the NPRM that, with the exception of
the changes necessitated by the JVA amendments, Sec. 60-300.44, which
addresses the requirements of AAPs under VEVRAA, is identical to Sec.
60-250.44. Since the contents of the written AAP required under Sec.
60-300.44 and Sec. 60-250.44 are the same, contractors may develop a
single AAP that satisfies the requirements of both regulations.
One commenter, an employer association, asserted that it would be
unduly burdensome and confusing for contractors to have to comply with
two sets of VEVRAA regulations, as they would be required to track
different categories of protected veterans. The commenter stated that
OFCCP has some flexibility, and, as a matter of enforcement policy, the
agency could adopt a final rule that requires contractors to comply
with only one set of VEVRAA regulations. The commenter argued that
OFCCP could state in the final rule that contractors need only comply
with the new JVA regulations, even if they also have contracts that are
covered under the existing regulations in part 60-250. Further, the
commenter stated that the final rule could provide that contractors
entering into contracts that are covered under the regulations in new
part 60-300 after the start of the AAP year have the option of
continuing to comply only with the recordkeeping and reporting
requirements under the part 60-250 rules until the end of the AAP year.
[[Page 44395]]
OFCCP disagrees with the commenter's claim that compliance with the
requirements of two sets of VEVRAA regulations would be unduly
burdensome. First, complying with the requirements of part 60-300 will
not increase the paperwork burden of contractors already covered under
the VEVRAA regulations. The regulations in part 60-300 implementing the
JVA amendments, like the existing VEVRAA implementing regulations in
part 60-250, require that contractors extend to all applicants an
invitation to self-identify as a veteran who may be covered under the
Act and wishes to benefit under the affirmative action program. The
only difference between the invitations to self-identify required under
part 60-300 and part 60-250 is the categories of veterans that are
invited to self-identify. Because OFCCP has included a sample
invitation to self-identify in Appendix B of the part 60-300
regulations, compliance with the part 60-300 requirement to invite
applicants to self-identify as covered veterans will not add to the
burden hours associated with the information collection requirements of
the affirmative action provisions of VEVRAA. If a contractor is covered
by part 60-250 and part 60-300, the contractor may continue using the
part 60-250 sample invitation to self-identify form and add the part
60-300 sample invitation to self-identify form once the final rule
becomes effective. Contractors also may choose to combine the two
sample invitation to self-identify forms provided in part 60-250 and
part 60-300 such that the contractor extends to applicants one
invitation to self-identify which lists all of the categories of
veterans protected under parts 60-250 and 60-300.
Further, the JVA did not alter the written AAP requirement under
VEVRAA. Contractors that also are subject to the regulations in part
60-300 may continue to implement the AAPs developed under the part 60-
250 regulations, but their affirmative action efforts must include the
three additional categories of covered veterans. These contractors may
develop one AAP, rather than two, as long as the components of that
AAP, including the outreach and positive recruitment activities,
include all categories of veterans protected under parts 60-250 and 60-
300.
Moreover, OFCCP believes that only a small percentage of
contractors will be required to comply with both sets of VEVRAA
regulations. The term ``Government contract'' is defined in existing
Sec. 60-250.2(i) and Sec. 60-300.2(i) of the final rule as ``any
agreement or modification thereof between any contracting agency and
any person for the purchase, sale, or use of personal property or
nonpersonal services (including construction).'' Existing Sec. 60-
250.2(i)(1) and 60-300.2(i)(1) of the final rule provide that a
``modification'' is ``any alteration in the terms and conditions of a
contract, including supplemental agreements, amendments and
extensions.'' The JVA applies to Government contracts entered on or
after December 1, 2003. Because a contract modification is a
``Government contract'', the JVA applies to modifications of otherwise
covered contracts made on or after December 1, 2003. Consequently,
modification of a contract that would otherwise be covered by part 60-
300 on or after December 1, 2003, but for the date the contract was
entered into, would have the effect of modifying the VEVRAA equal
opportunity clause; the new requirements of part 60-300 would be
applicable to the modified contract, rather than the old requirements
of part 60-250.
To clarify the effect of modifying a contract on the VEVRAA
requirements applicable after modification, language has been added to
Sec. 60-300.1(b) addressing the issue. In the final rule, Sec. 60-
300.1(b) has been revised to state ``[t]his part applies to any
Government contract or subcontract of $100,000 or more, entered into or
modified on or after December 1, 2003 * * *. In addition, Sec. 60-
300.1(b) of the final rule states ``[a]ny contractor or subcontractor
whose only contract * * * was entered into before December 1, 2003 (and
not modified as described above) must follow part 60-250.''
The regulations published today and the existing VEVRAA
implementing regulations in part 60-250 do not require contractors to
count the number of veterans in their employ. The Veterans' Employment
and Training Service (VETS), rather than OFCCP, administers and
enforces the requirement that contractors track and report on the
number of employees in their workforces who are covered veterans, and
has established a form for reporting the required information. See 41
CFR Chapter 61.
Finally, OFCCP also disagrees with the assertion that the final
rule could provide that contractors need comply with only one set of
VEVRAA regulations. Many of the veterans currently protected under the
regulations in part 60-250 remain covered in the categories of veterans
protected under the JVA. However, because the JVA eliminated the
Vietnam era veterans from coverage under VEVRAA, some Vietnam era
veterans might lose the VEVRAA protections prematurely if OFCCP were to
adopt a rule requiring contractors with contracts entered both before
and on and after December 1, 2003, to comply only with the regulations
implementing the JVA amendments. Conversely, some veterans covered
under the JVA were not covered previously. OFCCP does not have the
authority to permit contractors subject to both pre- and post-JVA
requirements to comply only with post-JVA requirements because OFCCP
rulemaking authority can only be exercised in a manner that carries out
the provisions of the statute. Here, Congress expressly made the JVA
amendments applicable to contracts entered into on or after December 1,
2003, and thereby provided that veterans covered under contracts
entered into prior to the effective date of the JVA amendments remain
covered under VEVRAA.
Section 60-300.2 Definitions
In the NPRM, OFCCP proposed to incorporate in this section many of
the definitions contained in existing Sec. 60-250.2 without any
substantive changes. The proposal called for some definitions in
existing Sec. 60-250.2 to be incorporated in Sec. 60-300.2 with
modifications necessitated by the JVA amendments. Further, OFCCP
proposed to adopt a few definitions that have no parallel definitions
in the existing Sec. 60-250.2. Likewise, some definitions in Sec. 60-
250.2 were not included in the proposed rule because of the changes the
JVA made to VEVRAA.
OFCCP received several comments on the proposed definitions, and
all were from one commenter. The commenter, an employer association,
requested that the final rule clearly indicate that only veterans of
the United States armed forces, as opposed to veterans of the armed
forces of other nations, are covered under the affirmative action
provisions of VEVRAA. The commenter stated that one option for
clarifying coverage under VEVRAA would be to add a separate definition
for the term ``veteran.'' Alternatively, the commenter recommended that
OFCCP add clarifying language to the definitions for the terms
``disabled veteran'' and ``recently separated veteran.'' The commenter
noted that the definitions for the terms ``other protected veteran''
and ``Armed Forces service medal veteran'' already indicate that the
regulations apply to veterans of the United States armed forces.
In response to this comment, the definitions for the terms
``disabled veteran'' and ``recently separated
[[Page 44396]]
veteran'' in paragraphs (n) and (q), respectively, have been revised in
the final rule to make clear that only veterans ``who served on active
duty in the U.S. military, ground, naval, or air service'' are covered
under the affirmative action provisions of VEVRAA. For the sake of
clarity and consistency, this language also has been added to the
definitions for the term ``other protected veteran'' in paragraph (p)
and the term ``Armed Forces service medal veteran'' in paragraph (r) in
the final rule. Paragraph (p) also replaces ``person'' with ``veteran''
for clarity.
The commenter also expressed the view that veterans who are
discharged from service for certain serious offenses should not be
entitled to the protections of the affirmative action provisions of
VEVRAA. Accordingly, the commenter suggested that OFCCP adopt in the
final rule coverage standards similar to those established under the
regulations implementing the Uniformed Services Employment and
Reemployment Rights Act (USERRA). The regulation at 20 CFR 1002.135
excludes from the protections of USERRA employees whose military
service falls within one of four categories, including separation from
service with a dishonorable or bad conduct discharge.
For purposes of the laws relating to veterans' benefits, which
include the affirmative action provisions of VEVRAA, the definition of
veteran means ``a person who served in the active military, naval, or
air service, and who was discharged or released therefrom under
conditions other than dishonorable.'' See 38 U.S.C. 101(2). Thus,
dishonorably discharged veterans are excluded from the protections of
VEVRAA by statute. Since persons who are separated from service with
dishonorable discharges do not meet the statutory definition of
``veteran,'' these persons are not entitled to the protections of the
affirmative action provisions of VEVRAA. For clarity, the final rule
defines veteran in paragraph (z) as ``a person who served in the active
military, naval, or air service of the United States, and who was
discharged or released therefrom under conditions other than
dishonorable.''
One comment addressed the definition for the term ``other protected
veteran.'' The commenter stated that employers need guidance on the
wars, campaigns, and expeditions for which a campaign badge has been
authorized. The commenter asserted that the information available on
the Office of Personnel Management's Web site is out-of-date and only
somewhat relevant to private employers. The commenter suggested that
OFCCP develop an up-to-date list of the covered conflicts for which a
campaign badge has been authorized, or work with other affected
agencies to develop and maintain a link to a Web site that contains a
current list of the wars, campaigns, and expeditions that would qualify
a veteran as an ``other protected veteran.''
OFCCP agrees that contractors should have access to information
about the veterans included in the category ``other protected
veterans.'' Therefore, OFCCP will provide a link on its Web site to a
list compiled by the Department of Defense, as well as a link to the
information maintained by the Office of Personnel Management. These
links will allow contractors to find lists of wars, campaigns, and
expeditions for which a campaign badge has been authorized. OFCCP is
providing these links as a courtesy to the contractor community.
Contractors remain responsible for complying with their
nondiscrimination and affirmative obligations regarding all protected
veterans. Paragraph (p) is adopted in the final rule as stated earlier
in this section.
The employer association providing comments on the definitions also
stated that guidance was needed on the operations that would qualify a
veteran as an ``Armed Forces service medal veteran,'' which is defined
in paragraph (r). As was explained in the NPRM, Armed Forces service
medals are awarded to military personnel who participate in a United
States military operation deemed to be significant activity, and who
encounter no foreign armed opposition or imminent hostile action. The
commenter requested that OFCCP provide contractors access to an up-to-
date list of the operations for which Armed Forces service medals have
been awarded. OFCCP does not believe that providing such a list is
necessary because the form used to document a veteran's separation from
active duty military service, called the DD Form 214, Certificate of
Release or Discharge from Active Duty, indicates whether a veteran is a
recipient of the Armed Forces service medal. Veterans who self-identify
as an ``Armed Forces service medal veteran'' may be asked to provide a
copy of this form. Paragraph (r) is adopted in the final rule as stated
earlier in this section.
OFCCP proposed in the NPRM to incorporate in paragraph (y) the
definition of the ``employment service delivery system'' that was added
to the definitional section of VEVRAA, 38 U.S.C. 4101(7), by Section
5(c)(1) of the JVA. Under the JVA, ``employment service delivery
system'' means a ``service delivery system at which or through which
labor exchange services, including employment, training, and placement
services, are offered in accordance with the Wagner-Peyser Act.'' (The
Wagner-Peyser Act established the Employment Service, which is a
nationwide system of public employment offices.) The commenter
recommended that OFCCP revise the definition of ``employment service
delivery system'' in the final rule to state in plain language the name
or type of agency with which the employer is to list its job openings.
OFCCP agrees that contractors should have clear guidance regarding
the types of agencies with which the employer is to list job openings.
However, OFCCP also recognizes contractors may wish to satisfy the
mandatory job listing requirement in a variety of ways, depending on
the number, timing, and location of the positions to be filled. For
this reason, OFCCP believes that further defining the appropriate
``employment delivery system'' would unnecessarily constrain
contractors' flexibility to list with an appropriate delivery system.
Instead, in Sec. 60-300.5 of the final rule, OFCCP has added language
providing contractors with examples of the types of delivery systems
with which contractors may list job openings. The revised language
specifically provides that listing employment openings with the state
workforce agency job bank or the local employment service delivery
system where the opening occurs will satisfy the requirement to list
jobs with the appropriate employment delivery system. In light of these
changes to Sec. 60-300.5, paragraph (y) of the final rule will remain
as written in the NPRM.
Section 60-300.4 Coverage and Waivers
This section is identical to Sec. 60-250.4 in the existing VEVRAA
regulations, except that proposed paragraphs (a)(1) and (a)(2)
implement the JVA amendments and state that contracts of $100,000 or
more are covered under VEVRAA. We received no comments for this
section. Accordingly, Sec. 60-300.4 is adopted in the final rule as
proposed.
Section 60-300.5 Equal Opportunity Clause
Paragraph (a) of the final rule contains the equal opportunity (EO)
clause that must be included in all covered Government contracts and
subcontracts. The language in paragraph (a)(1) of the EO clause is
identical to the language in the parallel provision in existing Sec.
60-250.5, except that paragraph (a)(1) refers to the categories of
veterans protected under the JVA. Thus, ``disabled veterans'' and
``Armed Forces service medal veterans'' are mentioned in
[[Page 44397]]
paragraph (a)(1) of the final rule, while ``special disabled veterans''
and ``veterans of the Vietnam era'' are referenced in existing Sec.
60-250.5(a)(1).
Paragraphs (a)(2) and (a)(3) set out the contractor's obligation to
list employment openings with the appropriate employment service
delivery system. The JVA amendments eliminated listing employment
openings solely with America's Job Bank as an option for complying with
the mandatory job listing requirement. The JVA requires that
contractors and subcontractors list their employment openings with the
appropriate ``employment service delivery system.'' See 38 U.S.C.
4212(a)(2)(A). In addition to listing their employment openings with
the appropriate employment service delivery system, the JVA provides
that contractors and subcontractors also may list their employment
openings with one-stop career centers under the Workforce Investment
Act of 1998, other appropriate service delivery points, or America's
Job Bank (or any additional or subsequent national electronic job bank
established by the U.S. Department of Labor). Accordingly, paragraph
(a)(2) of the final rule generally tracks the JVA provision, and
provides that contractors must list employment openings with the
appropriate employment service delivery system.
The three employer associations all expressed concern about the
elimination of AJB as a means for contractors to fulfill the mandatory
job listing requirements. One employer association asserted that
contractors that regularly advertise multiple job openings in locations
throughout the country will face huge administrative burdens if they
are required to list each job opening with individual employment
service offices. The employer association stated that listing with the
AJB allowed contractors to publicize job opportunities on a nationwide
basis through a single Web site on the Internet, rather than listing
them with each local employment service office of each location where
an open position is being filled. The association claimed that a small
army of dedicated staff would be required to comply with the
requirement to list each job with individual employment service
offices.
Similarly, another employer association claimed that the money,
time, and resources required to comply with the requirement to
separately list job openings with each individual local employment
services agency would be substantial. The commenter maintained that
compliance with the separate listing requirement is made more
challenging by the different protocols for listing jobs that exist in
the various local employment services offices. According to the
commenter, some employment service offices require contractors to post
openings only by regular mail, some accept listings via fax, and some
accept postings only by email.
One commenter urged OFCCP to consider alternatives to the proposed
job listing provision that would reduce the burden on contractors. Two
commenters raised questions about the status of a Department-sponsored
solution that would allow contractors to meet both the current and the
revised mandatory job listing requirement. One commenter recommended
that the Department continue the effort to develop a Department-
sponsored solution, and that OFCCP delay publishing the final rule
until after a solution has been implemented.
Delaying publication of the final rule until development of a
Department-sponsored solution has been completed is not a feasible
option. In December 2005, the Government Accountability Office (GAO)
issued a report entitled ``Veterans' Employment and Training Service
Labor Actions Needed to Improve Accountability and Help States
Implement Reforms to Veterans' Employment Services'' (GAO-06-176). The
GAO Report sets forth results of a review of progress made in
implementing the reforms to employment and training services for
veterans required by the JVA. GAO noted that the Department has not yet
issued regulations to implement the JVA amendments to the affirmative
action provisions of VEVRAA and recommended that the Department issue
such regulations as soon as possible. In response to the GAO Report,
OFCCP agreed to expedite issuing the federal contractor regulations.
However, OFCCP appreciates the difficulties contractors may face if
they must list job openings with multiple employment service delivery
systems, particularly if those systems maintain different methods for
posting job openings or if the contractor must act to fulfill multiple
job openings in different geographical locations in a short period of
time. Therefore, OFCCP has added language to this section providing
that contractors may fulfill their job posting requirement by listing
job openings with the appropriate state workforce agency job bank. The
appropriate state workforce agency job bank shall be the job bank in
which the job opening occurs. Contractors also may satisfy the posting
requirement by listing job openings with the local employment service
delivery system where the opening occurs.
A contractor may satisfy the mandatory job listing requirement by
submitting job listings to the appropriate employment delivery system
in a variety of ways, including via mail, facsimile (FAX), electronic
mail, or other electronic postings. The vast majority of the state
workforce agency job banks accept job postings via the Internet.
Contractors may use third parties, such as private or non-profit sector
job banks, Internet gateway and portal sites, and recruiting services
and directories, to assist them with the transmission of job postings
to the appropriate employment delivery system.
OFCCP believes that this approach allows contractors the necessary
flexibility to determine the most effective way to comply with the
mandatory job listing requirement, depending on the number, timing, and
location of the positions to be filled. OFCCP will provide a link on
its Web site to all state workforce agency job banks. This link will
allow contractors to identify those state workforce agency job banks
that accept electronically-transmitted job postings. OFCCP is providing
this link as a courtesy to the contractor community. Contractors remain
responsible for complying with the requirement to list with the
appropriate employment delivery system.
In order to make clear that contractors may satisfy the mandatory
job listing requirement in a variety of ways, paragraph (a)(2) of the
final rule reads as follows: ``The contractor agrees to immediately
list all employment openings which exist at the time of the execution
of this contract and those which occur during the performance of this
contract, including those not generated by this contract and including
those occurring at an establishment of the contractor other than the
one where the contract is being performed, but excluding those of
independently operated corporate affiliates, with the appropriate
employment service delivery system where the opening occurs. Listing
employment openings with the state workforce agency job bank or the
local employment service delivery system where the opening occurs will
satisfy the requirement to list jobs with the appropriate employment
service delivery system. In paragraph (a)(4), OFCCP is changing the
phrase ``state employment security agency'' to ``state workforce
agency'' so that paragraph (a)(4) is consistent with paragraph (a)(2)
of this section.
[[Page 44398]]
OFCCP also received two comments on the definition of ``executive
and senior management'' in proposed paragraph (a)6.ii. In order to
conform to a technical amendment made by the JVA, OFCCP proposed to use
the term ``senior management'' in proposed paragraph (a)6.ii., instead
of ``top management,'' which is the term used in existing Sec.
250.5(a)6.ii. However, in all other respects, the proposed definition
for the term ``executive and senior management'' is identical to the
definition of ``executive and top management'' found in the existing
Sec. 250.5(a)6.ii.
One commenter observed that, in defining the term ``executive and
senior management'' in proposed Sec. 60-300.5(a)6.ii. and current
Sec. 250.5(a)6.ii., OFCCP followed the regulations implementing the
exemption for executives from the minimum wage and overtime pay
requirements of the Fair Labor Standards Act (FLSA), published at 29
CFR part 541 (``part 541 regulations''). The commenter also noted that
the Department of Labor revised the part 541 regulations, effective
August 23, 2004, and that the revisions include streamlined tests for
determining whether a person qualifies as an ``executive'' exempt from
the overtime provisions. See 69 FR 22122. For the sake of consistency
and in order to avoid confusion, the commenter maintained that the
definition of ``executive and senior management'' in paragraph (a)6.ii.
should conform to the updated tests for determining who qualifies as an
``executive employee'' set forth in the part 541 regulations.
In response to the comment, OFCCP has revised the definition of
``executive and senior management'' to reflect the standards for
determining when a person qualifies as an ``executive employee'' found
in 29 CFR 541.100 and 541.101. Thus, paragraph (a)6.ii. in the final
rule defines the term ``executive and senior management'' as: (1) any
employee ``(a) Compensated on a salary basis at a rate of not less than
$455 per week (or $380 per week, if employed in American Samoa by
employers other than the Federal Government), exclusive of board,
lodging or other facilities; (b) Whose primary duty is management of
the enterprise in which the employee is employed or of a customarily
recognized department or subdivision thereof; (c) Who customarily and
regularly directs the work of two or more other employees; and (d) Who
has the authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement, promotion or
any other change of status of other employees are given particular
weight;'' or (2) any employee ``who owns at least a bona fide 20-
percent equity interest in the enterprise in which the employee is
employed, regardless of whether the business is a corporate or other
type of organization, and who is actively engaged in its management.''
Another commenter expressed the view that the proposed definition
of ``executive and senior management'' could be interpreted to exclude
from the mandatory job listing requirement ``most low level managers
and supervisors.'' The commenter argued that ``executive and senior
management'' should be defined as ``positions which direct company
policy and direction and not be hinged to supervision of employees.''
OFCCP believes that its revised definition adequately addresses this
commenter's concerns, as supervisory responsibility is not the sole
determinant of whether a job is considered ``executive and senior
management.'' In order to be considered an ``executive and top
management'' position exempt from the mandatory job listing
requirement, a job must satisfy all of the factors listed in paragraph
(a)6.ii.
Subpart B--Discrimination Prohibited
Section 60-300.21 Prohibitions
The final rule adopts Sec. 60-300.21 as proposed. This section is
identical to existing Sec. 60-250.21, except that the categories of
veterans covered under the JVA are referenced in the final rule.
Paragraph (c) provides that it is unlawful for contractors to
participate in contractual arrangements that have the effect of
subjecting the applicants and employees who are covered veterans to
discrimination. A comment from a workforce development agency expressed
concerns about the contractual arrangements federal contractors have
with temporary employment agencies. The commenter asserted that many
federal contractors use temporary employment agencies to recruit
candidates for job vacancies and that when the temporary agencies
receive job orders from a client they tend to refer candidates they
have ``on-file.'' According to the commenter, temporary agencies are
not obligated to comply with the mandatory job listing requirements
because they ``are not by definition subcontractors to the federal
contractor.'' The commenter argued that, to better serve veterans,
either temporary agencies should be considered as subcontractors, or
contractors listing job orders with temporary agencies also should be
required to list their job orders with the employment service.
A contractor's use of an employment agency does not relieve the
contractor of its obligation to comply with the mandatory job listing
requirement. Section 60-250.5(a) expressly provides that ``listing of
employment openings with the appropriate employment service delivery
system pursuant to this clause shall be made at least concurrently with
the use of any other recruitment source or effort * * *'' (Emphasis
supplied.) Thus, the regulations generally require contractors to list
with the appropriate employment service delivery system the jobs that
also are provided to an employment agency. The only jobs listed with an
employment agency that need not be listed with the employment service
are those exempt from the mandatory job listing requirement. Section
60-250.5(a)6.i exempts from the mandatory job listing requirement
positions that are executive and senior management, positions filled
from within the contractor's organizations, and positions lasting three
days or less.
In addition, paragraph (c) of this section forbids contractors from
using an employment agency that discriminates against covered veterans.
Accordingly, a contractor would violate VEVRAA if it uses an employment
agency that discriminates against veterans to recruit for vacancies.
Further, OFCCP disagrees with the commenter's assertion that all
temporary employment agencies are excluded from coverage under VEVRAA.
Section 60-300.2(l), as does the parallel provision in the part 60-250
regulations, defines the term ``subcontract'' as ``any agreement or
arrangement between a contractor and any person * * * which, in whole
or in part, is necessary to the performance of any one or more
contracts; or * * * under which any portion of the contractor's
obligation under any one or more contracts is performed, undertaken, or
assumed.'' Whether a particular subcontract is covered under the VEVRAA
regulations depends on a variety of factors such as the requirements of
the Government contract in issue and the role of the subcontractor in
fulfilling the obligations of the Government contract. Thus, some, but
certainly not all, temporary employment agencies may have agreements
with Government contractors that would render them a covered
subcontractor under VEVRAA.
[[Page 44399]]
Section 60-300.22 Direct Threat Defense
This section is identical to existing Sec. 60-250.22, except that
the cross-reference is to Sec. 60-300.2(w) of this final rule. OFCCP
received no comments on this section. It is adopted in the final rule
as proposed.
Section 60-300.23 Medical Examinations and Inquiries
This section is identical to existing Sec. 60-250.23, except that
the proposal references the category of ``disabled veteran(s)'' rather
than ``special disabled veterans.'' No comments were submitted on this
section. The final rule adopts Sec. 60-300.23 as proposed.
Section 60-300.24 Drugs and Alcohol
This section is identical to existing Sec. 60-250.24, except that
this section includes a citation to Sec. 60-300.23(d). OFCCP received
no comments on this section. Accordingly, the final rule adopts this
section as proposed.
Section 60-300.25 Health Insurance, Life Insurance and Other Benefit
Plans
This section is identical to Sec. 60-250.25 in the current VEVRAA
implementing regulations, except that ``disabled veteran'' rather than
``special disabled veteran'' is referenced in paragraph (d). We
received no comments on this section. The final rule adopts Sec. 60-
300.25 as proposed.
Subpart C--Affirmative Action Program
Section 60-300.40 Applicability of the Affirmative Action Program
Requirement
OFCCP proposed paragraph (a) raised the coverage threshold to a
contract of $100,000 or more. As discussed in the preamble discussion
of the Sec. 60-300.1, some comments expressed concern about the
increased burden that would result if contractors are required to
develop and maintain two AAPs--one under the part 60-250 and a second
AAP under part 60-300. OFCCP explained that contractors subject to the
final rule and the regulations in part 60-250 may develop a single AAP
that addresses the requirements under parts 60-250 and 60-300.
One commenter asked about the deadline for developing the AAP
required under 60-300.40. Paragraph (b) provides that a contractor must
develop an AAP within 120 days of the commencement of a contract. Under
the existing VEVRAA regulations, a contractor with a contract of
$50,000 or more must develop a written AAP. Any contractor with a
contract of $100,000 or more that was entered into on or after December
1, 2003, should already have an AAP in place that would meet the
requirements of this section. The final rule adopts Sec. 60-300.40
without change.
Section 60-300.42 Invitation to Self-Identify
This section is identical to Sec. 60-250.42, except that the
categories of veterans protected under the JVA are referenced in this
section. In addition, the regulatory citations in this section are to
provisions in the final rule. We received one comment to this section
asking for clarification on the self-identification process. The
process is explained in this section. Section 60-300.42 is adopted in
the final rule as proposed.
Section 60-300.43 Affirmative Action Policy
This section is identical to Sec. 60-250.43, except that this
section specifies the categories of veterans covered under the JVA, and
contains citations to provisions in the proposed rule. No comments were
received on this section. Accordingly, Sec. 60-300.43 is adopted in
the final rule as proposed.
Section 60-300.44 Required Contents of Affirmative Action Programs
With the exception of changes necessitated by the JVA amendments,
this section is identical to Sec. 60-250.44 in the existing VEVRAA
implementing regulations. The categories of veterans protected under
the JVA are referenced throughout this section. In addition, consistent
with the technical amendments to VEVRAA, the term ``senior management''
is used in paragraph (h)(2)(i), which sets out the requirement that the
contractor assign responsibility for implementation of the AAP.
Further, this section contains citations to provisions in the final
rule. We received no comments on Sec. 60-300.44 and it is adopted in
the final rule without change.
Subpart D--General Enforcement and Complaint Procedures
Section 60-300.60 Compliance Evaluations
This section is identical to Sec. 60-250.60, except for the
differences necessitated by the JVA. One difference is that the
categories of veterans protected under the JVA are referenced in this
section. The other difference is found in paragraph (c), which
addresses OFCCP verification of contractor compliance with reporting
requirements. Paragraph (c) of existing Sec. 60-250.60 provides that
OFCCP may verify whether a contractor is complying with its obligation
to file its Annual VETS-100 Report pursuant to the regulations in 41
CFR part 61-250. The regulations in part 61-250, which were issued by
VETS, apply only to contracts entered into before December 1, 2003.
Paragraph (c) of this section provides that OFCCP may verify
whether a contractor has complied with applicable reporting
requirements required under regulations promulgated by VETS. OFCCP
changed ``any reporting requirement'' from the NPRM to ``applicable
reporting requirements'' in the final rule for clarity. This change
gives OFCCP authority to investigate compliance with all applicable
reporting requirements required under regulations promulgated by VETS,
including any new reporting requirements that VETS may implement as a
result of the JVA.
We received two comments concerning the reporting requirements
under VEVRAA that are administered by VETS. One commenter stated that
contractor burden will increase because of the requirements to submit
the VETS-100 under both parts 60-250 and 60-300. This same commenter
suggested that OFCCP coordinate its final rule to any changes to the
VETS-100 Report under VETS. As explained in the discussion of Sec. 60-
300.1, the VEVRAA implementing regulations administered by OFCCP
contain no reporting requirements. Accordingly, contractors subject to
the existing regulations in part 60-250 and the regulations in part 60-
300 will not face an increase in their reporting burden under OFCCP's
rule.
We also received one comment concerning the relationship between
OFCCP and VETS compliance evaluations. Under the current regulations in
part 60-250.5, during the onsite portion of a compliance evaluation, a
compliance officer confirms with the contractor that it has listed its
employment openings with the local employment service office and may
contact the local employment service office directly to verify that the
contractor has complied with the mandatory job listing requirements.
Under this final rule, OFCCP will confirm that contractors holding
Government contracts subject to the JVA have listed employment openings
with the appropriate employment delivery system and may contact the
employment delivery system directly to verify this information.
Under the current regulations in part 60-250.5, OFCCP also confirms
with the contractor that it has completed a VETS-100 report during the
onsite portion of a compliance evaluation. If
[[Page 44400]]
the contractor has not completed the VETS-100 report, OFCCP will notify
VETS. Under this section of the final rule, OFCCP will confirm that a
contractor holding a Government contract covered by the JVA has
completed any applicable VETS reporting requirements, including any new
reporting requirements that VETS may implement as a result of the JVA.
If the contractor has not completed any applicable reporting
requirements, OFCCP will notify VETS.
Section 60-300.61 Complaint Procedures
This section is identical to Sec. 60-250.61, except for the
changes necessary to conform to the amendments made by the JVA.
Further, the regulatory citations in this section are to sections in
the final rule. In paragraph (a) of the final rule, OFCCP is changing
``state employment security agency'' to ``state workforce agency'' to
be consistent with Sec. 300.5.
Section 60-300.64 Show Cause Notices
Except for the citations to provisions in the final rule, this
section is identical to Sec. 60-250.64. Section 60-300.64 is adopted
in the final rule as proposed.
Section 60-300.65 Enforcement Proceedings
Except for the citations to provisions in the final rule, this
section is identical to Sec. 60-250.65. We received no comments to
this section; it is adopted in the final rule without change.
Section 60-300.66 Sanctions and Penalties
Except for the citations to provisions in the final rule, this
section is identical to Sec. 60-250.66. The final rule adopts Sec.
60-300.66 as proposed.
Section 60-300.69 Intimidation and Interference
This section is identical to Sec. 60-250.69, except that this
section refers to the categories of veterans protected under the JVA.
Section 60-300.69 is adopted in the final rule without change.
Subpart E--Ancillary Matters
Section 60-300.84 Responsibilities of Appropriate Employment Service
Delivery System
According to VEVRAA, 38 U.S.C. Section 4212 (a)(2)(B), appropriate
employment service delivery systems are required to give priority in
referral to disabled veterans, recently separated veterans, other
protected veterans, and Armed Forces service medal veterans to
employment openings listed by contractors with such appropriate
employment delivery systems pursuant to the mandatory job listing
requirements of the equal opportunity clause. According to Section
4212(a)(2)(c), the appropriate employment service delivery system also
shall provide a list of such employment openings to States, political
subdivisions of States, or any private entities or organizations under
contract to carry out employment, training, and placement services
under chapter 41 of title 38.
OFCCP proposed Sec. 60-300.84 was identical to current Sec. 60-
250.84. In the final rule, OFCCP has revised this section to clarify
the scope of its authority over, and its interactions with, these
employment delivery systems. OFCCP may contact the employment delivery
systems to request information pertinent to whether the contractor is
in compliance with the mandatory job listing requirements. OFCCP does
not, however, have responsibility for ensuring that the appropriate
employment delivery systems provide priority referral to covered
veterans. Accordingly, OFCCP added the words ``By statute'' to the
first sentence of this section to clarify that the obligation of
employment delivery systems to provide veterans with priority of
service arises by statute, and not because of a requirement imposed by
OFCCP.
Appendix A to Part 60-300--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
Except for the references to the categories of veterans covered
under the JVA and citations to provisions in the final rule, Appendix A
to part 60-300 is substantially similar to Appendix A to part 60-250 in
the existing VEVRAA regulations. We received no comments on Appendix A.
Accordingly, Appendix A is adopted in the final rule without change.
Appendix B to Part 60-300--Sample Invitation to Self-Identify
Except for the references to the categories of veterans covered
under the JVA and citations to provisions in the final rule, Appendix B
to part 60-300 is substantially similar to Appendix B to part 60-250 in
the existing VEVRAA regulations. We received no comments on this aspect
of the proposal. The final rule adopts Appendix B as proposed in the
NPRM.
Appendix C to Part 60-300--Review of Personnel Processes
Proposed Appendix C to part 60-300 is substantially similar to
Appendix C to part 60-250 in the existing VEVRAA regulations, except
for the references to the categories of veterans covered under the JVA
and citations to provisions in the proposed rule. We received no
comments on Appendix C. The final rule adopts Appendix C without
change.
Regulatory Procedures
Executive Order 12866
The Department is issuing this final rule in conformance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, but is not economically significant as defined in section
3(f)(1). Therefore, the information enumerated in section 6(a)(3)(C) of
the order is not required. Pursuant to Executive Order 12866, this rule
has been reviewed by the Office of Management and Budget (OMB).
Executive Order 13132
OFCCP has reviewed this rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' This rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Regulatory Flexibility Act
This rule clarifies existing requirements for Federal contractors.
In view of this fact and because the rule does not substantively change
existing obligations for Federal contractors, the Department concludes
that this rule will not have a significant economic impact on a
substantial number of small entities. The Secretary has certified to
the Chief Counsel for Advocacy of the Small Business Administration to
this effect. Therefore, a regulatory flexibility analysis under the
Regulatory Flexibility Act is not required.
Unfunded Mandates Reform
Executive Order 12875--This rule does not create an unfunded
Federal mandate upon any State, local, or tribal government.
Unfunded Mandates Reform Act of 1995--This rule does not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or increased expenditures by the private sector of $100 million
or more.
[[Page 44401]]
Paperwork Reduction Act
The information collection requirements contained in the existing
VEVRAA regulations, with the exception of those related to complaint
procedures, are currently approved under OMB Control No. 1215-0072
(Recordkeeping and Reporting Requirements-Supply and Service) and OMB
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The
information collection requirements contained in the existing complaint
procedures regulation are currently approved under OMB Control No.
1215-0131. This rule adopts a new set of VEVRAA implementing
regulations that incorporate the changes made by the JVA amendments,
and apply to Government contracts entered on or after December 1, 2003.
The JVA amended VEVRAA by increasing the contract coverage threshold,
changing the categories of veterans protected under the law, and
changing the manner in which the mandatory job listing requirement is
to be implemented. The increase in the contract coverage threshold from
$25,000 to $100,000 may result in a decrease in the number of
respondents and burden hours. However, this rule does not make any
changes to the currently approved information collections.
Consequently, this rule need not be reviewed by the Office of
Management and Budget under the authority of the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq.
List of Subjects in 41 CFR Part 60-300
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, Reporting
and recordkeeping requirements, and Veterans.
Signed at Washington, DC, this 2nd day of August, 2007.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
0
Accordingly, for the reasons set forth in the preamble, Chapter 60 of
Title 41 of the Code of Federal Regulations is amended to read as
follows:
PART 60-300--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING DISABLED VETERANS,
RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED
FORCES SERVICE MEDAL VETERANS
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-300.1 Purpose, applicability and construction.
60-300.2 Definitions.
60-300.3 [Reserved]
60-300.4 Coverage and waivers.
60-300.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-300.20 Covered employment activities.
60-300.21 Prohibitions.
60-300.22 Direct threat defense.
60-300.23 Medical examinations and inquiries.
60-300.24 Drugs and alcohol.
60-300.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-300.40 Applicability of the affirmative action program
requirement.
60-300.41 Availability of affirmative action program.
60-300.42 Invitation to self-identify.
60-300.43 Affirmative action policy.
60-300.44 Required contents of affirmative action programs.
Subpart D--General Enforcement and Complaint Procedures
60-300.60 Compliance evaluations.
60-300.61 Complaint procedures.
60-300.62 Conciliation agreements.
60-300.63 Violation of conciliation agreements.
60-300.64 Show cause notices.
60-300.65 Enforcement proceedings.
60-300.66 Sanctions and penalties.
60-300.67 Notification of agencies.
60-300.68 Reinstatement of ineligible contractors.
60-300.69 Intimidation and interference.
60-300.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-300.80 Recordkeeping.
60-300.81 Access to records.
60-300.82 Labor organizations and recruiting and training agencies.
60-300.83 Rulings and interpretations.
60-300.84 Responsibilities of appropriate employment service
delivery system.
Appendix A to Part 60-300--Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
Appendix B to Part 60-300--Sample Invitation To Self-Identify
Appendix C to Part 60-300--Review of Personnel Processes
Authority: 29 U.S.C. 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3
CFR, 1971-1975 Comp., p. 841).
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec. 60-300.1 Purpose, applicability and construction.
(a) Purpose. The purpose of the regulations in this part is to set
forth the standards for compliance with the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or
VEVRAA), which requires Government contractors and subcontractors to
take affirmative action to employ and advance in employment qualified
covered veterans. Disabled veterans, recently separated veterans, other
protected veterans, and Armed Forces service medal veterans are covered
veterans under VEVRAA.
(b) Applicability. This part applies to any Government contract or
subcontract of $100,000 or more, entered into or modified on or after
December 1, 2003, for the purchase, sale or use of personal property or
nonpersonal services (including construction): Provided, that subpart C
of this part applies only as described in Sec. 60-300.40(a).
Compliance by the contractor with the provisions of this part will not
necessarily determine its compliance with other statutes, and
compliance with other statutes will not necessarily determine its
compliance with this part. Any contractor or subcontractor whose only
contract(s) for the purchase, sale or use of personal property and
nonpersonal services (including construction) was entered into before
December 1, 2003 (and not modified as described above) must follow part
60-250. Any contractor or subcontractor who has contracts for the
purchase, sale or use of personal property and nonpersonal services
(including construction) that were entered into before December 1, 2003
(and not modified as described above), and contracts that were entered
into on or after December 1, 2003, must follow both parts 60-250 and
60-300.
(c) Construction--(1) In general. The Interpretive Guidance on
Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101,
et seq.) set out as an appendix to 29 CFR part 1630 issued pursuant to
Title I may be relied upon for guidance in interpreting the parallel
provisions of this part.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any state or political subdivision that provides greater or
equal protection for the rights of disabled veterans, recently
separated veterans, other protected veterans, or Armed Forces service
medal veterans as compared to the protection afforded by this part. It
may be a defense to a charge
[[Page 44402]]
of violation of this part that a challenged action is required or
necessitated by another Federal law or regulation, or that another
Federal law or regulation prohibits an action (including the provision
of a particular reasonable accommodation) that would otherwise be
required by this part.
Sec. 60-300.2 Definitions.
For the purpose of this part:
(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act
of 1974, as amended, 38 U.S.C. 4212.
(b) Equal opportunity clause means the contract provisions set
forth in Sec. 60-300.5, ``Equal opportunity clause.''
(c) Secretary means the Secretary of Labor, United States
Department of Labor, or his or her designee.
(d) Deputy Assistant Secretary means the Deputy Assistant Secretary
for Federal Contract Compliance of the United States Department of
Labor, or his or her designee.
(e) Government means the Government of the United States of
America.
(f) United States, as used in this part, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
(g) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(h) Contract means any Government contract or subcontract.
(i) Government contract means any agreement or modification thereof
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term Government contract does not include agreements
in which the parties stand in the relationship of employer and
employee, and federally assisted contracts.
(1) Modification means any alteration in the terms and conditions
of a contract, including supplemental agreements, amendments and
extensions.
(2) Contracting agency means any department, agency, establishment
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Person, as used in this paragraph (i) and paragraph (l) of this
section, means any natural person, corporation, partnership or joint
venture, unincorporated association, state or local government, and any
agency, instrumentality, or subdivision of such a government.
(4) Nonpersonal services, as used in this paragraph (i) and
paragraph (l) of this section, includes, but is not limited to, the
following: Utility, construction, transportation, research, insurance,
and fund depository.
(5) Construction, as used in this paragraph (i) and paragraph (l)
of this section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other on-site functions incidental to the actual
construction.
(6) Personal property, as used in this paragraph (i) and paragraph
(l) of this section, includes supplies and contracts for the use of
real property (such as lease arrangements), unless the contract for the
use of real property itself constitutes real property (such as
easements).
(j) Contractor means, unless otherwise indicated, a prime
contractor or subcontractor holding a contract of $100,000 or more.
(k) Prime contractor means any person holding a contract of
$100,000 or more, and, for the purposes of subpart D of this part,
``General Enforcement and Complaint Procedures,'' includes any person
who has held a contract subject to the Act.
(l) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under
any one or more contracts is performed, undertaken, or assumed.
(m) Subcontractor means any person holding a subcontract of
$100,000 or more and, for the purposes of subpart D of this part,
``General Enforcement and Complaint Procedures,'' any person who has
held a subcontract subject to the Act.
(n) Disabled veteran means:
(1) A veteran of the U.S. military, ground, naval or air service
who is entitled to compensation (or who but for the receipt of military
retired pay would be entitled to compensation) under laws administered
by the Secretary of Veterans Affairs, or
(2) A person who was discharged or released from active duty
because of a service-connected disability.
(o) Qualified disabled veteran means a disabled veteran who has the
ability to perform the essential functions of the employment position
with or without reasonable accommodation.
(p) Other protected veteran means a veteran who served on active
duty in the U.S. military, ground, naval or air service during a war or
in a campaign or expedition for which a campaign badge has been
authorized, under the laws administered by the Department of Defense.
(q) Recently separated veteran means any veteran during the three-
year period beginning on the date of such veteran's discharge or
release from active duty in the U.S. military, ground, naval or air
service.
(r) Armed Forces service medal veteran means any veteran who, while
serving on active duty in the U.S. military, ground, naval or air
service, participated in a United States military operation for which
an Armed Forces service medal was awarded pursuant to Executive Order
12985 (61 FR 1209).
(s) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
disabled veteran holds or desires. The term essential functions does
not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including, but not limited to, the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
[[Page 44403]]
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(t) Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant who is a disabled veteran to be considered
for the position such applicant desires;\1\ or
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\1\ A contractor's duty to provide a reasonable accommodation
with respect to applicants who are disabled veterans is not limited
to those who ultimately demonstrate that they are qualified to
perform the job in issue. Disabled veteran applicants must be
provided a reasonable accommodation with respect to the application
process if they are qualified with respect to that process (e.g., if
they present themselves at the correct location and time to fill out
an application).
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(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified disabled veteran to
perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's
employee who is a disabled veteran to enjoy equal benefits and
privileges of employment as are enjoyed by the contractor's other
similarly situated employees who are not disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified disabled veteran in need of the
accommodation.\2\ This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations. (Appendix A of this part
provides guidance on a contractor's duty to provide reasonable
accommodation.)
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\2\ Contractors must engage in such an interactive process with
a disabled veteran, whether or not a reasonable accommodation
ultimately is identified that will make the person a qualified
individual. Contractors must engage in the interactive process
because, until they have done so, they may be unable to determine
whether a reasonable accommodation exists that will result in the
person being qualified.
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(u) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (u)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
(i) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the
overall size of the business of the contractor with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
(v) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by the contractor as
requirements which an individual must meet in order to be eligible for
the position held or desired.
(w) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that a disabled veteran poses a direct threat shall be based on an
individualized assessment of the individual's present ability to
perform safely the essential functions of the job. This assessment
shall be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence. In determining whether an individual would pose a direct
threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(x) Compliance evaluation means any one or combination of actions
OFCCP may take to examine a Federal contractor's or subcontractor's
compliance with one or more of the requirements of the Vietnam Era
Veterans' Readjustment Assistance Act.
(y) Employment service delivery system means a service delivery
system at which or through which labor exchange services, including
employment, training, and placement services, are offered in accordance
with the Wagner-Peyser Act.
(z) Veteran means a person who served in the active military,
naval, or air service of the United States, and who was discharged or
released therefrom under conditions other than dishonorable.
Sec. 60-300.3 [Reserved]
Sec. 60-300.4 Coverage and waivers.
(a) General--(1) Contracts and subcontracts of $100,000 or more.
Contracts and subcontracts of $100,000 or more are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of
the equal opportunity clause.
(2) Contracts for indefinite quantities. With respect to indefinite
delivery-type contracts (including, but not limited to, open end
contracts, requirement-type contracts, Federal Supply Schedule
contracts, ``call-type'' contracts, and purchase notice agreements),
the equal opportunity clause shall be included unless the contracting
agency has reason to believe that the amount to be ordered in any year
under such contract will be less than $100,000. The applicability of
the equal opportunity clause shall be determined at the time of award
for the first year, and annually thereafter for succeeding years, if
any. Notwithstanding the above, the equal opportunity clause shall be
applied to such contract whenever the amount of a single order is
$100,000 or more. Once the equal opportunity clause is determined to be
applicable, the contract shall continue to be subject to such clause
for its duration, regardless of the amounts ordered, or reasonably
expected to be ordered in any year.
(3) Employment activities within the United States. This part
applies only to
[[Page 44404]]
employment activities within the United States and not to employment
activities abroad. The term ``employment activities within the United
States'' includes actual employment within the United States, and
decisions of the contractor made within the United States pertaining to
the contractor's applicants and employees who are within the United
States, regarding employment opportunities abroad (such as recruiting
and hiring within the United States for employment abroad, or transfer
of persons employed in the United States to contractor establishments
abroad).
(4) Contracts with state or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a
state or local government (or any agency, instrumentality or
subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract or subcontract.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Deputy Assistant Secretary may waive the application to any contract of
the equal opportunity clause in whole or part when he or she deems that
special circumstances in the national interest so require. The Deputy
Assistant Secretary may also grant such waivers to groups or categories
of contracts: where it is in the national interest; where it is found
impracticable to act upon each request individually; and where such
waiver will substantially contribute to convenience in administration
of the Act. When a waiver has been granted for any class of contracts,
the Deputy Assistant Secretary may withdraw the waiver for a specific
contract or group of contracts to be awarded, when in his or her
judgment such action is necessary or appropriate to achieve the
purposes of the Act. The withdrawal shall not apply to contracts
awarded prior to the withdrawal, except that in procurements entered
into by formal advertising, or the various forms of restricted formal
advertising, such withdrawal shall not apply unless the withdrawal is
made more than 10 calendar days before the date set for the opening of
the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the
Deputy Assistant Secretary in writing within 30 days.
(3) Facilities not connected with contracts. The Deputy Assistant
Secretary may waive the requirements of the equal opportunity clause
with respect to any of a contractor's facilities which he or she finds
to be in all respects separate and distinct from activities of the
contractor related to the performance of the contract, provided that he
or she also finds that such a waiver will not interfere with or impede
the effectuation of the Act. Such waivers shall be considered only upon
the request of the contractor.
Sec. 60-300.5 Equal opportunity clause.
(a) Government contracts. Each contracting agency and each
contractor shall include the following equal opportunity clause in each
of its covered Government contracts or subcontracts (and modifications,
renewals, or extensions thereof if not included in the original
contract):
EQUAL OPPORTUNITY FOR DISABLED VETERANS, RECENTLY SEPARATED VETERANS,
OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS
1. The contractor will not discriminate against any employee or
applicant for employment because he or she is a disabled veteran,
recently separated veteran, other protected veteran, or Armed Forces
service medal veteran in regard to any position for which the
employee or applicant for employment is qualified. The contractor
agrees to take affirmative action to employ, advance in employment
and otherwise treat qualified individuals without discrimination
based on their status as a disabled veteran, recently separated
veteran, other protected veteran, or Armed Forces service medal
veteran in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring;
iii. Rates of pay or any other form of compensation and changes
in compensation;
iv. Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether
or not administered by the contractor;
vii. Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training;
viii. Activities sponsored by the contractor including social or
recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment
openings which exist at the time of the execution of this contract
and those which occur during the performance of this contract,
including those not generated by this contract and including those
occurring at an establishment of the contractor other than the one
where the contract is being performed, but excluding those of
independently operated corporate affiliates, with the appropriate
employment service delivery system where the opening occurs. Listing
employment openings with the state workforce agency job bank or with
the local employment service delivery system where the opening
occurs will satisfy the requirement to list jobs with the
appropriate employment service delivery system.
3. Listing of employment openings with the appropriate
employment service delivery system pursuant to this clause shall be
made at least concurrently with the use of any other recruitment
source or effort and shall involve the normal obligations which
attach to the placing of a bona fide job order, including the
acceptance of referrals of veterans and nonveterans. The listing of
employment openings does not require the hiring of any particular
job applicants or from any particular group of job applicants, and
nothing herein is intended to relieve the contractor from any
requirements in Executive orders or regulations regarding
nondiscrimination in employment.
4. Whenever a contractor, other than a state or local
governmental contractor, becomes contractually bound to the listing
provisions in paragraphs 2 and 3 of this clause, it shall advise the
state workforce agency in each state where it has establishments of
the name and location of each hiring location in the state. As long
as the contractor is contractually bound to these provisions and has
so advised the state agency, there is no need to advise the state
agency of subsequent contracts. The contractor may advise the state
agency when it is no longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not
apply to the listing of employment openings which occur and are
filled outside of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands, American
Samoa, the Commonwealth of the Northern Mariana Islands, Wake
Island, and the Trust Territories of the Pacific Islands.
6. As used in this clause: i. All employment openings includes
all positions except executive and senior management, those
positions that will be filled from within the contractor's
organization, and positions lasting three days or less. This term
includes full-time employment, temporary employment of more than
three days' duration, and part-time employment.
ii. Executive and senior management means: (1) Any employee (a)
compensated on a salary basis at a rate of not less than $455 per
week (or $380 per week, if employed in American Samoa by employers
other than the
[[Page 44405]]
Federal Government), exclusive of board, lodging or other
facilities; (b) whose primary duty is management of the enterprise
in which the employee is employed or of a customarily recognized
department or subdivision thereof; (c) who customarily and regularly
directs the work of two or more other employees; and (d) who has the
authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or
any other change of status of other employees are given particular
weight; or (2) any employee who owns at least a bona fide 20-percent
equity interest in the enterprise in which the employee is employed,
regardless of whether the business is a corporate or other type of
organization, and who is actively engaged in its management.
iii. Positions that will be filled from within the contractor's
organization means employment openings for which no consideration
will be given to persons outside the contractor's organization
(including any affiliates, subsidiaries, and parent companies) and
includes any openings which the contractor proposes to fill from
regularly established ``recall'' lists. The exception does not apply
to a particular opening once an employer decides to consider
applicants outside of his or her own organization.
7. The contractor agrees to comply with the rules, regulations,
and relevant orders of the Secretary of Labor issued pursuant to the
Act.
8. In the event of the contractor's noncompliance with the
requirements of this clause, actions for noncompliance may be taken
in accordance with the rules, regulations, and relevant orders of
the Secretary of Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices in a
form to be prescribed by the Deputy Assistant Secretary for Federal
Contract Compliance, provided by or through the contracting officer.
Such notices shall state the rights of applicants and employees as
well as the contractor's obligation under the law to take
affirmative action to employ and advance in employment qualified
employees and applicants who are disabled veterans, recently
separated veterans, other protected veterans, or Armed Forces
service medal veterans. The contractor must ensure that applicants
or employees who are disabled veterans are informed of the contents
of the notice (e.g., the contractor may have the notice read to a
visually disabled individual, or may lower the posted notice so that
it might be read by a person in a wheelchair).
10. The contractor will notify each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract understanding, that the contractor is
bound by the terms of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, and is committed to take
affirmative action to employ and advance in employment qualified
disabled veterans, recently separated veterans, other protected
veterans, and Armed Forces service medal veterans.
11. The contractor will include the provisions of this clause in
every subcontract or purchase order of $100,000 or more, unless
exempted by the rules, regulations, or orders of the Secretary
issued pursuant to the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such
action with respect to any subcontract or purchase order as the
Deputy Assistant Secretary for Federal Contract Compliance may
direct to enforce such provisions, including action for
noncompliance.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal
opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be
made to the equal opportunity clause as shall be appropriate to
identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It
is not necessary that the equal opportunity clause be quoted verbatim
in the contract. The clause may be made a part of the contract by
citation to 41 CFR 60-300.5(a).
(e) Incorporation by operation of the Act. By operation of the Act,
the equal opportunity clause shall be considered to be a part of every
contract and subcontract required by the Act and the regulations in
this part to include such a clause, whether or not it is physically
incorporated in such contract and whether or not there is a written
contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall
cooperate with the Deputy Assistant Secretary and the Secretary in the
performance of their responsibilities under the Act. Such cooperation
shall include insuring that the equal opportunity clause is included in
all covered Government contracts and that contractors are fully
informed of their obligations under the Act and this part, providing
the Deputy Assistant Secretary with any information which comes to the
agency's attention that a contractor is not in compliance with the Act
or this part, responding to requests for information from the Deputy
Assistant Secretary, and taking such actions for noncompliance as are
set forth in Sec. 60-300.66 as may be ordered by the Secretary or the
Deputy Assistant Secretary.
Subpart B--Discrimination Prohibited
Sec. 60-300.20 Covered employment activities.
The prohibition against discrimination in this part applies to the
following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(c) Rates of pay or any other form of compensation and changes in
compensation;
(d) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or
not administered by the contractor;
(g) Selection and financial support for training, including,
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and
recreational programs; and
(i) Any other term, condition, or privilege of employment.
Sec. 60-300.21 Prohibitions.
The term discrimination includes, but is not limited to, the acts
described in this section and Sec. 60-300.23.
(a) Disparate treatment. It is unlawful for the contractor to deny
an employment opportunity or benefit or otherwise to discriminate
against a qualified individual because of that individual's status as a
disabled veteran, recently separated veteran, other protected veteran,
or Armed Forces service medal veteran.
(b) Limiting, segregating and classifying. Unless otherwise
permitted by this part, it is unlawful for the contractor to limit,
segregate, or classify a job applicant or employee in a way that
adversely affects his or her employment opportunities or status on the
basis of that individual's status as a disabled veteran, recently
separated veteran, other protected veteran, or Armed Forces service
medal veteran. For example, the contractor may not segregate qualified
disabled veterans, recently separated veterans, other protected
veterans, or Armed Forces service medal veterans into separate work
areas or into separate lines of advancement.
(c) Contractual or other arrangements--(1) In general. It is
unlawful for the contractor to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the
contractor's own qualified applicant or employee who is a disabled
veteran, recently separated veteran, other protected veteran, or
[[Page 44406]]
Armed Forces service medal veteran to the discrimination prohibited by
this part.
(2) Contractual or other arrangement defined. The phrase
``contractual or other arrangement or relationship'' includes, but is
not limited to, a relationship with: an employment or referral agency;
a labor organization, including a collective bargaining agreement; an
organization providing fringe benefits to an employee of the
contractor; or an organization providing training and apprenticeship
programs.
(3) Application. This paragraph (c) applies to the contractor, with
respect to its own applicants or employees, whether the contractor
offered the contract or initiated the relationship, or whether the
contractor accepted the contract or acceded to the relationship. The
contractor is not liable for the actions of the other party or parties
to the contract which only affect that other party's employees or
applicants.
(d) Standards, criteria or methods of administration. It is
unlawful for the contractor to use standards, criteria, or methods of
administration, that are not job-related and consistent with business
necessity, and that:
(1) Have the effect of discriminating on the basis of status as a
disabled veteran, recently separated veteran, other protected veteran,
or Armed Forces service medal veteran; or
(2) Perpetuate the discrimination of others who are subject to
common administrative control.
(e) Relationship or association with a disabled veteran, recently
separated veteran, other protected veteran, or Armed Forces service
medal veteran. It is unlawful for the contractor to exclude or deny
equal jobs or benefits to, or otherwise discriminate against, a
qualified individual because of the known disabled veteran, recently
separated veteran, other protected veteran, or Armed Forces service
medal veteran status of an individual with whom the qualified
individual is known to have a family, business, social or other
relationship or association.
(f) Not making reasonable accommodation. (1) It is unlawful for the
contractor to fail to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee who is a disabled veteran, unless such contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business.
(2) It is unlawful for the contractor to deny employment
opportunities to an otherwise qualified job applicant or employee who
is a disabled veteran based on the need of such contractor to make
reasonable accommodation to such an individual's physical or mental
impairments.
(3) A qualified disabled veteran is not required to accept an
accommodation, aid, service, opportunity or benefit which such
qualified individual chooses not to accept. However, if such individual
rejects a reasonable accommodation, aid, service, opportunity or
benefit that is necessary to enable the individual to perform the
essential functions of the position held or desired, and cannot, as a
result of that rejection, perform the essential functions of the
position, the individual will not be considered a qualified disabled
veteran.
(g) Qualification standards, tests and other selection criteria--
(1) In general. It is unlawful for the contractor to use qualification
standards, employment tests or other selection criteria that screen out
or tend to screen out individuals on the basis of their status as
disabled veterans, recently separated veterans, other protected
veterans, or Armed Forces service medal veterans unless the standard,
test or other selection criterion, as used by the contractor, is shown
to be job-related for the position in question and is consistent with
business necessity. Selection criteria that concern an essential
function may not be used to exclude a disabled veteran if that
individual could satisfy the criteria with provision of a reasonable
accommodation. Selection criteria that exclude or tend to exclude
individuals on the basis of their status as disabled veterans, recently
separated veterans, other protected veterans, or Armed Forces service
medal veterans but concern only marginal functions of the job would not
be consistent with business necessity. The contractor may not refuse to
hire an applicant who is a disabled veteran because the applicant's
disability prevents him or her from performing marginal functions. When
considering a disabled veteran, recently separated veteran, other
protected veteran, or Armed Forces service medal veteran for an
employment opportunity, the contractor may not rely on portions of such
veteran's military record, including his or her discharge papers, which
are not relevant to the qualification requirements of the opportunity
in issue.
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR
part 60-3, do not apply to 38 U.S.C. 4212 and are similarly
inapplicable to this part.
(h) Administration of tests. It is unlawful for the contractor to
fail to select and administer tests concerning employment in the most
effective manner to ensure that, when a test is administered to a job
applicant or employee who is a disabled veteran with a disability that
impairs sensory, manual, or speaking skills, the test results
accurately reflect the skills, aptitude, or whatever other factor of
the applicant or employee that the test purports to measure, rather
than reflecting the impaired sensory, manual, or speaking skills of
such employee or applicant, except where such skills are the factors
that the test purports to measure.
(i) Compensation. In offering employment or promotions to disabled
veterans, recently separated veterans, other protected veterans, or
Armed Forces service medal veterans, it is unlawful for the contractor
to reduce the amount of compensation offered because of any income
based upon a disability-related and/or military-service-related pension
or other disability-related and/or military-service-related benefit the
applicant or employee receives from another source.
Sec. 60-300.22 Direct threat defense.
The contractor may use as a qualification standard the requirement
that an individual be able to perform the essential functions of the
position held or desired without posing a direct threat to the health
or safety of the individual or others in the workplace. (See Sec. 60-
300.2(w) defining direct threat.)
Sec. 60-300.23 Medical examinations and inquiries.
(a) Prohibited medical examinations or inquiries. Except as stated
in paragraphs (b) and (c) of this section, it is unlawful for the
contractor to require a medical examination of an applicant or employee
or to make inquiries as to whether an applicant or employee is a
disabled veteran or as to the nature or severity of such a veteran's
disability.
(b) Permitted medical examinations and inquiries--(1) Acceptable
pre-employment inquiry. The contractor may make pre-employment
inquiries into the ability of an applicant to perform job-related
functions, and/or may ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will be
able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a
medical examination (and/or inquiry) after making an offer of
employment to a job applicant and before the applicant begins his or
her employment duties, and may condition
[[Page 44407]]
an offer of employment on the results of such examination (and/or
inquiry), if all entering employees in the same job category are
subjected to such an examination (and/or inquiry) regardless of their
status as a disabled veteran.
(3) Examination of employees. The contractor may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. The contractor may make inquiries
into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may
conduct voluntary medical examinations and activities, including
voluntary medical histories, which are part of an employee health
program available to employees at the work site.
(5) Medical examinations conducted in accordance with paragraphs
(b)(2) and (b)(4) of this section do not have to be job-related and
consistent with business necessity. However, if certain criteria are
used to screen out an applicant or applicants or an employee or
employees who are disabled veterans as a result of such examinations or
inquiries, the contractor must demonstrate that the exclusionary
criteria are job-related and consistent with business necessity, and
that performance of the essential job functions cannot be accomplished
with reasonable accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite
applicants to self-identify as being covered by the Act, as specified
in Sec. 60-300.42.
(d) Confidentiality and use of medical information. (1) Information
obtained under this section regarding the medical condition or history
of any applicant or employee shall be collected and maintained on
separate forms and in separate medical files and treated as a
confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or employee and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws
administered by OFCCP, including this part, or enforcing the Americans
with Disabilities Act, shall be provided relevant information on
request.
(2) Information obtained under this section regarding the medical
condition or history of any applicant or employee shall not be used for
any purpose inconsistent with this part.
Sec. 60-300.24 Drugs and alcohol.
(a) Specific activities permitted. The contractor:
(1) May prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) May require that employees not be under the influence of
alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment
or job performance and behavior to which the contractor holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the
regulations (if any) of the Departments of Defense and Transportation,
and of the Nuclear Regulatory Commission, and other Federal agencies
regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of Defense and
Transportation, and of the Nuclear Regulatory Commission, and other
Federal agencies that apply to employment in sensitive positions
subject to such regulations.
(b) Drug testing--(1) General policy. For purposes of this part, a
test to determine the illegal use of drugs is not considered a medical
examination. Thus, the administration of such drug tests by the
contractor to its job applicants or employees is not a violation of
Sec. 60-300.23. Nothing in this part shall be construed to encourage,
prohibit, or authorize the contractor to conduct drug tests of job
applicants or employees to determine the illegal use of drugs or to
make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be
construed to encourage, prohibit, or authorize the otherwise lawful
exercise by contractors subject to the jurisdiction of the Department
of Transportation of authority to test employees in, and applicants
for, positions involving safety-sensitive duties for the illegal use of
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this
section.
(3) Any information regarding the medical condition or history of
any employee or applicant obtained from a test to determine the illegal
use of drugs, except information regarding the illegal use of drugs, is
subject to the requirements of Sec. Sec. 60-300.23(b)(5) and 60-
300.23(d)(2).
Sec. 60-300.25 Health insurance, life insurance and other benefit
plans.
(a) An insurer, hospital, or medical service company, health
maintenance organization, or any agent or entity that administers
benefit plans, or similar organizations may underwrite risks, classify
risks, or administer such risks that are based on or not inconsistent
with state law.
(b) The contractor may establish, sponsor, observe or administer
the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on
or not inconsistent with state law.
(c) The contractor may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that is not subject to state laws
that regulate insurance.
(d) The contractor may not deny a qualified disabled veteran equal
access to insurance or subject a qualified disabled veteran to
different terms or conditions of insurance based on disability alone,
if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this
section are permitted unless these activities are used as a subterfuge
to evade the purposes of this part.
Subpart C--Affirmative Action Program
Sec. 60-300.40 Applicability of the affirmative action program
requirement.
(a) The requirements of this subpart apply to every Government
contractor that has 50 or more employees and a contract of $100,000 or
more.
(b) Contractors described in paragraph (a) of this section shall,
within 120 days of the commencement of a contract, prepare and maintain
an affirmative action program at each establishment. The affirmative
action program shall set forth the contractor's policies and procedures
in accordance with this part. This program may be integrated into or
kept separate from other affirmative action programs.
[[Page 44408]]
(c) The affirmative action program shall be reviewed and updated
annually.
(d) The contractor shall submit the affirmative action program
within 30 days of a request from OFCCP, unless the request provides for
a different time. The contractor also shall make the affirmative action
program promptly available on-site upon OFCCP's request.
Sec. 60-300.41 Availability of affirmative action program.
The full affirmative action program shall be available to any
employee or applicant for employment for inspection upon request. The
location and hours during which the program may be obtained shall be
posted at each establishment.
Sec. 60-300.42 Invitation to self-identify.
(a) Disabled veterans. The contractor shall invite applicants to
inform the contractor whether the applicant believes that he or she is
a disabled veteran who may be covered by the Act and wishes to benefit
under the affirmative action program. Such invitation shall be extended
after making an offer of employment to a job applicant and before the
applicant begins his or her employment duties, except that the
contractor may invite disabled veterans to self-identify prior to
making a job offer when:
(1) The invitation is made when the contractor actually is
undertaking affirmative action for disabled veterans at the pre-offer
stage; or
(2) The invitation is made pursuant to a Federal, state or local
law requiring affirmative action for disabled veterans.
(b) Recently separated veterans, other protected veterans, and
Armed Forces service medal veterans. The contractor shall invite
applicants to inform the contractor whether the applicant believes that
he or she is a recently separated veteran, other protected veteran, or
Armed Forces service medal veteran who may be covered by the Act and
wishes to benefit under the affirmative action program. Such invitation
may be made at any time before the applicant begins his or her
employment duties.
(c) The invitations referenced in paragraphs (a) and (b) of this
section shall state that a request to benefit under the affirmative
action program may be made immediately and/or at any time in the
future. The invitations also shall summarize the relevant portions of
the Act and the contractor's affirmative action program. Furthermore,
the invitations shall state that the information is being requested on
a voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant to any adverse treatment, and
that it will not be used in a manner inconsistent with the Act. (An
acceptable form for such an invitation is set forth in Appendix B of
this part. Because a contractor usually may not seek advice from a
disabled veteran regarding placement and accommodation until after a
job offer has been extended, the invitation set forth in Appendix B of
this part contains instructions regarding modifications to be made if
it is used at the pre-offer stage.)
(d) If an applicant so identifies himself or herself as a disabled
veteran, the contractor should also seek the advice of the applicant
regarding proper placement and appropriate accommodation, after a job
offer has been extended. The contractor also may make such inquiries to
the extent they are consistent with the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. 12101, (e.g., in the context of asking
applicants to describe or demonstrate how they would perform the job).
The contractor shall maintain a separate file in accordance with Sec.
60-300.23(d) on persons who have self-identified as disabled veterans.
(e) The contractor shall keep all information on self
identification confidential. The contractor shall provide the
information to OFCCP upon request. This information may be used only in
accordance with this part.
(f) Nothing in this section shall relieve the contractor of its
obligation to take affirmative action with respect to those applicants
or employees who are known to the contractor to be disabled veterans,
recently separated veterans, other protected veterans, or Armed Forces
service medal veterans.
(g) Nothing in this section shall relieve the contractor from
liability for discrimination under the Act.
Sec. 60-300.43 Affirmative action policy.
Under the affirmative action obligations imposed by the Act
contractors shall not discriminate because of status as a disabled
veteran, recently separated veteran, other protected veteran, or Armed
Forces service medal veteran and shall take affirmative action to
employ and advance in employment qualified disabled veterans, recently
separated veterans, other protected veterans, and Armed Forces service
medal veterans at all levels of employment, including the executive
level. Such action shall apply to all employment activities set forth
in Sec. 60-300.20.
Sec. 60-300.44 Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not
necessarily be limited to, the following ingredients:
(a) Policy statement. The contractor shall include an equal
opportunity policy statement in its affirmative action program, and
shall post the policy statement on company bulletin boards. The
contractor must ensure that applicants and employees who are disabled
veterans are informed of the contents of the policy statement (for
example, the contractor may have the statement read to a visually
disabled individual, or may lower the posted notice so that it may be
read by a person in a wheelchair). The policy statement should indicate
the chief executive officer's attitude on the subject matter, provide
for an audit and reporting system (see paragraph (h) of this section)
and assign overall responsibility for the implementation of affirmative
action activities required under this part (see paragraph (i) of this
section). Additionally, the policy should state, among other things,
that the contractor will: recruit, hire, train and promote persons in
all job titles, and ensure that all other personnel actions are
administered, without regard to disabled veteran, recently separated
veteran, other protected veteran, or Armed Forces service medal veteran
status; and ensure that all employment decisions are based only on
valid job requirements. The policy shall state that employees and
applicants shall not be subjected to harassment, intimidation, threats,
coercion or discrimination because they have engaged in or may engage
in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance
evaluation, hearing, or any other activity related to the
administration of the affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA) or
any other Federal, state or local law requiring equal opportunity for
disabled veterans, recently separated veterans, other protected
veterans, or Armed Forces service medal veterans;
(3) Opposing any act or practice made unlawful by VEVRAA or its
implementing regulations in this part or any other Federal, state or
local law requiring equal opportunity for disabled veterans, recently
separated veterans, other protected veterans, or Armed Forces service
medal veterans; or
(4) Exercising any other right protected by VEVRAA or its
implementing regulations in this part.
[[Page 44409]]
(b) Review of personnel processes. The contractor shall ensure that
its personnel processes provide for careful, thorough, and systematic
consideration of the job qualifications of applicants and employees who
are known disabled veterans, recently separated veterans, other
protected veterans, or Armed Forces service medal veterans for job
vacancies filled either by hiring or promotion, and for all training
opportunities offered or available. The contractor shall ensure that
when a disabled veteran, recently separated veteran, other protected
veteran, or Armed Forces service medal veteran is considered for
employment opportunities, the contractor relies only on that portion of
the individual's military record, including his or her discharge
papers, that is relevant to the requirements of the opportunity in
issue. The contractor shall ensure that its personnel processes do not
stereotype disabled veterans, recently separated veterans, other
protected veterans, and Armed Forces service medal veterans in a manner
which limits their access to all jobs for which they are qualified. The
contractor shall periodically review such processes and make any
necessary modifications to ensure that these obligations are carried
out. A description of the review and any necessary modifications to
personnel processes or development of new processes shall be included
in any affirmative action programs required under this part. The
contractor must design procedures that facilitate a review of the
implementation of this requirement by the contractor and the
Government. (Appendix C of this part is an example of an appropriate
set of procedures. The procedures in Appendix C of this part are not
required and contractors may develop other procedures appropriate to
their circumstances.)
(c) Physical and mental qualifications. (1) The contractor shall
provide in its affirmative action program, and shall adhere to, a
schedule for the periodic review of all physical and mental job
qualification standards to ensure that, to the extent qualification
standards tend to screen out qualified disabled veterans, they are job-
related for the position in question and are consistent with business
necessity.
(2) Whenever the contractor applies physical or mental
qualification standards in the selection of applicants or employees for
employment or other change in employment status such as promotion,
demotion or training, to the extent that qualification standards tend
to screen out qualified disabled veterans, the standards shall be
related to the specific job or jobs for which the individual is being
considered and consistent with business necessity. The contractor shall
have the burden to demonstrate that it has complied with the
requirements of this paragraph (c)(2).
(3) The contractor may use as a defense to an allegation of a
violation of paragraph (c)(2) of this section that an individual poses
a direct threat to the health or safety of the individual or others in
the workplace. (See Sec. 60-300.2(w) defining direct threat.)
(d) Reasonable accommodation to physical and mental limitations. As
is provided in Sec. 60-300.21(f), as a matter of nondiscrimination the
contractor must make reasonable accommodation to the known physical or
mental limitations of an otherwise qualified disabled veteran unless it
can demonstrate that the accommodation would impose an undue hardship
on the operation of its business. As a matter of affirmative action, if
an employee who is known to be a disabled veteran is having significant
difficulty performing his or her job and it is reasonable to conclude
that the performance problem may be related to the known disability,
the contractor shall confidentially notify the employee of the
performance problem and inquire whether the problem is related to the
employee's disability; if the employee responds affirmatively, the
contractor shall confidentially inquire whether the employee is in need
of a reasonable accommodation.
(e) Harassment. The contractor must develop and implement
procedures to ensure that its employees are not harassed because of
their status as a disabled veteran, recently separated veteran, other
protected veteran, or Armed Forces service medal veteran.
(f) External dissemination of policy, outreach and positive
recruitment. The contractor shall undertake appropriate outreach and
positive recruitment activities such as those listed in paragraphs
(f)(1) through (f)(8) of this section that are reasonably designed to
effectively recruit qualified disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans. It is not contemplated that the contractor will necessarily
undertake all the activities listed in paragraphs (f)(1) through (f)(8)
of this section or that its activities will be limited to those listed.
The scope of the contractor's efforts shall depend upon all the
circumstances, including the contractor's size and resources and the
extent to which existing employment practices are adequate.
(1) The contractor should enlist the assistance and support of the
following persons and organizations in recruiting, and developing on-
the-job training opportunities for, qualified disabled veterans,
recently separated veterans, other protected veterans, and Armed Forces
service medal veterans, to fulfill its commitment to provide meaningful
employment opportunities to such veterans:
(i) The Local Veterans' Employment Representative in the local
employment service office nearest the contractor's establishment;
(ii) The Department of Veterans Affairs Regional Office nearest the
contractor's establishment;
(iii) The veterans' counselors and coordinators (``Vet-Reps'') on
college campuses;
(iv) The service officers of the national veterans' groups active
in the area of the contractor's establishment; and
(v) Local veterans' groups and veterans' service centers near the
contractor's establishment.
(2) Formal briefing sessions should be held, preferably on company
premises, with representatives from recruiting sources. Plant tours,
clear and concise explanations of current and future job openings,
position descriptions, worker specifications, explanations of the
company's selection process, and recruiting literature should be an
integral part of the briefing. Formal arrangements should be made for
referral of applicants, follow up with sources, and feedback on
disposition of applicants.
(3) The contractor's recruitment efforts at all educational
institutions should incorporate special efforts to reach students who
are disabled veterans, recently separated veterans, other protected
veterans, or Armed Forces service medal veterans. An effort should be
made to participate in work-study programs with Department of Veterans
Affairs rehabilitation facilities which specialize in training or
educating disabled veterans.
(4) The contractor should establish meaningful contacts with
appropriate veterans' service organizations which serve disabled
veterans, recently separated veterans, other protected veterans, or
Armed Forces service medal veterans for such purposes as advice,
technical assistance, and referral of potential employees. Technical
assistance from the resources described in this paragraph may consist
of advice on proper placement, recruitment, training and accommodations
contractors may undertake, but no such resource providing technical
assistance
[[Page 44410]]
shall have authority to approve or disapprove the acceptability of
affirmative action programs.
(5) Disabled veterans, recently separated veterans, other protected
veterans, or Armed Forces service medal veterans should be made
available for participation in career days, youth motivation programs,
and related activities in their communities.
(6) The contractor should send written notification of company
policy to all subcontractors, vendors and suppliers, requesting
appropriate action on their part.
(7) The contractor should take positive steps to attract qualified
disabled veterans, recently separated veterans, other protected
veterans, and Armed Forces service medal veterans not currently in the
work force who have requisite skills and can be recruited through
affirmative action measures. These persons may be located through the
local chapters of organizations of and for disabled veterans, recently
separated veterans, other protected veterans, and Armed Forces service
medal veterans.
(8) The contractor, in making hiring decisions, should consider
applicants who are known disabled veterans, recently separated
veterans, other protected veterans, or Armed Forces service medal
veterans for all available positions for which they may be qualified
when the position(s) applied for is unavailable.
(g) Internal dissemination of policy. (1) A strong outreach program
will be ineffective without adequate internal support from supervisory
and management personnel and other employees. In order to assure
greater employee cooperation and participation in the contractor's
efforts, the contractor shall develop internal procedures such as those
listed in paragraph (g)(2) of this section for communication of its
obligation to engage in affirmative action efforts to employ and
advance in employment qualified disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans. It is not contemplated that the contractor will necessarily
undertake all the activities listed in paragraph (g)(2) of this section
or that its activities will be limited to those listed. These
procedures shall be designed to foster understanding, acceptance and
support among the contractor's executive, management, supervisory and
other employees and to encourage such persons to take the necessary
actions to aid the contractor in meeting this obligation. The scope of
the contractor's efforts shall depend upon all the circumstances,
including the contractor's size and resources and the extent to which
existing practices are adequate.
(2) The contractor should implement and disseminate this policy
internally as follows:
(i) Include it in the contractor's policy manual;
(ii) Inform all employees and prospective employees of its
commitment to engage in affirmative action to increase employment
opportunities for qualified disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans. The contractor should periodically schedule special meetings
with all employees to discuss policy and explain individual employee
responsibilities;
(iii) Publicize it in the company newspaper, magazine, annual
report and other media;
(iv) Conduct special meetings with executive, management, and
supervisory personnel to explain the intent of the policy and
individual responsibility for effective implementation, making clear
the chief executive officer's attitude;
(v) Discuss the policy thoroughly in both employee orientation and
management training programs;
(vi) Meet with union officials and/or employee representatives to
inform them of the contractor's policy, and request their cooperation;
(vii) Include articles on accomplishments of disabled veterans,
recently separated veterans, other protected veterans, and Armed Forces
service medal veterans in company publications; and
(viii) When employees are featured in employee handbooks or similar
publications for employees, include disabled veterans.
(h) Audit and reporting system. (1) The contractor shall design and
implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative
action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives
have been attained;
(iv) Determine whether known disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans have had the opportunity to participate in all company
sponsored educational, training, recreational and social activities;
and
(v) Measure the contractor's compliance with the affirmative action
program's specific obligations.
(2) Where the affirmative action program is found to be deficient,
the contractor shall undertake necessary action to bring the program
into compliance.
(i) Responsibility for implementation. An official of the
contractor shall be assigned responsibility for implementation of the
contractor's affirmative action activities under this part. His or her
identity should appear on all internal and external communications
regarding the company's affirmative action program. This official shall
be given necessary senior management support and staff to manage the
implementation of this program.
(j) Training. All personnel involved in the recruitment, screening,
selection, promotion, disciplinary, and related processes shall be
trained to ensure that the commitments in the contractor's affirmative
action program are implemented.
Subpart D--General Enforcement and Complaint Procedures
Sec. 60-300.60 Compliance evaluations.
(a) OFCCP may conduct compliance evaluations to determine if the
contractor is taking affirmative action to employ, advance in
employment and otherwise treat qualified individuals without
discrimination based on their status as a disabled veteran, recently
separated veteran, other protected veteran, or Armed Forces service
medal veteran in all employment practices. A compliance evaluation may
consist of any one or any combination of the following investigative
procedures:
(1) Compliance review. A comprehensive analysis and evaluation of
the hiring and employment practices of the contractor, the written
affirmative action program, and the results of the affirmative action
efforts undertaken by the contractor. A compliance review may proceed
in three stages:
(i) A desk audit of the written affirmative action program and
supporting documentation to determine whether all elements required by
the regulations in this part are included, whether the affirmative
action program meets agency standards of reasonableness, and whether
the affirmative action program and supporting documentation satisfy
agency standards of acceptability. The desk audit is conducted at OFCCP
offices;
(ii) An on-site review, conducted at the contractor's establishment
to investigate unresolved problem areas identified in the affirmative
action program and supporting documentation
[[Page 44411]]
during the desk audit, to verify that the contractor has implemented
the affirmative action program and has complied with those regulatory
obligations not required to be included in the affirmative action
program, and to examine potential instances or issues of
discrimination. An on-site review normally will involve an examination
of the contractor's personnel and employment policies, inspection and
copying of documents related to employment actions, and interviews with
employees, supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied
by the contractor or otherwise gathered during or pursuant to the on-
site review;
(2) Off-site review of records. An analysis and evaluation of the
affirmative action program (or any part thereof) and supporting
documentation, and other documents related to the contractor's
personnel policies and employment actions that may be relevant to a
determination of whether the contractor has complied with the
requirements of the Executive Order and regulations;
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-300.80; at the contractor's
option the documents may be provided either on-site or off-site; or
(4) Focused review. An on-site review restricted to one or more
components of the contractor's organization or one or more aspects of
the contractor's employment practices.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion
pursuant to Sec. 60-300.62.
(c) Reporting Requirements. During a compliance evaluation, OFCCP
may verify whether the contractor has complied with applicable
reporting requirements required under regulations promulgated by the
Veterans' Employment and Training Service (VETS). If the contractor has
not complied with any such reporting requirement, OFCCP will notify
VETS.
Sec. 60-300.61 Complaint procedures.
(a) Place and time of filing. Any applicant for employment with a
contractor or any employee of a contractor may, personally, or by an
authorized representative, file a written complaint alleging a
violation of the Act or the regulations in this part. The complaint may
allege individual or class-wide violation(s). Such complaint must be
filed within 300 days of the date of the alleged violation, unless the
time for filing is extended by OFCCP for good cause shown. Complaints
may be submitted to the OFCCP, 200 Constitution Avenue, NW.,
Washington, DC 20210, or to any OFCCP regional, district, or area
office. Complaints may also be submitted to the Veterans' Employment
and Training Service of the Department of Labor directly, or through
the Local Veterans' Employment Representative (LVER) at the local
employment service office. Such parties will assist veterans in
preparing complaints, promptly refer such complaints to OFCCP, and
maintain a record of all complaints which they receive and forward.
OFCCP shall inform the party forwarding the complaint of the progress
and results of its complaint investigation. The state workforce agency
shall cooperate with the Deputy Assistant Secretary in the
investigation of any complaint.
(b) Contents of complaints--(1) In general. A complaint must be
signed by the complainant or his or her authorized representative and
must contain the following information:
(i) Name and address (including telephone number) of the
complainant;
(ii) Name and address of the contractor who committed the alleged
violation;
(iii) Documentation showing that the individual is a disabled
veteran, recently separated veteran, other protected veteran, or Armed
Forces service medal veteran. Such documentation must include a copy of
the veteran's form DD-214, and, where applicable, a copy of the
veteran's Benefits Award Letter, or similar Department of Veterans
Affairs certification, updated within one year prior to the date the
complaint is filed;
(iv) A description of the act or acts considered to be a violation,
including the pertinent dates (in the case of an alleged continuing
violation, the earliest and most recent date that the alleged violation
occurred should be stated); and
(v) Other pertinent information available which will assist in the
investigation and resolution of the complaint, including the name of
any known Federal agency with which the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized
representative need not identify by name the person on whose behalf it
is filed. The person filing the complaint, however, shall provide OFCCP
with the name, address and telephone number of the person on whose
behalf it is made, and the other information specified in paragraph
(b)(1) of this section. OFCCP shall verify the authorization of such a
complaint by the person on whose behalf the complaint is made. Any such
person may request that OFCCP keep his or her identity confidential,
and OFCCP will protect the individual's confidentiality wherever that
is possible given the facts and circumstances in the complaint.
(c) Incomplete information. Where a complaint contains incomplete
information, OFCCP shall seek the needed information from the
complainant. If the information is not furnished to OFCCP within 60
days of the date of such request, the case may be closed.
(d) Investigations. The Department of Labor shall institute a
prompt investigation of each complaint.
(e) Resolution of matters. (1) If the complaint investigation finds
no violation of the Act or this part, or if the Deputy Assistant
Secretary decides not to refer the matter to the Solicitor of Labor for
enforcement proceedings against the contractor pursuant to Sec. 60-
300.65(a)(1), the complainant and contractor shall be so notified. The
Deputy Assistant Secretary, on his or her own initiative, may
reconsider his or her determination or the determination of any of his
or her designated officers who have authority to issue Notifications of
Results of Investigation.
(2) The Deputy Assistant Secretary will review all determinations
of no violation that involve complaints that are not also cognizable
under Title I of the Americans with Disabilities Act.
(3) In cases where the Deputy Assistant Secretary decides to
reconsider the determination of a Notification of Results of
Investigation, the Deputy Assistant Secretary shall provide prompt
notification of his or her intent to reconsider, which is effective
upon issuance, and his or her final determination after
reconsideration, to the person claiming to be aggrieved, the person
making the complaint on behalf of such person, if any, and the
contractor.
(4) If the investigation finds a violation of the Act or this part,
OFCCP shall invite the contractor to participate in conciliation
discussions pursuant to Sec. 60-300.62.
Sec. 60-300.62 Conciliation agreements.
If a compliance evaluation, complaint investigation or other review
by OFCCP finds a material violation of the Act or this part, and if the
contractor is willing to correct the violations and/or deficiencies,
and if OFCCP determines that settlement on that basis (rather than
referral for consideration of formal enforcement) is appropriate, a
written conciliation agreement shall be
[[Page 44412]]
required. The agreement shall provide for such remedial action as may
be necessary to correct the violations and/or deficiencies noted,
including, where appropriate (but not necessarily limited to) such make
whole remedies as back pay and retroactive seniority. The agreement
shall also specify the time period for completion of the remedial
action; the period shall be no longer than the minimum period necessary
to complete the action.
Sec. 60-300.63 Violation of conciliation agreements.
(a) When OFCCP believes that a conciliation agreement has been
violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth
the violation alleged and summarizing the supporting evidence. The
contractor shall have 15 days from receipt of the notice to respond,
except in those cases in which OFCCP asserts that such a delay would
result in irreparable injury to the employment rights of affected
employees or applicants.
(2) During the 15-day period the contractor may demonstrate in
writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result
in irreparable injury to the employment rights of affected employees or
applicants, enforcement proceedings may be initiated immediately
without proceeding through any other requirement contained in this
chapter.
(c) In any proceedings involving an alleged violation of a
conciliation agreement OFCCP may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement.
Sec. 60-300.64 Show cause notices.
When the Deputy Assistant Secretary has reasonable cause to believe
that the contractor has violated the Act or this part, he or she may
issue a notice requiring the contractor to show cause, within 30 days,
why monitoring, enforcement proceedings or other appropriate action to
ensure compliance should not be instituted. The issuance of such a
notice is not a prerequisite to instituting enforcement proceedings
(see Sec. 60-300.65).
Sec. 60-300.65 Enforcement proceedings.
(a) General. (1) If a compliance evaluation, complaint
investigation or other review by OFCCP finds a violation of the Act or
this part, and the violation has not been corrected in accordance with
the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than
settlement) is appropriate, OFCCP may refer the matter to the Solicitor
of Labor with a recommendation for the institution of enforcement
proceedings to enjoin the violations, to seek appropriate relief, and
to impose appropriate sanctions, or any of the above in this sentence.
OFCCP may seek back pay and other make whole relief for aggrieved
individuals identified during a complaint investigation or compliance
evaluation. Such individuals need not have filed a complaint as a
prerequisite to OFCCP seeking such relief on their behalf. Interest on
back pay shall be calculated from the date of the loss and compounded
quarterly at the percentage rate established by the Internal Revenue
Service for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Deputy Assistant Secretary may, within the limitations of
applicable law, seek appropriate judicial action to enforce the
contractual provisions set forth in Sec. 60-300.5, including
appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the Act and this
part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges contained in 29 CFR part 18,
subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended
findings, conclusions and decision of the Administrative Law Judge, or
the submission of exceptions and responses to exceptions to such
decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights and Labor-Management, Regional Solicitors,
and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended;
to ``equal opportunity clause'' shall mean the equal opportunity clause
published at Sec. 60-300.5; and to ``regulations'' shall mean the
regulations contained in this part.
Sec. 60-300.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the
Deputy Assistant Secretary, so much of the accrued payment due on the
contract or any other contract between the Government contractor and
the Federal Government may be withheld as necessary to correct any
violations of the provisions of the Act or this part.
(b) Termination. A contract may be canceled or terminated, in whole
or in part, for failure to comply with the provisions of the Act or
this part.
(c) Debarment. A contractor may be debarred from receiving future
contracts for failure to comply with the provisions of the Act or this
part subject to reinstatement pursuant to Sec. 60-300.68. Debarment
may be imposed for an indefinite period, or may be imposed for a fixed
period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall
be afforded to a contractor before the imposition of any sanction or
penalty.
Sec. 60-300.67 Notification of agencies.
The Deputy Assistant Secretary shall ensure that the heads of all
agencies are notified of any debarments taken against any contractor.
Sec. 60-300.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from
further contracts for an indefinite period under the Act may request
reinstatement in a letter filed with the Deputy Assistant Secretary at
any time after the effective date of the debarment; a contractor
debarred for a fixed period may make such a request following the
expiration of six months from the effective date of the debarment. In
connection with the reinstatement proceedings, all debarred contractors
shall be required to show that they have established and will carry out
employment policies and practices in compliance with the Act and this
part. Additionally, in determining whether reinstatement is appropriate
for a contractor debarred for a fixed period, the Deputy Assistant
Secretary also shall consider, among other factors, the severity of the
violation which resulted in the debarment, the contractor's attitude
towards compliance, the contractor's past compliance history, and
whether the contractor's reinstatement would impede the effective
enforcement of the Act or this part. Before reaching a decision, the
Deputy Assistant Secretary may conduct a compliance evaluation of the
contractor and may require the contractor to supply additional
[[Page 44413]]
information regarding the request for reinstatement. The Deputy
Assistant Secretary shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a
decision denying a request for reinstatement, the contractor may file a
petition for review of the decision with the Secretary. The petition
shall set forth the grounds for the contractor's objections to the
Deputy Assistant Secretary's decision. The petition shall be served on
the Deputy Assistant Secretary and the Associate Solicitor for Civil
Rights and Labor-Management and shall include the decision as an
appendix. The Deputy Assistant Secretary may file a response within 14
days to the petition. The Secretary shall issue the final agency
decision denying or granting the request for reinstatement. Before
reaching a final decision, the Secretary may issue such additional
orders respecting procedure as he or she finds appropriate in the
circumstances, including an order referring the matter to the Office of
Administrative Law Judges for an evidentiary hearing where there is a
material factual dispute that cannot be resolved on the record before
the Secretary.
Sec. 60-300.69 Intimidation and interference.
(a) The contractor shall not harass, intimidate, threaten, coerce,
or discriminate against any individual because the individual has
engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation,
compliance evaluation, hearing, or any other activity related to the
administration of the Act or any other Federal, state or local law
requiring equal opportunity for disabled veterans, recently separated
veterans, other protected veterans, or Armed Forces service medal
veterans;
(3) Opposing any act or practice made unlawful by the Act or this
part or any other Federal, state or local law requiring equal
opportunity for disabled veterans, recently separated veterans, other
protected veterans, or Armed Forces service medal veterans, or
(4) Exercising any other right protected by the Act or this part.
(b) The contractor shall ensure that all persons under its control
do not engage in such harassment, intimidation, threats, coercion or
discrimination. The sanctions and penalties contained in this part may
be exercised by the Deputy Assistant Secretary against any contractor
who violates this obligation.
Sec. 60-300.70 Disputed matters related to compliance with the Act.
The procedures set forth in the regulations in this part govern all
disputes relative to the contractor's compliance with the Act and this
part. Any disputes relating to issues other than compliance, including
contract costs arising out of the contractor's efforts to comply, shall
be determined by the disputes clause of the contract.
Subpart E--Ancillary Matters
Sec. 60-300.80 Recordkeeping.
(a) General requirements. Any personnel or employment record made
or kept by the contractor shall be preserved by the contractor for a
period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the
contractor has fewer than 150 employees or does not have a Government
contract of at least $150,000, the minimum record retention period
shall be one year from the date of the making of the record or the
personnel action involved, whichever occurs later. Such records
include, but are not necessarily limited to, records relating to
requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes;
tests and test results; interview notes; and other records having to do
with hiring, assignment, promotion, demotion, transfer, lay-off or
termination, rates of pay or other terms of compensation, and selection
for training or apprenticeship. In the case of involuntary termination
of an employee, the personnel records of the individual terminated
shall be kept for a period of two years from the date of the
termination, except that contractors that have fewer than 150 employees
or that do not have a Government contract of at least $150,000 shall
keep such records for a period of one year from the date of the
termination. Where the contractor has received notice that a complaint
of discrimination has been filed, that a compliance evaluation has been
initiated, or that an enforcement action has been commenced, the
contractor shall preserve all personnel records relevant to the
complaint, compliance evaluation or action until final disposition of
the complaint, compliance evaluation or action. The term personnel
records relevant to the complaint, compliance evaluation or action
would include, for example, personnel or employment records relating to
the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person, and application
forms or test papers completed by an unsuccessful applicant and by all
other candidates for the same position as that for which the aggrieved
person applied and was rejected.
(b) Failure to preserve records. Failure to preserve complete and
accurate records as required by paragraph (a) of this section
constitutes noncompliance with the contractor's obligations under the
Act and this part. Where the contractor has destroyed or failed to
preserve records as required by this section, there may be a
presumption that the information destroyed or not preserved would have
been unfavorable to the contractor: Provided, That this presumption
shall not apply where the contractor shows that the destruction or
failure to preserve records results from circumstances that are outside
of the contractor's control.
(c) The requirements of this section shall apply only to records
made or kept on or after the date that the Office of Management and
Budget has cleared the requirements.
Sec. 60-300.81 Access to records.
Each contractor shall permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
evaluations and complaint investigations and inspecting and copying
such books and accounts and records, including computerized records,
and other material as may be relevant to the matter under investigation
and pertinent to compliance with the Act or this part. Information
obtained in this manner shall be used only in connection with the
administration of the Act and in furtherance of the purposes of the
Act.
Sec. 60-300.82 Labor organizations and recruiting and training
agencies.
(a) Whenever performance in accordance with the equal opportunity
clause or any matter contained in the regulations in this part may
necessitate a revision of a collective bargaining agreement, the labor
organizations which are parties to such agreement shall be given an
adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through
contractors, subcontractors, local officials, the Department of
Veterans Affairs, vocational rehabilitation facilities, and all other
available instrumentalities, to cause any labor organization,
recruiting and training agency or other representative of workers who
are employed by a contractor to cooperate
[[Page 44414]]
with, and to assist in, the implementation of the purposes of the Act.
Sec. 60-300.83 Rulings and interpretations.
Rulings under or interpretations of the Act and this part shall be
made by the Deputy Assistant Secretary.
Sec. 60-300.84 Responsibilities of appropriate employment service
delivery system.
By statute, appropriate employment service delivery systems are
required to refer qualified disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans to fill employment openings listed by contractors with such
appropriate employment delivery systems pursuant to the mandatory job
listing requirements of the equal opportunity clause and are required
to give priority to disabled veterans, recently separated veterans,
other protected veterans, and Armed Forces service medal veterans in
making such referrals. The employment service delivery systems shall
provide OFCCP, upon request, information pertinent to whether the
contractor is in compliance with the mandatory job listing requirements
of the equal opportunity clause.
Appendix A to Part 60-300--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA) set
out as an appendix to the regulations issued by the Equal Employment
Opportunity Commission (EEOC) implementing the ADA (29 CFR part
1630). Although the following discussion is intended to provide an
independent ``free-standing'' source of guidance with respect to the
duty to provide reasonable accommodation under this part, to the
extent that the EEOC appendix provides additional guidance which is
consistent with the following discussion, it may be relied upon for
purposes of this part as well. See Sec. 60-300.1(c). Contractors
are obligated to provide reasonable accommodation and to take
affirmative action. Reasonable accommodation under VEVRAA, like
reasonable accommodation required under Section 503 and the ADA, is
a part of the nondiscrimination obligation. See EEOC appendix cited
in this paragraph. Affirmative action is unique to VEVRAA and
Section 503, and includes actions above and beyond those required as
a matter of nondiscrimination. An example of this is the requirement
discussed in paragraph 2 of this appendix that a contractor shall
make an inquiry of a disabled veteran who is having significant
difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an ``otherwise
qualified'' disabled veteran, unless the contractor can demonstrate
that the accommodation would impose an undue hardship on the
operation of its business. As stated in Sec. 60-300.2(o), a
disabled veteran is qualified if he or she has the ability to
perform the essential functions of the position with or without
reasonable accommodation. A contractor is required to make a
reasonable accommodation with respect to its application process if
the disabled veteran is qualified with respect to that process. One
is ``otherwise qualified'' if he or she is qualified for a job,
except that, because of a disability, he or she needs a reasonable
accommodation to be able to perform the job's essential functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees who are known to be disabled veterans. As
stated in Sec. 60-300.42(a) (see also Appendix B of this part), the
contractor is required to invite applicants who have been provided
an offer of employment, before they are placed on the contractor's
payroll, to indicate whether they are a disabled veteran who may be
covered by the Act and wish to benefit under the contractor's
affirmative action program. Section 60-300.42(d) further provides
that the contractor should seek the advice of disabled veterans who
``self-identify'' in this way as to proper placement and appropriate
accommodation. Moreover, Sec. 60-300.44(d) provides that if an
employee who is a known disabled veteran is having significant
difficulty performing his or her job and it is reasonable to
conclude that the performance problem may be related to the
disability, the contractor is required to confidentially inquire
whether the problem is disability related and if the employee is in
need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables a disabled veteran
to enjoy equal employment opportunities. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment, as are available to the average similarly situated
employee without a disability. Thus, for example, an accommodation
made to assist an employee who is a disabled veteran in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the ``best''
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three
areas in which reasonable accommodations may be necessary: (1)
Accommodations in the application process; (2) accommodations that
enable employees who are disabled veterans to perform the essential
functions of the position held or desired; and (3) accommodations
that enable employees who are disabled veterans to enjoy equal
benefits and privileges of employment as are enjoyed by employees
without disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source, e.g.,
the Department of Veterans Affairs or a state vocational
rehabilitation agency, or if Federal, state or local tax deductions
or tax credits are available to offset the cost of the
accommodation. In the absence of such funding, the disabled veteran
should be given the option of providing the accommodation or of
paying that portion of the cost which constitutes the undue hardship
on the operation of the business.
5. Section 60-300.2(t) lists a number of examples of the most
common types of accommodations that the contractor may be required
to provide. There are any number of specific accommodations that may
be appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is
appropriate must be made on a case-by-case basis. The contractor
generally should consult with the disabled veteran in deciding on
the appropriate accommodation; frequently, the individual will know
exactly what accommodation he or she will need to perform
successfully in a particular job, and may suggest an accommodation
which is simpler and less expensive than the accommodation the
contractor might have devised. Other resources to consult include
the appropriate state vocational rehabilitation services agency, the
Equal Employment Opportunity Commission (1-800-669-4000 (voice), 1-
800-669-6820 (TTY)), the Job Accommodation Network (JAN) operated by
the Office of Disability Employment Policy in the U.S. Department of
Labor (1-800-526-7234 or 1-800-232-9675), private disability
organizations (including those that serve veterans), and other
employers.
6. With respect to accommodations that can permit an employee
who is a disabled veteran to perform essential functions
successfully, a reasonable accommodation may require the contractor
to, for instance,
[[Page 44415]]
modify or acquire equipment. For the visually-impaired such
accommodations may include providing adaptive hardware and software
for computers, electronic visual aids, braille devices, talking
calculators, magnifiers, audio recordings and braille or large-print
materials. For persons with hearing impairments, reasonable
accommodations may include providing telephone handset amplifiers,
telephones compatible with hearing aids and telecommunications
devices for the deaf (TDDs). For persons with limited physical
dexterity, the obligation may require the provision of goose neck
telephone headsets, mechanical page turners and raised or lowered
furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by disabled veterans--including areas used
by employees for purposes other than the performance of essential
job functions such as restrooms, break rooms, cafeterias, lounges,
auditoriums, libraries, parking lots and credit unions. This type of
accommodation will enable employees to enjoy equal benefits and
privileges of employment as are enjoyed by employees who do not have
disabilities.
8. Another of the potential accommodations listed in Sec. 60-
300.2(t) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified disabled veteran cannot perform to another position.
Accordingly, if a clerical employee who is a disabled veteran is
occasionally required to lift heavy boxes containing files, but
cannot do so because of a disability, this task may be reassigned to
another employee. The contractor, however, is not required to
reallocate essential functions, i.e., those functions that the
individual who holds the job would have to perform, with or without
reasonable accommodation, in order to be considered qualified for
the position. For instance, the contractor which has a security
guard position which requires the incumbent to inspect identity
cards would not have to provide a blind disabled veteran with an
assistant to perform that duty; in such a case, the assistant would
be performing an essential function of the job for the disabled
veteran. Job restructuring may also involve allowing part-time or
modified work schedules. For instance, flexible or adjusted work
schedules could benefit disabled veterans who cannot work a standard
schedule because of the need to obtain medical treatment, or
disabled veterans with mobility impairments who depend on a public
transportation system that is not accessible during the hours of a
standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the disabled veteran's current position
would pose an undue hardship. Reassignment is not required for
applicants. However, in making hiring decisions, contractors are
encouraged to consider applicants who are known disabled veterans
for all available positions for which they may be qualified when the
position(s) applied for is unavailable. Reassignment may not be used
to limit, segregate, or otherwise discriminate against employees who
are disabled veterans by forcing reassignments to undesirable
positions or to designated offices or facilities. Employers should
reassign the individual to an equivalent position in terms of pay,
status, etc., if the individual is qualified, and if the position is
vacant within a reasonable amount of time. A ``reasonable amount of
time'' should be determined in light of the totality of the
circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned disabled veteran at the salary of the higher graded
position, and must do so if it maintains the salary of reassigned
employees who are not disabled veterans. It should also be noted
that the contractor is not required to promote a disabled veteran as
an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) Providing information
regarding job vacancies in a form accessible to disabled veterans
who are vision or hearing impaired, e.g., by making an announcement
available in braille, in large print, or on audio tape, or by
responding to job inquiries via TDDs; (2) providing readers,
interpreters and other similar assistance during the application,
testing and interview process; (3) appropriately adjusting or
modifying employment-related examinations, e.g., extending regular
time deadlines, allowing a disabled veteran who is blind or has a
learning disorder such as dyslexia to provide oral answers for a
written test, and permitting an applicant, regardless of the nature
of his or her ability, to demonstrate skills through alternative
techniques and utilization of adapted tools, aids and devices; and
(4) ensuring a disabled veteran with a mobility impairment full
access to testing locations such that the applicant's test scores
accurately reflect the applicant's skills or aptitude rather than
the applicant's mobility impairment.
Appendix B to Part 60-300--Sample Invitation to Self-identify
Note: When the invitation to self-identify is being extended to
disabled veterans prior to an offer of employment, as is permitted
in limited circumstances under Sec. Sec. 60-300.42(a)(1) and (2),
paragraph 7(ii) of this appendix, relating to identification of
reasonable accommodations, should be omitted. This will avoid a
conflict with the EEOC's ADA Guidance, which in most cases precludes
asking a job applicant (prior to a job offer being made) about
potential reasonable accommodations.
[Sample Invitation to Self-Identify]
1. This employer is a Government contractor subject to the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended, which requires Government contractors to take affirmative
action to employ and advance in employment qualified disabled
veterans, recently separated veterans, other protected veterans, and
Armed Forces service medal veterans.
2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN
INVITATION TO RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS,
AND ARMED FORCES SERVICE MEDAL VETERANS ONLY.] If you are a recently
separated veteran, other protected veteran, or Armed Forces service
medal veteran, we would like to include you under our affirmative
action program. If you would like to be included under the
affirmative action program, please tell us. The term ``recently
separated veteran'' refers to any veteran during the three-year
period beginning on the date of such veteran's discharge or release
from active duty. The term ``other protected veteran'' refers to a
person who served on active duty during a war or in a campaign or
expedition for which a campaign badge has been authorized, under
laws administered by the Department of Defense. The term ``Armed
Forces service medal veteran'' refers to a person 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 (62 FR 1209).
[THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION
TO DISABLED VETERANS ONLY.] If you are a disabled veteran, we would
like to include you in our affirmative action program. If you would
like to be included under the affirmative action program, please
tell us. This information will assist us in placing you in an
appropriate position and in making accommodations for your
disability. The term ``disabled veteran'' refers to a veteran who is
entitled to compensation (or who but for the receipt of military
retired pay would be entitled to compensation) under laws
administered by the Secretary, or was discharged or released from
active duty because of a service-connected disability.
[THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION
TO DISABLED VETERANS AS WELL AS RECENTLY SEPARATED VETERANS, OTHER
PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS.] If you
are a disabled veteran, recently separated veteran, other protected
veteran, or Armed Forces service medal veteran, we would like to
include you under our affirmative action program. If you would like
to be included under the affirmative action program, please tell us.
[The contractor should include here the definitions of ``disabled
veteran,'' ``recently separated veteran,'' ``other protected
veteran,'' and ``Armed Forces service medal veteran'' found in the
two preceding paragraphs.]
3. You may inform us of your desire to benefit under the program
at this time and/or at any time in the future.
[[Page 44416]]
4. Submission of this information is voluntary and refusal to
provide it will not subject you to any adverse treatment. The
information provided will be used only in ways that are not
inconsistent with the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended.
5. The information you submit will be kept confidential, except
that (i) supervisors and managers may be informed regarding
restrictions on the work or duties of disabled veterans, and
regarding necessary accommodations; (ii) first aid and safety
personnel may be informed, when and to the extent appropriate, if
you have a condition that might require emergency treatment; and
(iii) Government officials engaged in enforcing laws administered by
OFCCP, or enforcing the Americans with Disabilities Act, may be
informed.
6. [The contractor should here insert a brief provision
summarizing the relevant portion of its affirmative action program.]
7. [THE FOLLOWING TEXT SHOULD BE USED ONLY WHEN EXTENDING AN
INVITATION TO DISABLED VETERANS, EITHER BY THEMSELVES OR IN
COMBINATION WITH RECENTLY SEPARATED VETERANS, OTHER PROTECTED
VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS. PARAGRAPH 7(II)
SHOULD BE OMITTED WHEN THE INVITATION TO SELF-IDENTIFY IS BEING
EXTENDED PRIOR TO AN OFFER OF EMPLOYMENT.] If you are a disabled
veteran it would assist us if you tell us about (i) any special
methods, skills, and procedures which qualify you for positions that
you might not otherwise be able to do because of your disability so
that you will be considered for any positions of that kind, and (ii)
the accommodations which we could make which would enable you to
perform the job properly and safely, including special equipment,
changes in the physical layout of the job, elimination of certain
duties relating to the job, provision of personal assistance
services or other accommodations. This information will assist us in
placing you in an appropriate position and in making accommodations
for your disability.
Appendix C to Part 60-300--Review of Personnel Processes
The following is a set of procedures which contractors may use
to meet the requirements of Sec. 60-300.44(b):
1. The application or personnel form of each known applicant who
is a disabled veteran, recently separated veteran, other protected
veteran, or Armed Forces service medal veteran should be annotated
to identify each vacancy for which the applicant was considered, and
the form should be quickly retrievable for review by the Department
of Labor and the contractor's personnel officials for use in
investigations and internal compliance activities.
2. The personnel or application records of each known disabled
veteran, recently separated veteran, other protected veteran, or
Armed Forces service medal veteran should include (i) the
identification of each promotion for which the covered veteran was
considered, and (ii) the identification of each training program for
which the covered veteran was considered.
3. In each case where an employee or applicant who is a disabled
veteran, recently separated veteran, other protected veteran, or
Armed Forces service medal veteran is rejected for employment,
promotion, or training, the contractor should prepare a statement of
the reason as well as a description of the accommodations considered
(for a rejected disabled veteran). The statement of the reason for
rejection (if the reason is medically related), and the description
of the accommodations considered, should be treated as confidential
medical records in accordance with Sec. 60-300.23(d). These
materials should be available to the applicant or employee concerned
upon request.
4. Where applicants or employees are selected for hire,
promotion, or training and the contractor undertakes any
accommodation which makes it possible for him or her to place a
disabled veteran on the job, the contractor should make a record
containing a description of the accommodation. The record should be
treated as a confidential medical record in accordance with Sec.
60-300.23(d).
[FR Doc. E7-15385 Filed 8-7-07; 8:45 am]
BILLING CODE 4510-CM-P