Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Disabled Veterans, Recently
Separated Veterans, Other Protected Veterans, and Armed Forces Service
Medal Veterans [01/20/2006]
SPECIAL NOTE: The comment period for the VEVRAA NPRM published January 20, 2006 (71 FR 3351) is extended to March 28, 2006.
Due to an upgrade in the computer system, the original e-mail address published in the proposed rules is not currently functioning and is not receiving e-mail comments. Accordingly, in FR Doc. 06-440 appearing on page 3351, in the Federal Register of Friday, January 20,
2006, the e-mail address shown, "ofccp-mail@dol.esa.gov,'' is corrected to read "OFCCP-Public@dol.gov." Respondents who sent comments to the earlier e-mail address are encouraged to contact the person named below to find out if their comments were received and re-submit them to the e-mail address OFCCP-Public@dol.gov if necessary.
James C. Pierce, 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).
Volume 71, Number 13, Page 3351-3371
[[Page 3351]]
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Part II
Department of Labor
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Office of Federal Contract Compliance Programs
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41 CFR 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; Proposed Rule
[[Page 3352]]
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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: Notice of proposed rulemaking.
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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is
proposing new 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.
JVA amended VEVRAA by: Raising the dollar amount of the Government
contracts that are subject to the requirements of VEVRAA; 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 JVA amendments apply to Government contracts entered into on or
after December 1, 2003.
For the convenience of contractors, veterans, and other interested
parties, OFCCP proposes to publish the regulations implementing the JVA
amendments to VEVRAA in a new part. This proposed rule would apply only
to Government contracts entered into on or after December 1, 2003. The
existing VEVRAA implementing regulations will continue to apply to
Government contracts entered into before December 1, 2003. Contractors
with Government contracts entered into both before, and on or after
December 1, 2003, would be subject to both the requirements found in
the existing VEVRAA implementing regulations and the requirements in
today's proposal.
DATES: To be assured of consideration, comments must be received on or
before March 21, 2006.
ADDRESSES: You may submit comments, identified by RIN number 1215-AB46,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: ofccp-mail@dol-esa.gov. Include ``RIN number 1215-
AB46'' in the subject line of the message.
Fax: (202) 693-1304 (for comments of 6 pages or less).
Mail: James C. Pierce, Acting Director, Division of
Policy, Planning, and Program Development, Office of Federal Contract
Compliance Programs, Room N3422, 200 Constitution Avenue, NW.,
Washington, DC 20210.
Receipt of submissions will not be acknowledged; however, the
sender may request confirmation that a submission has been received by
telephoning OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TTY)
(these are not a toll-free numbers).
All comments received, including any personal information provided,
will be available for public inspection during normal business hours at
Room C3325, 200 Constitution Avenue, NW., Washington, DC 20210. People
needing assistance to review comments will be provided with appropriate
aids such as readers or print magnifiers. Copies of this Notice of
Proposed Rulemaking will be made available in the following formats:
large print; electronic file on computer disk; and audiotape. To
schedule an appointment to review the comments and/or to obtain this
Notice of Proposed Rulemaking in an alternate format, contact OFCCP at
the telephone numbers or address listed above.
FOR FURTHER INFORMATION CONTACT: James C. Pierce, 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:
Background
The Jobs for Veterans Act (``JVA''), (Pub. L. 107-288, 116 Stat.
2033), was signed by President Bush on November 2, 2002. Section
2(b)(1) of 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 JVA made the amendments
applicable to Government contracts entered into on or after December 1,
2003.
Prior to amendment by JVA, VEVRAA required that contractors and
subcontractors with a nonexempt Government contract in the amount of
$25,000 or more take affirmative action to employ and advance in
employment qualified 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 have 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 current regulation implementing VEVRAA at 41 CFR 60-
250.5(a) permits contractors to satisfy their job listing obligations
by listing employment openings either with the local employment service
office or with the U.S. Department of Labor's America's Job Bank.
The JVA amendments made significant changes to the affirmative
action provisions of VEVRAA. First, section 2(b)(1) of 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. JVA eliminated the category of Vietnam era
veterans from coverage under VEVRAA. However, many Vietnam era veterans
may remain covered in other categories. 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.'' JVA expanded the coverage of veterans with
disabilities. Prior to amendment by JVA, VEVRAA 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. JVA also expanded the coverage of ``recently separated
veterans'' from one to three years after discharge or release from
active duty.
Third, 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
[[Page 3353]]
with the appropriate local employment service office or with America's
Job Bank. As a result of the JVA amendments, listing job openings
solely with America's Job Bank will no longer comply with the
requirements of VEVRAA. Section 2(b)(1) of JVA requires that the
Secretary 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 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.) 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).'' Further, under JVA,
as under VEVRAA prior to the JVA amendments, contractors may exclude
from the mandatory listing requirement executive and senior management
positions, positions that are to be filled with internal candidates,
and positions lasting three days or fewer.
The JVA amendments to VEVRAA apply only to contracts entered into
on or after December 1, 2003. See 38 U.S.C. 4211 Note. Some contractors
have Government contracts that were entered into before December 1,
2003. Therefore, it will be necessary for OFCCP to maintain two sets of
VEVRAA implementing regulations. OFCCP proposes to publish regulations
implementing VEVRAA's affirmative action provisions, as amended by JVA,
in a new part 60-300. Part 60-300 will apply to contracts entered into
on or after December 1, 2003. The existing VEVRAA requirements in part
60-250 will continue to apply to contracts entered into before December
1, 2003. Contractors with contracts entered into both before, and on or
after December 1, 2003, will be subject to both the requirements found
in part 60-250 and the requirements proposed for part 60-300.
OFCCP recently published a final rule revising the VEVRAA
implementing regulations found in part 60-250 to incorporate changes
made by the Veterans Employment Opportunity Act of 1998 (VEOA) and the
Veterans Benefits and Health Care Improvement Act of 2000 (VBHCIA), (70
FR 72148, December 1, 2005). VEOA increased the amount of the contract
required to establish coverage under VEVRAA from $10,000 to $25,000,
and extended VEVRAA protection to ``other protected veterans''--those
veterans who have served on active duty during a war or in a campaign
or expedition for which a campaign badge has been authorized. VBHCIA
extended VEVRAA protection to ``recently separated veterans''--those
veterans during the one-year period beginning on the date of their
discharge or release from active duty.
We discuss specific provisions in the Section-by-Section Analysis
below.
Section-by-Section Analysis
This proposed rule is substantially similar to the existing VEVRAA
implementing regulations in part 60-250. Indeed, most of the provisions
of the proposed rule are identical to the parallel provisions in the
existing VEVRAA implementing regulations except where differences are
required to implement the amendments made by JVA. The differences
between this proposed rule and the existing regulations in part 60-250
are highlighted in the section-by-section analysis. Unless expressly
specified, this proposed rule is not intended to create a difference in
the substantive meaning between part 60-300 and part 60-250. For a more
detailed discussion of provisions in the existing part 60-250
regulations that are incorporated in this proposed rule without
substantive change see 61 FR 50080 (September 24, 1996) (Federal
Register Notice of Proposed Rulemaking for current part 60-250 rule),
63 FR 59630 (November 4, 1998)(Federal Register Final Rule for current
part 60-250 rule), and 70 FR 72148 (December 1, 2005) (Federal Register
Final Rule for current part 60-250 rule).
Part 60-300
The title of proposed part 60-300 lists the four categories of
veterans protected under JVA--disabled veterans, recently separated
veterans, other protected veterans, and Armed Forces service medal
veterans.
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. As required by the JVA amendments,
proposed 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. In proposed paragraph (b), the singular form of the
term ``contract'' is used 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 proposed part 60-300 and
existing part 60-250. Proposed paragraphs (a) and (c)(2) refer to the
four categories of veterans covered under JVA: (1) Disabled veterans,
(2) recently separated veterans, (3) other protected veterans, and (4)
Armed Forces service medal veterans.
Section 60-300.2 Definitions
The proposed rule incorporates many of the definitions contained in
existing Sec. 60-250.2 without substantive change. Some definitions in
the existing Sec. 60-250.2 have been incorporated in the proposed rule
with modifications necessitated by the JVA amendments. In addition, new
definitions have been added in the proposed rule as a result of the JVA
amendments. Accordingly, some definitions in the proposed rule have no
parallel definitions in the existing Sec. 60-250.2. Likewise, some
definitions in Sec. 60-250.2 have not been adopted in the proposed
rule because of the changes JVA made to VEVRAA.
The proposal incorporates, without change, the definitions in the
paragraphs (a) through (i), (l), (q), and (v) of Sec. 60-250.2. These
paragraphs set forth definitions for the terms: ``Act,'' ``equal
opportunity clause,'' ``Secretary,'' ``Deputy Assistant Secretary,''
``Government,'' ``United States,'' ``Recruiting and training agency,''
``contract,'' ``Government contract,'' ``subcontract,'' ``other
protected veteran,'' and ``qualification standards.''
The definitions in proposed paragraphs (j), (k), and (m) for the
terms ``contractor,'' ``prime contractor,'' and ``subcontractor,''
respectively, are substantially similar to the definitions for these
terms contained in Sec. 60-250.2, except that the provisions in the
proposed rule refer to the coverage
[[Page 3354]]
threshold of a contract of $100,000 or more established by JVA.
Proposed paragraph (n) sets forth a definition of ``disabled
veteran.'' The proposal incorporates the definition of ``disabled
veteran'' found in the statute. See 38 U.S.C. 4211(3). Thus, proposed
paragraph (n) provides that a ``disabled veteran'' is: (1) 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 of Veterans Affairs, or (2) a person who was
discharged or released from active duty because of a service-connected
disability. The category of disabled veterans is broader than the
category of ``special disabled veterans'' that was protected under
VEVRAA prior to the JVA amendments.
Currently, Sec. 60-250.2(o) defines ``qualified special disabled
veteran'' as ``a special disabled veteran who satisfies the requisite
skill, experience, education and other job-related requirements of the
employment position such veteran holds or desires, and who, with or
without reasonable accommodation, can perform the essential functions
of such position.'' The regulatory definition of qualified special
disabled veteran was modeled on the counterpart definition in the
Americans with Disabilities Act. The JVA amendments to VEVRAA added a
definition for the term ``qualified.'' Section 2(b)(3)(B) of JVA
provides that, with respect to an employment position, the term
``qualified'' means ``having the ability to perform the essential
functions of the position with or without reasonable accommodation for
an individual with a disability.'' Accordingly, proposed paragraph (o)
sets forth a definition for the term ``qualified disabled veteran''
that incorporates the definition of ``qualified'' contained in the
statute.
The proposal incorporates the definitions for the terms ``essential
functions,'' ``reasonable accommodation,'' and ``direct threat''
contained in paragraphs (s), (t), and (w) of existing Sec. 60-250.2,
except that the term ``special disabled veteran'' has been replaced
with ``disabled veteran.''
Proposed paragraph (q) sets forth the definition of ``recently
separated veteran.'' Under JVA, a recently separated veteran is ``any
veteran during the three-year period beginning on the date of such
veteran's discharge or release from active duty.'' The definition of
recently separated veteran in proposed paragraph (q) differs from the
definition of the term found in existing Sec. 60-250.2(q). Under Sec.
60-250.2(q), a ``recently separated veteran'' is as veteran who has
been discharged from military service for one year or less.
Proposed paragraph (r) sets forth the definition for ``Armed Forces
service medal veteran.'' JVA amended VEVRAA by adding 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 (61 FR 1209).'' 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 definition
of Armed Forces service medal veterans in the proposed rule is derived
from the JVA.
Proposed paragraph (x) sets forth a definition of ``compliance
evaluation.''
Proposed paragraph (y) incorporates 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 JVA. Under 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.''
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.
Section 60-300.5 Equal Opportunity Clause
Proposed paragraph (a) contains the equal opportunity (EO) clause
that must be included in all covered Government contracts and
subcontracts. The language of the EO clause in proposed paragraph (a)
is identical to the language of the EO clause in existing Sec. 60-
250.5(a), except that proposed paragraph (a) refers to the categories
of veterans protected under JVA. Thus, ``disabled veterans'' and
``Armed Forces service medal veterans'' are mentioned in proposed
paragraph (a), while ``special disabled veterans'' and ``veterans of
the Vietnam era'' are referenced in existing Sec. 60-250.5(a).
Proposed paragraphs (a)(2) and (a)(3) set out the contractor's
obligation to list employment openings with the appropriate local
employment service delivery system. Existing Sec. 60-250.5(a) requires
that contractors list all employment openings at an appropriate local
employment service office of the state employment security agency
wherein the opening occurs. Existing Sec. 60-250.5(a) also provides
that listing employment openings with the Department of Labor's
America's Job Bank will satisfy the requirement to list employment
openings with the local employment service office.
The JVA amendments eliminated listing employment openings solely
with America's Job Bank as an option for complying with the mandatory
job-listing requirement. JVA requires that contractors and
subcontractors list their employment openings with an ``appropriate
employment service delivery system.'' See 38 U.S.C. 4212(a)(2)(A). In
addition to listing their employment openings with an appropriate
employment service delivery system, 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, proposed paragraph (a)(2)
tracks the JVA provision, and provides that contractors must list
employment openings with an appropriate employment service delivery
system, and that contractors may also list employment openings with
one-stop career centers or America's Job Bank.
JVA also made technical and conforming amendments to VEVRAA. In
proposed paragraphs (a)(6)(i) and (ii), which set forth definitions for
terms used in the mandatory listing requirement, the term ``senior
management'' is used instead of ``top management'' to conform to a
technical amendment made by JVA. See 38 U.S.C. 4212(a)(2)(A). In
addition, the word ``Programs'' has been deleted from the paragraphs
(a)(9) and (a)(11) to accurately describe the title of the Deputy
Assistant Secretary. Paragraph (a)(11) also states that the subcontract
or purchase order threshold amount is $100,000 or more.
Subpart B--Discrimination Prohibited
Section 60-300.21 Prohibitions
This section is identical to existing Sec. 60-250.21, except that
the categories of veterans covered under JVA are referenced in the
proposal.
[[Page 3355]]
Section 60-300.22 Direct Threat Defense
This section is identical to existing Sec. 60-250.22, except that
the cross-reference is to proposed Sec. 60-300.2(w).
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.''
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 proposed Sec. 60-300.23(d).
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 proposed paragraph (d).
Subpart C--Affirmative Action Program
Section 60-300.40 Applicability of the Affirmative Action Program
Requirement
Proposed paragraph (a) sets out contract dollar and employee
thresholds for application of the affirmative action program
requirements of Subpart C. Because JVA raised the coverage threshold to
a contract of $100,000 or more, the threshold for application of the
AAP requirements must also increase. Proposed paragraph (a) provides
that the AAP requirements are applicable to ``every Government
contractor that has 50 employees and a contract of $100,000 or more.''
Thus, under the proposal, any contractor subject to VEVRAA will be
required to develop a written AAP.
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 JVA are referenced in this
section. Proposed paragraph (a) addresses the obligation of contractors
to invite ``disabled veterans'' to self-identify as a veteran covered
under VEVRAA who wishes to benefit from the contractor's affirmative
action program. Proposed paragraph (b) sets out the obligation to
invite ``recently separated veterans, other protected veterans, and
Armed Forces service medal veterans.'' In addition, the regulatory
citations in this section are to provisions in the proposed rule.
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 JVA, and
contains citations to provisions in the proposed rule.
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
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 proposed
rule.
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 JVA. The categories of veterans protected
under JVA are referenced in this section. In addition, proposed
paragraph (c) provides that OFCCP may verify whether a contractor has
complied with any reporting requirements required under regulations
promulgated by the Veterans' Employment and Training Service (VETS).
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. When VETS
issues regulations establishing reporting requirements for contracts
entered into on or after December 1, 2003, proposed paragraph (c) gives
OFCCP authority to investigate compliance with such reporting
requirements.
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 JVA. This
section refers to the categories of veterans protected under JVA.
Additionally, paragraph (b)(iii) does not contain references to
``serious employment handicaps'' and level of disability by percentage,
as JVA protects all disabled veterans. Further, the regulatory
citations in this section are to sections in the proposed rule.
Section 60-300.64 Show Cause Notice
Except for the citations to provisions in the proposed rule, this
section is identical to Sec. 60-250.64.
Section 60-300.65 Enforcement Proceedings
Except for the citations to provisions in the proposed rule, this
section is identical to Sec. 60-250.65.
Section 60-300.66 Sanctions and Penalties
Except for the citations to provisions in the proposed rule, this
section is identical to Sec. 60-250.66.
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 VEVRAA.
Subpart E--Ancillary Matters
Section 60-300.84 Responsibilities of Appropriate Employment Service
Delivery System
This section is identical to Sec. 60-250.84 in the existing VEVRAA
implementing regulations, except for the changes required to implement
the JVA amendments. Thus, this section references the categories of
veterans protected under JVA. Additionally, consistent with the
requirements of JVA, the term ``appropriate employment service delivery
system'' is used in the title and in proposed paragraphs (a) and (b).
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 JVA and citations to provisions in the proposed rule, proposed
Appendix A to part 60-300 is substantially similar to Appendix A to
part 60-250 in the existing VEVRAA regulations.
Appendix B to Part 60-300--Sample Invitation To Self-Identify
Except for the references to the categories of veterans covered
under JVA and citations to provisions in the proposed rule, proposed
Appendix B to part 60-300 is substantially similar to Appendix B to
part 60-250 in the existing VEVRAA regulations.
[[Page 3356]]
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 JVA and
citations to provisions in the proposed rule.
Regulatory Procedures
Executive Order 12866
These VEVRAA regulations have been drafted and reviewed in
accordance with Executive Order 12866, section 1(b), Principles of
Regulation. The Department has determined that this notice of proposed
rulemaking 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 proposed rule has
been reviewed by the Office of Management and Budget.
Executive Order 13132
OFCCP has reviewed this proposed rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it does not
have ``federalism implications.'' This proposed rule will 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 proposed rule, if promulgated in final, will clarify existing
requirements for Federal contractors. In view of this fact and because
the proposed rule does not substantively change existing obligations
for Federal contractors, we certify that the rule will not have a
significant economic impact on a substantial number of small business
entities. Therefore, a regulatory flexibility analysis under the
Regulatory Flexibility Act is not required.
Unfunded Mandates Reform
Executive Order 12875--This proposed rule, if promulgated in final,
will not create an unfunded Federal mandate upon any State, local, or
tribal government.
Unfunded Mandates Reform Act of 1995--This proposed rule, if
promulgated in final, will 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.
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 proposed rule would adopt 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. 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 proposed rule
would not make any changes to the currently approved information
collections. Consequently, this proposed 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 12th day of January, 2006.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the
Code of Federal Regulations, Chapter 60, Part 60-300, is proposed to be
added 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 local employment service offices.
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).
[[Page 3357]]
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 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, 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 both before
December 1, 2003, and 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 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 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.
[[Page 3358]]
(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 person who served on active
duty 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.
(r) Armed Forces service medal veteran means any veteran 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 (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;
(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).
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
(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.
[[Page 3359]]
(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.
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 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
wherein the contract is being performed, but excluding those of
independently operated corporate affiliates, with the appropriate
employment service delivery system. In addition, the
[[Page 3360]]
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 U.S. Department of Labor).
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 the contractor becomes contractually bound to the
listing provisions in paragraphs 2 and 3 of this clause, it shall
advise the state employment security agency in each state where it
has establishments of the name and location of each hiring location
in the state: Provided, That this requirement shall not apply to
state and local governmental contractors. 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 any employee: (a)
Whose primary duty consists of the management of the enterprise in
which he or she is employed or of a customarily recognized
department or subdivision thereof; and (b) who customarily and
regularly directs the work of two or more other employees therein;
and (c) who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring or firing and
as to the advancement and promotion or any other change of status of
other employees will be given particular weight; and (d) who
customarily and regularly exercises discretionary powers; and (e)
who does not devote more than 20 percent, or, in the case of an
employee of a retail or service establishment who does not devote as
much as 40 percent, of his or her hours of work in the work week to
activities which are not directly and closely related to the
performance of the work described in (a) through (d) of this
paragraph 6.ii.; Provided, that (e) of this paragraph 6.ii. shall
not apply in the case of an employee who is in sole charge of an
independent establishment or a physically separated branch
establishment, or who owns at least a 20-percent interest in the
enterprise in which he or she is employed.
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;
[[Page 3361]]
(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 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,
[[Page 3362]]
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 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.
[[Page 3363]]
(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.
(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:
[[Page 3364]]
(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.
(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,
[[Page 3365]]
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 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.
[[Page 3366]]
(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 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 any reporting
requirement 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 employment
security 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
[[Page 3367]]
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 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
[[Page 3368]]
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
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
[[Page 3369]]
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 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.
(a) Appropriate employment service delivery systems shall 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 service delivery systems pursuant to the mandatory listing
requirements of the equal opportunity clause, and shall give priority
to disabled veterans, recently separated veterans, other protected
veterans, and Armed Forces service medal veterans in making such
referrals.
(b) Appropriate employment service delivery systems shall contact
employers to solicit the job orders described in paragraph (a) of this
section. The employment service delivery systems shall provide OFCCP
upon request information pertinent to whether the contractor is in
compliance with the mandatory 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
[[Page 3370]]
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, 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. 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.
[[Page 3371]]
[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 Fed. Reg. 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.
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. 06-440 Filed 1-19-06; 8:45 am]
BILLING CODE 4510-CM-P
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