Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans

Federal RegisterApr 26, 2011

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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Parts 60-250 and 60-300

RIN 1250-AA00

Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans

AGENCY:

Office of Federal Contract Compliance Programs, Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise regulations implementing the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, which requires covered Federal contractors and subcontractors to take affirmative action in employment on behalf of specified categories of protected veterans. The proposed regulations would strengthen these affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations. They would also increase the contractor's data collection obligations, and require the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts. Rescission of 41 CFR part 60-250 as obsolete is also proposed.

DATES:

To be assured of consideration, comments must be received on or before June 27, 2011.

ADDRESSES:

You may submit comments, identified by RIN number 1250-AA00, by any of the following methods:

•

Federal eRulemaking Portal: www.regulations.gov.

Follow the instructions for submitting comments.

•

Fax:

(202) 693-1304 (for comments of six pages or less).

•

Mail:

Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 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 toll-free numbers).

All comments received, including any personal information provided, will be available for public inspection during normal business hours at Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210, or via the Internet at

http://www.regulations.gov.

Upon request, individuals who require assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this Notice of Proposed Rulemaking (NPRM) 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 NPRM in an alternate format, please contact OFCCP at the telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT:

Debra A. Carr, Director, Division of Policy, Planning and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room C-3325, Washington, DC 20210.

Telephone:

(202) 693-0102 (voice) or (202) 693-1337 (TTY).

SUPPLEMENTARY INFORMATION:

Background

Enacted in 1974, the purpose of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (Section 4212), is twofold. First, Section 4212 prohibits employment discrimination against specified categories of veterans by Federal government contractors and subcontractors. Second, it requires each covered Federal government contractor and subcontractor to take affirmative action to employ and advance in employment these veterans.

The nondiscrimination requirements and general affirmative action requirements of Section 4212 apply to all covered contractors.

See

41 CFR 60-250.5, 60-300.5. The requirement to prepare and maintain an affirmative action program, the specific obligations of which are detailed at 41 CFR 60-250.44 and 60-300.44, apply to those contractors that meet the contract amount threshold and have 50 or more employees. In the Section 4212 context, with the awarding of a Federal contract comes a number of responsibilities, including compliance with the Section 4212 anti-discrimination and anti-retaliation provisions, meaningful and effective efforts to recruit and employ veterans protected under Section 4212, creation and enforcement of personnel policies that support its affirmative action obligations, maintenance of accurate records documenting its affirmative action efforts, and providing OFCCP access to these records upon request. Failure to abide by these responsibilities may result in various sanctions, from withholding progress payments up to and including termination of contracts and debarment from receiving future contracts.

The framework articulating a contractor's responsibilities with respect to affirmative action, recruitment, and placement has remained unchanged since the Section 4212 implementing rules were first published in 1976. Meanwhile, increasing numbers of veterans are returning from tours of duty in Iraq, Afghanistan, and other places around the world, and many are faced with substantial obstacles in finding employment upon leaving the service. A March 2010 report from the Bureau of Labor Statistics found that the 2009 annual average unemployment rate for veterans 18 to 24 years old was 21.1%, compared with 16.6% for non-veterans in that age group. The unemployment rate for veterans 25 to 34 years old was 11.1%, compared with 9.8% for non-veterans in that age group. Addressing the barriers our veterans face in returning to civilian life, particularly with regard to employment, is the focus of a number of Federal efforts, such as the Work Opportunity Tax Credit established for employers who hire unemployed disabled veterans as part of the American Recovery and Reinvestment Act signed into law by President Obama in February 2009. Strengthening the implementing regulations of Section 4212, whose stated purpose is “to require Government contractors to take affirmative action to employ and advance in employment qualified covered veterans,” will be another important means by which the government can address the issue of veterans' employment.

Prior to issuing this NPRM, OFCCP conducted multiple town hall meetings, webinars, and listening sessions with individuals from the contractor community, state employment services, veterans' organizations, and other interested parties to understand those features of Section 4212's regulations that work well, those that can be improved, and possible new requirements that could help to effectuate the overall goal of increasing the employment opportunities for qualified protected veterans with Federal contractors.

Accordingly, this NPRM proposes several major changes to parts 60-250 and 60-300. The VEVRAA regulations found at 41 CFR part 60-250 generally apply to Government contracts of $25,000 or more entered into before December 1, 2003. The threshold amount for coverage is a single contract of $25,000 or more; contracts are not aggregated to reach the coverage

threshold. If a Federal contractor received a government contract of at least $50,000 prior to December 1, 2003, an AAP must be developed in accordance with the 41 CFR part 60-250 VEVRAA regulations. As explained below, some contracts that were entered into before December 1, 2003 will be subject to the regulations found at 41 CFR part 60-300.

The regulations found at 41 CFR part 60-300 apply to Government contracts entered into on or after December 1, 2003. The threshold amount for coverage and AAP threshold coverage is a single contract of $100,000 or more, entered into on or after December 1, 2003; contracts are not aggregated to reach the coverage threshold. The regulations found at 41 CFR part 60-300 also apply to modifications of otherwise covered Government contracts made on or after December 1, 2003. Consequently, a contract that was entered into before December 1, 2003, will be subject only to the part 60-300 regulations if it is modified on or after December 1, 2003 and meets the contract dollar threshold of $100,000 or more.

The detailed Section-by-Section Analysis below identifies and discusses all proposed changes in each section. Due to the extensive proposed revisions to the Section 4212 regulations, part 60-300 and the alternate part 60-250 (in the event part 60-250 is not rescinded, as discussed in the Summary section above and detailed in the part 60-250 Section-by-Section Analysis below) will be republished in their entirety in this NPRM for ease of reference. However, the Department is only accepting comments on the proposed revisions of the regulations detailed herein.

Section-by-Section Analysis

41 CFR Part 60-250

OFCCP is proposing two alternative approaches to part 60-250.

The first approach is to rescind part 60-250 in its entirety. As stated above, part 60-250 only covers those contracts of $25,000 or more entered into prior to December 1, 2003—over seven years before the publication of this NPRM—that have been unmodified since that time, or have been modified while maintaining a total contract value between $25,000 and $100,000. Federal Acquisition Regulation 17.204 states that, in general, government contract duration should not exceed five (5) years. Further, all contracts under $100,000 are subject to the simplified acquisition threshold and cannot be renewed. Thus, unless special excepted contracts exist, contracts covered exclusively by part 60-250 would have expired by December 1, 2008.

It is for these reasons that we propose rescission of part 60-250. However, to ensure that we do not inadvertently deprive protected veterans of their Section 4212 rights, we seek comment from the public as to whether any contracts that are covered by part 60-250 still exist.

In the event that contracts are discovered that do fall under part 60-250's coverage, we will not seek to rescind part 60-250; rather, we propose a second approach: A revised part 60-250 that mirrors the changes that we have proposed to part 60-300. A Section-by-Section Analysis of this alternative follows below.

Subpart A—Preliminary Matters, Equal Opportunity Clause

Section 60-250.1 Purpose, Applicability and Construction

Paragraph (a) of the current rule sets forth the scope of Section 4212 and the purpose of its implementing regulations. We propose a few minor changes to this section. First, we propose deleting the reference to the “Vietnam Era Veterans' Readjustment Assistance Act of 1974” or “VEVRAA,” and replacing it, in this section and throughout the regulation, with “Section 4212.” Referring to the operative law as “VEVRAA” is not entirely accurate, as Section 4212, where VEVRAA was initially codified, has been amended several times since VEVRAA was passed—most recently by the Jobs for Veterans Act of 2002 (JVA), which amended the categories of protected veterans and the dollar amount for contract coverage that subsequently led to the promulgation of the regulations found at part 60-300. Referring to the law as “Section 4212” clarifies that we are referring to the law as amended. This is more accurate than “VEVRAA” and should alleviate any further confusion.

Second, paragraph (a) discusses the contractor's affirmative action obligations, but does not discuss another primary element of the regulations: The prohibition of discrimination against veterans protected under Section 4212. Accordingly, the proposed regulation adds language to the first sentence of paragraph (a) to include this important element.

Additionally, the proposed rule makes two minor language changes in order to comport with some of the newly proposed definitions in § 60-250.2. First, the term “other protected veterans” is amended to read “active duty wartime or campaign badge veterans,” for the reasons detailed in the Section-by-Section Analysis of § 60-250.2. Second, all references to “covered veterans” is amended to read “protected veterans,” due to the inclusion of a definition for “protected veteran” in the proposed § 60-250.2.

Section 60-250.2 Definitions

The proposed rule incorporates the vast majority of the existing definitions contained in existing § 60-250.2 without change. However, OFCCP proposes some changes to the substance and structure of this section, as set forth below.

With regard to the structure of this section, the current rule lists the definitions in order of subject matter. However, for those who are unfamiliar with the regulations, this organizational structure makes it difficult to locate specific terms within this section. The proposed rule reorders the defined terms in alphabetical order, and then assigns each term a lettered subparagraph heading. This modified structure is proposed for ease of reference, and to facilitate citation to specific definitions. However, because of this reordering, the citation to specific terms may be different in the proposed rule than it is currently. For instance, the term “contract,” which is § 60-250.2(h) in the current regulations, is § 60-250.2(d) in the proposed regulation.

With regard to substantive changes, the proposed rule first clarifies the definitions pertaining to the classifications of veterans who are protected under part 60-250. The classifications of protected veterans in part 60-250 are those described in Section 4212 prior to the enactment of the JVA and are as follows: (1) Special disabled veterans; (2) veterans of the Vietnam era; (3) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; and (4) recently separated veterans. Currently, § 60-250.2 includes specific definitions for “special disabled veterans,” “veterans of the Vietnam era,” and “recently separated veterans,”

See

41 CFR 60-250.2(n), (p), (r). It does not contain a specific definition for “veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized.” Instead, this classification is included within the current “other protected veteran” definition.

See

41 CFR 60-250.2(q). This anomaly has caused significant confusion, as many individuals who are unfamiliar with the regulations believe that the “other

protected veteran” category is a “catch-all” that includes all veterans. To address this issue, the proposed rule replaces the “other protected veteran” definition that is contained in the current regulation with the more precise classification language “active duty wartime or campaign badge veteran” that appears in the statute. This replacement will not change the scope of coverage. Instead, individuals currently covered under the “other protected veteran” classification as defined in the current rule will still be covered, but will fall under the more accurate “active duty wartime or campaign badge veteran” classification. It should be noted that this proposed rule does not revise the VETS-100 form, which is administered by the Department's Veterans' Employment and Training Service (VETS) and requires the contractor to tabulate the number of employees and new hires in each of the component categories of protected veterans under Section 4212. The VETS-100 form currently maintains the use of “other protected veteran” classification. After the final rule pertaining to these regulations is published, OFCCP will work with VETS to conform the VETS-100 forms to the new Section 4212 regulations. DOL will provide the public with an opportunity to comment on these changes, which will not become effective until approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995.

The current rule also lacks a clear, overarching definition of “protected veteran,” under part 60-250. Although it discusses the responsibilities of a contractor to all categories of protected veterans collectively, it also enumerates each classification of protected veteran several times throughout the regulation. Accordingly, the proposed rule includes a new definition of “protected veteran,” which includes all four classifications of protected veterans separately identified and defined in 60-250.2. This new term would replace the phrase “special disabled veteran(s), veterans of the Vietnam era, recently separated veteran(s), or other protected veteran(s)” used throughout the current rule to refer to these protected veterans in the aggregate. The individual categories of protected veterans continue to be separately identified in the first paragraph of the equal opportunity clause in § 60-250.5 to permit the identification of protected veterans in the context of the contract (

see

Section-by-Section Analysis of § 60-250.5,

infra,

for further explanation).

The proposed rule also replaces the term “Deputy Assistant Secretary,” found currently at § 60-250.2(d), with “Director.” The current § 60-250.2(d) defines “Deputy Assistant Secretary” as “the Deputy Assistant Secretary for Federal Contract Compliance of the United States Department of Labor, or his or her designee.” Following the elimination of the Employment Standards Administration in November 2009, the head of OFCCP now has the title of Director. Accordingly, the proposed rule reflects this change, which will be made throughout part 60-250.

The proposed rule also adds a definition of employment service delivery system, defined in current § 60-300.2(y). Because the term “employment service delivery system” is mentioned in part 60-250, for example, in paragraph 2 of the equal opportunity clause found in § 60-250.5(a), we have added the definition for clarity.

The proposed rule also adds a definition of “linkage agreement,” now described in the OFCCP Federal Contract Compliance Manual. We propose adding a definition of “linkage agreement” to the regulations for clarity. The proposed regulation defines “

linkage agreement”

to mean an agreement between the contractor and appropriate recruitment and/or training sources. A linkage agreement is to be used by the contractor as a source of potential applicants to the covered groups in which the contractor is interested. The contractor's representative that signs the linkage agreement should be the company official responsible for the contractor's affirmative action program and/or has hiring authority.

Section 60-250.3 [Reserved]

Section 60-250.4 Coverage and Waivers

The proposed regulation replaces the term “Deputy Assistant Secretary,” found in paragraphs (b)(1), (b)(2), and (b)(3) of this section, with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.5 Equal Opportunity Clause

Paragraph (a) contains the equal opportunity (EO) clause that must be included in all covered Government contracts and subcontracts. The proposed regulation includes numerous substantive changes.

First, the proposed regulation adds additional language to subparagraph 2 of the EO clause in this section clarifying the contractor's responsibility to “list” jobs in the context of mandatory listing requirements. The mandatory job listing requirement discussed in paragraphs 2 and 3 of the EO clause mandates that the contractor list all employment openings for the duration of the contract with an “appropriate employment service delivery system,” (hereinafter “employment service”). This listing not only provides a source for veterans to access job listings, but also allows the employment service to provide priority referrals of veterans for the Federal contractor jobs listed with the employment service. Following the publication of the most recent revisions to part 60-250 regulations, questions were raised as to the manner in which a contractor must provide information to an employment service in order to satisfy the requirement. There have been many instances in which a contractor provided job listings to an employment service in a manner or format that was unusable to that employment service. In order to satisfy the listing requirement, the contractor must provide job vacancy information to the appropriate employment service

in the manner that the employment service requires

in order to include the job in their database so that they may provide priority referral of veterans. OFCCP has long interpreted the listing responsibilities of a contractor in this manner. This change clarifies OFCCP's policy.

The proposed regulation also adds a sentence to the end of paragraph 2 clarifying that, for any contractor who utilizes a privately-run job service or exchange to comply with its mandatory listing obligation, the information must be provided to the appropriate employment service in the manner that the employment service requires. This clarification is proposed for two reasons. First, contractors' use of private job listing services has increased following the elimination of the Department's America's Job Bank listing service. Second, we have received feedback from officials in state employment services that some contractors provide job listing information to these private job listing services assuming that they have then fulfilled their listing obligations, but that the private job listing services do not always provide the information in the requisite manner in order to list the job opening in its database and provide priority referral of protected veterans.

with the name and location of each of the contractor's hiring locations. The proposed regulations require that the contractor provide the state employment service with the following additional information: (1) Its status as a Federal contractor; (2) the contact information for the contractor hiring official at each location in the state; and (3) its request for priority referrals of protected veterans for job openings at all its locations within the state. This information shall be updated on an annual basis. These three additional items are proposed in light of feedback received from state employment services that there is no centralized list of Federal contractors that they can consult in order to determine if a listing employer is a Federal contractor. If the Federal contractor does not specifically identify itself as such to the state employment service and further identify the hiring official, the state employment service often will not know if it should be providing priority referrals of protected veterans as required by § 60-250.84 or who to contact. Requiring the Federal contractor to provide this additional information will facilitate the priority referral process. The proposed regulation also adds a sentence clarifying that, if the contractor uses any outside job search companies (such as a temporary employment agency) to assist in its hiring, the contractor must also provide the state employment service with the contact information for these outside job search companies. Due to the widespread use of these outside job search companies, this proposed language is included to ensure that the state employment service has the ability to contact all individuals responsible for a contractor's hiring in order to effectively carry out its obligations under § 60-250.84. Finally, the proposed regulation replaces the terms “state employment security agency,” “state agency,” and “workforce agency” found in a few instances in this paragraph, with the term “employment service delivery system.” The terms are interchangeable as used in this paragraph, and as we propose to add “employment service delivery system” to the definitions in § 60-250.2, we use it instead.

The proposed regulation adds a new paragraph 5 to the EO clause which requires the contractor to maintain records, on an annual basis, of the total number of referrals it receives from state employment services, the number of priority referrals of protected veterans it receives, and the ratio of protected veteran referrals to total referrals. This is one of a few new data collection requirements set forth in this NPRM that are proposed in order to give the contractor (as well as OFCCP, in the course of compliance evaluations) a quantifiable measure of the availability of protected veterans in the workforce. The contractor would be required to maintain these records on the number of referrals for five (5) years. We propose a five year record retention requirement for multiple reasons. First, because the proposed rule anticipates that the contractor will use the referral data in setting annual hiring benchmarks (

see

Section-by-Section discussion in 250.45,

infra

) we wanted to ensure that the contractor has sufficient historical data on the number of referrals it has received in years past to meaningfully inform the benchmarks it sets going forward. Further, because the proposed rule anticipates that the contractor will review its outreach efforts and adjust them to maximize recruitment of protected veterans (

see

Section-by-Section discussion in 250.44(f)(3),

infra

), we wanted to ensure that the contractor has sufficient historical data to recognize meaningful trends in recruitment and, subsequently, to identify effective recruitment efforts that corresponded with time periods of increased recruitment of protected veterans. If the contractor had fewer years of referral data on hand, it is less likely that the data would provide meaningful assistance to the contractor in these respects. We solicit public comment on the burden and practical utility of this requirement.

In paragraph 10 of the EO clause (currently paragraph 9; renumbered due to the newly proposed paragraph 5, above), we propose two revisions. The third sentence of this paragraph is revised to clarify the contractor's duty to provide notices of employee rights and contractor obligations in a manner that is accessible and understandable to persons with disabilities. It also revises the parenthetical at the end of the sentence, replacing the outdated suggestion of “hav[ing] the notice read to a visually disabled individual” as an accommodation with the suggestion to provide Braille, large print, or other versions that allow persons with disabilities to read the notice themselves. The proposed regulations would also add the following sentences to the end of proposed paragraph 10 (current paragraph 9) of the EO clause: “With respect to employees who do not work at a physical location of the contractor, a contractor will satisfy its posting obligations by posting such notices in an electronic format, provided that the contractor provides computers that can access the electronic posting to such employees, or the contractor has actual knowledge that such employees are otherwise able to access the electronically posted notices. Electronic notices for employees must be posted in a conspicuous location and format on the company's intranet or sent by electronic mail to employees. An electronic posting must be used by the contractor to notify job applicants of their rights if the contractor utilizes an electronic application process. Such electronic applicant notice must be conspicuously stored with, or as part of, the electronic application.” The addition of these sentences is in response to the increased use of telecommuting and other work arrangements that do not include a physical office setting, as well as Internet-based application processes in which applicants never enter a contractor's physical office. These revisions therefore would permit equivalent access to the required notices for these employees and applicants.

For paragraph 11, which refers to the contractor's obligation to notify labor organizations or other worker representatives about its obligations under Section 4212, we propose adding language clarifying that these obligations include non-discrimination, in addition to affirmative action. The current paragraph 11 does not specifically mention the contractor's non-discrimination obligations.

The proposed regulations add a new paragraph 13 to the EO clause which would require the contractor to state and thereby affirm in solicitations and advertisements that it is an equal employment opportunity employer of veterans protected under Section 4212. A comparable clause exists in the equal opportunity clause of the Executive Order 11246 regulations,

see

41 CFR 60-1.4(a)(2), describing the protected classes under that Order. This proposed addition ensures consistency between the regulations and aids in communicating the contractor's EEO responsibilities to job seekers.

The proposed regulations amend paragraphs (d) and (e) of this section to require that the entire equal opportunity clause be included verbatim in Federal contracts. This is to ensure that the contractor and subcontractor read and understand the language in this clause. Feedback from town hall meetings and webinars conducted by OFCCP prior to the publication of this proposed rule indicated that some contractors, and especially subcontractors, are not aware of their EO Clause responsibilities. In the case of subcontractors, they often rely on the prime contractors to inform them of their nondiscrimination and

affirmative action program obligations. If the EO Clause is not written in full, subcontractors are disadvantaged and often unaware of their statutory obligations until audited by OFCCP. Particularly given the emphasis the administration and Congress have placed on veterans' employment issues, we believe it is important to take whatever steps will inform contractors and subcontractors of the obligations under the EO Clause. OFCCP solicits public comment on this proposal and any other steps that would increase the contractor community's awareness of its obligations.

The proposed regulation also replaces the term “Deputy Assistant Secretary,” found in paragraph (f) of this section and in paragraphs 9 and 11 of the EO clause, with the term “Director,” for the reasons set forth in the discussion of § 60-250.2. It also replaces the phrase “special disabled veteran(s), veteran(s) of the Vietnam era, recently separated veteran(s), or other protected veteran(s)” found in the second sentence of Paragraph 1 and in Paragraph 9 of the EO clause, with the term “protected veteran,” for the reasons set forth in the discussion of § 60-250.2. This phrase remains in the first sentence of Paragraph 1 (with “active duty wartime or campaign badge veteran” replacing “other protected veteran,” as discussed in § 60-250.2,

supra

) of the EO clause so it is clear to those reading the clause independently from the rest of the regulation precisely which classifications of veterans are protected by this part of the Section 4212 regulations. Additionally, to ensure that the contractor is aware of the appropriate definitions, we propose adding a footnote to the title of the EO Clause stating explicitly that the definitions set forth in 41 CFR 60-250.2 apply to the EO Clause and are incorporated by reference. Finally, all references to “VEVRAA” are replaced with the term “Section 4212,” for the reasons set forth in the discussion of § 60-250.1.

Subpart B—Discrimination Prohibited

Section 60-250.21 Prohibitions

This section of the rule defines and addresses prohibited discriminatory conduct under Section 4212. The proposed rule includes an additional clause at the end of paragraph (f)(3), qualifying that an individual who rejects a reasonable accommodation made by the contractor may still be considered a qualified disabled veteran if the individual subsequently provides and/or pays for a reasonable accommodation. For instance, if a veteran knows that a certain piece of equipment that he or she already owns will allow him or her to perform the functions of the job, and that equipment would represent an undue burden for the contractor to provide, the veteran would be able to provide his or her own equipment and still be considered a qualified disabled veteran. We propose inserting this language to ensure consistency with the requirement in paragraph 4 of Appendix A to the proposed rule, which requires that individuals be allowed to pay for or provide their own accommodation if providing the accommodation for the employee would represent an undue burden to the contractor.

The proposed revisions also include minor language changes, replacing the phrase “special disabled veteran(s), veteran(s) of the Vietnam era, recently separated veteran(s), or other protected veteran(s)” found in paragraphs (a), (b), (c)(1), (d)(1), (e), (g)(1), and (i) with the term “protected veteran,” for the reasons set forth in the discussion of § 60-250.2, above.

Section 60-250.22 Direct Threat Defense

The proposed revisions change “§ 60-250.2(w)” in the parenthetical at the end of this section to “§ 60-250.2(f),” in light of restructuring the Definitions section in alphabetical order, as discussed in § 60-250.2, above.

Section 60-250.24 Drugs and alcohol

We propose a correction to paragraph (b)(3) of this section, to refer to § 60-250.23(d)(2) instead of (c).

Subpart C—Affirmative Action Program

Section 60-250.40 Applicability of the Affirmative Action Program Requirement

This section sets forth which contractors are required to maintain an affirmative action program, and the general timing requirements for its creation and submission to OFCCP. We propose a minor clarification to paragraph (c) of this section, specifying that the affirmative action program shall be reviewed and updated annually “by the official designated by the contractor pursuant to § 60-250.44(i).” While this is the intent of the existing language, the proposal clarifies this intention d ensures that company officials who are knowledgeable of the contractor's affirmative action activities and obligations are reviewing the program.

Section 60-250.41 Availability of Affirmative Action Program

This section sets forth the manner by which the contractor must make its affirmative action programs available to employees for inspection, which includes that the location and hours during which the program may be obtained. The proposed regulation adds a sentence at the end of this section requiring that, in instances where the contractor has employees who do not work at the contractor's physical establishment, the contractor shall inform these employees about the availability of the affirmative action program by means other than a posting at its establishment. This addition is proposed in light of the increased use of telecommuting and other flexible workplace arrangements.

Section 60-250.42 Invitation to Self-identify

The proposed revisions of this section make significant, substantive changes to the contractor's responsibilities and the process through which applicants are invited to self-identify as a veteran protected under the part 60-250 regulations, particularly those set forth in paragraphs (a) and (b). As described more fully below, these changes are proposed in order to collect enhanced data pertaining to protected veterans, which will allow the contractor and OFCCP to identify and monitor the contractor's employment practices with respect to protected veterans.

The current regulation requires the contractor to invite applicants, who are special disabled veterans as defined in 60-250.2, to self-identify only after making an offer of employment, subject to two exceptions.

See

§ 60-250.42(a). For all other veterans protected by part 60-250, the current regulation requires the contractor to invite such applicants to self-identify “before they begin [their] employment duties.”

See

§ 60-250.42(b).

The two exceptions to the prohibition on inviting special disabled veterans to self-identify pre-offer contained in 41 CFR 250.42(a) are not proposed to change. The exceptions permit a contractor to invite special disabled veterans to self-identify prior to making a job offer when: (1) The invitation is made while the contractor actually is undertaking affirmative action for special 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 special disabled veterans. These two exceptions are identical to the exceptions to the prohibition on pre-offer disability-

related inquiries contained in the implementing regulations for Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503).

See

41 CFR 60-741.42. Consequently, under existing Section 4212 regulations, the contractor is permitted, although not required, to create employment programs targeting special disabled veterans and inviting applicants to identify whether they are eligible for the program pre-offer. OFCCP is not proposing a change in this provision.

The proposed change requires the contractor to invite all applicants to self-identify as a “protected veteran” prior to the offer of employment. This proposed change would invite applicants to self-identify as a “protected veteran” at the pre-offer stage; it would not seek the specific protected classification of protected veteran (special disabled veteran, veteran of the Vietnam era, recently separated veteran, or active duty wartime or campaign badge veteran). The pre-offer invitation would not require protected veteran applicants to disclose their status as a protected veteran if they chose not to (

see

the proposed Sample Invitation to Self-Identify in Appendix B,

infra

). This new pre-offer self-identification step also would include the requirement, currently stated in paragraph (e) of this section, that the contractor maintain the pre-offer self-identification data and supply it to OFCCP upon request. Incorporating self-identification into the application process would allow the contractor, and subsequently OFCCP, to collect valuable, targeted data on the number of protected veterans who apply for Federal contractor positions. This data would enable the contractor and OFCCP to measure the effectiveness of the contractor's recruitment and affirmative action efforts over time. Moreover, the contractor and OFCCP will be better equipped to improve and refine successful and effective recruiting mechanisms, thereby increasing the number of applications from protected veterans. Additionally, this data will enable OFCCP to identify and promote successful recruitment and affirmative efforts taken by the contractor community.

Through the various outreach efforts to stakeholders OFCCP has conducted in advance of this NPRM, an issue has been raised regarding the implementing regulations of Title I of the ADA and Section 503, which limit the extent to which employers may inquire about disabilities prior to an offer of employment.

See

29 CFR 1630.13, 1630.14; 41 CFR 60-741.42. The concern is that requiring the contractor to invite applicants to self-identify as a protected veteran would violate the general prohibition against pre-offer disability-related inquiries because some protected veterans will be special disabled veterans. This concern is misplaced, as the ADA and Section 503 regulations permit the contractor to conduct a pre-offer inquiry into disability status if it is `made pursuant to a Federal, state or local law requiring affirmative action for individuals with disabilities,' such as Section 4212 or Section 503. Id.

However, while it would be legally permissible to do so, OFCCP is not proposing that the pre-offer self-identification identify the specific category of protected veteran for three primary reasons. First, given that the overall population of protected veterans is already relatively small, dividing the pool of protected veterans into smaller component classifications would tend to reduce the ability of the contractor to engage in meaningful data analysis of applicants, such as that proposed in § 60-250.44(h) and (k). Second, a protected veteran may fall into several protected categories, which could create unnecessary complexity to data analysis. For example, the same individual could be a protected veteran because he or she is a special disabled veteran and a veteran of the Vietnam era. Finally, at the pre-offer stage under the proposed rule the contractor's obligations would be the same with respect to each category of protected veteran, thus there is no apparent benefit to knowing the specific category of protected veteran to which an applicant belongs.

In addition to the pre-employment self-identification provisions in § 60-250.42(a) of the proposed rule, § 60-250.42(b) of the proposed rule also requires the contractor to invite individuals, after the offer of employment is extended, to self-identify as a member of one or more of the four classifications of protected veterans under part 60-250. Thus, post-offer identification will enable the contractor to capture refined data pertaining to each classification of protected veterans, as set forth in the VETS-100 form, which the contractor is required to maintain and submit. As is currently the case, the post-offer self-identification as a special disabled veteran would not require applicants to disclose the specific nature of their disability.

We propose to revise paragraph (c) of this section by deleting the second sentence of the parenthetical at the end of the paragraph. This sentence described the format of and rationale behind the current Appendix B, which has been substantially amended in light of the new self-identification procedures proposed herein. For the same reasons, we propose revising paragraph (d) of this section to reflect the newly proposed self-identification process in which applicants will only identify themselves as special disabled veterans specifically after an offer of employment is made. Further, we propose revising paragraph (d) to require, rather than suggest, that the contractor seek the advice of the applicant regarding accommodation. Requiring this of the contractor will help initiate a robust interactive and collaborative process between the contractor and the employee or applicant to identify effective accommodations that will facilitate a special disabled veteran's ability to perform the job. While the purpose of this requirement is to promote agreement between the contractor and employee or applicant regarding accommodations to be used, this proposed change would not require that, in the event that multiple reasonable accommodations exist, the contractor must utilize the reasonable accommodation preferred by the employee or applicant.

We also propose replacing the term “appropriate accommodation” in paragraph (d) with “reasonable accommodation.” We have always interpreted “appropriate accommodation” in this paragraph as substantively identical to the term “reasonable accommodation.” However, “reasonable accommodation” is already defined in these regulations and has a more broadly used and accepted legal definition, we propose using it here to avoid any confusion. This language change does not alter the contractor's existing obligations.

Section 60-250.43 Affirmative Action Policy

This section outlines the contractor's non-discrimination and affirmative action obligations under Section 4212. We propose two minor revisions to this section.

First, we propose replacing the phrase “because of status as a” in this section to “against,” in order to clarify that the non-discrimination requirements of Section 4212 are limited to protected veterans and that reverse discrimination claims may not be brought by individuals who do not fall under one of the categories of veterans protected by part 60-250. Second, we propose replacing the phrase “special disabled veteran(s), veteran(s) of the Vietnam era, recently separated veteran(s), or other protected veteran(s),” used twice in this section, with the term “protected

veteran,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.44 Required Contents of Affirmative Action Programs

This section details the elements that the contractor's affirmative action programs must contain. These existing elements include: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment-free workplace for protected veterans; (6) external dissemination of the contractor's affirmative action policy, as well as outreach and recruitment efforts; (7) the internal dissemination of the contractor's affirmative action policy to all of its employees; (8) the development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training for all employees regarding the implementation of the affirmative action program.

The first substantive proposed revisions to this section focus on the contractor's policy statement as set forth in paragraph (a). The proposed regulation revises the second sentence to clarify the contractor's duty to provide notices of employee rights and contractor obligations in a manner that is accessible and understandable to persons with disabilities. It also revises the parenthetical at the end of the sentence, replacing the outdated suggestion of “hav[ing] the notice read to a visually disabled individual” as an accommodation with the suggestion to provide Braille, large print, or other versions that allow persons with disabilities to read the notice themselves. The proposed regulation also revises the third sentence of paragraph (a) regarding the content of the policy statement, replacing the inclusion of the “chief executive officer's attitude on the subject matter” with “chief executive officer's support for the affirmative action program.” This proposed change is made to clarify the intent of including a statement from the contractor's CEO in the affirmative action policy statement, which is to signal to the contractor's employees that support for the affirmative action program goes to the very top of the contractor's organization.

In paragraph (b), the proposed rule requires that the contractor must review its personnel processes on at least an annual basis to ensure that its obligations are being met. The current rule requires that the contractor review these processes “periodically.” This standard is vague and subject to confusion. Indeed, OFCCP's efforts to enforce this requirement in recent years have been complicated by contractors' various, subjective interpretations of what constitutes “periodic” review. This proposal sets forth a clear, measurable, and uniform standard that will be easily understood by the contractor and more easily enforced by OFCCP.

Further, the proposed revisions mandate certain specific steps that the contractor must take, at a minimum, in the review of its personnel processes. These specific steps are those currently set forth in Appendix C to the regulation. Appendix C currently suggests that the contractor: (1) Identify the vacancies and training programs for which protected veteran applicants and employees were considered; (2), provide a statement of reasons explaining the circumstances for rejecting protected veterans for vacancies and training programs and a description of considered accommodations; and (3) describe the nature and type of accommodations for special disabled veterans who were selected for hire, promotion, or training programs. Previously, these steps were recommended as an appropriate set of procedures. OFCCP's enforcement efforts have found that many contractors do not follow these recommended steps, and that the documentation contractors maintain of the steps that they do take are often not conducive to a meaningful review by the contractor or OFCCP, particularly in the event of employee/applicant complaints. Such a meaningful review has always been the goal of the requirements in paragraph (b), as it ensures that the contractor remains aware of and actively engages in its overall affirmative action obligations toward protected veterans. The proactive approach set forth in the current Appendix C would provide greater transparency between the contractor, its applicants/employees, and OFCCP as to the reasons for the contractor's personnel actions. Requiring that the contractor record the specific reasons for their personnel actions, and making them available to the employee or applicant upon request, would also aid them in clearly explaining their personnel actions to applicants and employees, which could subsequently reduce the number of complaints filed against contractors. Thus, we propose requiring the contractor to take the steps outlined currently in Appendix C (which are incorporated into paragraph (b) in the proposed rule), and encourage the contractor to undertake any additional appropriate procedures to satisfy its affirmative action obligations.

The proposed paragraph (c) clarifies that all physical and mental job qualification standards must be reviewed and updated, as necessary, on an annual basis. As with paragraph (b), the current rule's requirement that the contractor review these standards “periodically” is vague and subject to confusion. OFCCP has concluded that contractors inconsistently interpreted what constitutes “periodic” review. The proposed change provides a clear, measurable, and uniform standard.

The proposed paragraph (c)(1) adds language requiring the contractor to document the results of its annual review of physical and mental job qualification standards. The regulation has long required this review to ensure that job qualification standards which tend to screen out disabled veterans are job-related and consistent with business necessity. The proposed change would merely require that the contractor document the review it has already been required to perform. It is anticipated that this documentation would list the physical and mental job qualifications for the job openings during a given AAP year—which should already be available from the contractor's job postings—and provide an explanation as to why each requirement is related to the job to which it corresponds. Documenting this review will ensure that the contractor critically analyzes its job requirements and proactively eliminates those that are not job-related. It will also allow OFCCP to conduct audits and investigations in a more thorough and efficient manner.

Paragraph (c)(3) currently provides that, as a defense to a claim by an individual that certain mental or physical qualifications are not job-related and consistent with business necessity, the contractor may assert that the individual poses a “direct threat” to the health or safety of the individual or others in the workplace. The definition of “direct threat” in these regulations spells out the criteria that the contractor must consider in determining whether a “direct threat” exists. The proposed paragraph (c)(3) would require the contractor to contemporaneously create a written statement of reasons supporting its belief that a direct threat exists, tracking the criteria set forth in the “direct threat” definition in these regulations, and maintain the written statement as set forth in the recordkeeping requirement in § 60-250.80. Once again, this is to ensure that

the contractor's “direct threat” analysis—which is already required under these regulations, as well as regulations to Section 503 of the Rehabilitation Act and the Americans with Disabilities Act—is well-reasoned and available for review by OFCCP.

Finally, for both the proposed documenting requirements in paragraphs (c)(1) and (c)(3), the proposed regulation would require that the contractor treat the created documents as confidential medical records in accordance with § 60-250.23(d).

Perhaps the most significant substantive changes in the proposed rule address the scope of the contractor's recruitment efforts and the dissemination of its affirmative action policies described in paragraphs (f) and (g) of this section. While these two paragraphs generally require that the contractor engage in recruitment and disseminate its policies, the current rule recommends rather than requires the specific methods for carrying out these obligations.

The current paragraph (f) suggests a number of outreach and recruitment efforts that the contractor can undertake in order to increase the employment opportunities for protected veterans.

See

41 CFR 60-250.44(f)(1). The proposed paragraph (f) requires that the contractor engage in a minimum number of outreach and recruitment efforts as described in proposed paragraph (f)(1). The proposed paragraph (f) also includes a list of additional outreach and recruitment efforts that are suggested (proposed paragraph (f)(2)), a new requirement that the contractor conduct self-assessments of their outreach and recruitment efforts (proposed paragraph (f)(3)), and a clarification of the contractor's recordkeeping obligation with regard to its outreach and recruitment efforts (proposed paragraph (f)(4)).

In the proposed paragraph (f)(1), the contractor would be required to engage in three outreach and recruitment efforts. First, the contractor would be required to enter into linkage agreements and establish ongoing relationships with the Local Veterans' Employment Representative in the local employment service office nearest the contractor's establishment. The statute already requires contractors and subcontractors to send their job listings to the Local Veterans' Employment Representative in the local or state employment service office for listing and priority referral of protected veterans. The Local Veterans' Employment Representative is an existing government resource provided for veterans to help them find employment.

Second, the contractor would be required to enter into a linkage agreement with at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities. The listed organizations and agencies are those that are listed in the current paragraph (f)(1), with one addition: The Department of Defense Transition Assistance Program (TAP), or any subsequent program that replaces TAP. This program is administered in part by the Department of Labor's Veterans' Employment and Training Service (VETS) in Family Services Offices or similar offices at military bases. (

See http://www.dol.gov/vets/programs/tap/tap_fs.htm

) According to the Department of Defense, there are 249 TAP offices in installations around the United States, and another 16 TAP offices located in installations abroad. The TAP was designed to “smooth the transition of military personnel and family members leaving active duty.” The TAP includes employment workshops with the Department of Labor, and offers individualized employment assistance and training. It is currently required for all those serving in the Marine Corps, and is generally encouraged and supported by the other branches of the military. Accordingly, it provides an excellent existing source for identifying qualified protected veterans. TAP is a validated multi-government agency program that assists separating veterans in finding employment, from resume writing to interview techniques to dressing for success. OFCCP is aware, however, that not all contractors are located near a military base or similar facility which provides TAP; therefore, a contractor may select another organization or agency from the list that is more conducive to its recruiting efforts.

Third, paragraph (f)(1) would also require that the contractor consult the Employer Resources section of the National Resource Directory, a partnership with an online collaboration (

http://www.nationalresourcedirectory.gov/employment/job_services_and_employment_resources

) among the Departments of Labor, Defense, and Veterans Affairs. New contractors and subcontractors often inquire about how they can find qualified protected veterans to comply with their AAP obligations. The National Resource Directory is a leading government Web site that provides prospective employers of veterans access to veterans' service organizations, existing job banks of veterans seeking employment, and other resources at the national, state and local levels. The NPRM gives contractors and subcontractors the flexibility to select any organization on the National Resource Directory for outreach and recruit purposes. Since this Web site is a great nationwide resource, any contractor would likely find it useful in fulfilling its affirmative action obligations, such as recruiting veterans. The contractor would be required to establish a linkage agreement with at least one of the many veterans' service organizations listed on the site (excluding organizations described in the previous paragraph) to facilitate referral of qualified protected veterans, as well as other related advice and technical assistance. We believe that these first two efforts that the proposed rule requires would assist the contractor in establishing a baseline level of contact with veteran and employment-related organizations, while providing the contractor with the flexibility to establish linkage agreements with organizations that are most tailored to the contractor's hiring needs. Finally, the proposed paragraph (f)(1) would also require that the contractor send written notification of company policy related to affirmative action efforts to its subcontractors, including subcontracting vendors and suppliers, in order to request appropriate action on their parts and to publicize the contractor's commitment to affirmative action on behalf of protected veterans. While the proposed regulations would not require that the contractor send written notification to vendors and suppliers who are not subcontractors as defined by these regulations, such disclosure remains an encouraged activity, just as it is under the current regulation.

See

41 CFR 60-250.44(f)(6).

We believe that the required linkage agreements we propose in paragraph (f)(1) will greatly facilitate the contractor's efforts to attract qualified protected veteran applicants. We encourage comments from stakeholders regarding this proposal, particularly if stakeholders have information on recruitment sources not included in this proposal that might increase employment of protected veterans.

incorporating recruitment efforts for protected veterans at educational institutions; (3) considering applicants who are known protected veterans for all available positions when the position applied for is unavailable; and (4) any other positive steps the contractor believes are necessary to attract qualified protected veterans, including contacts with any local veteran-related organizations.

Paragraph (f)(3) of the proposed rule would require the contractor, on an annual basis, to review the outreach and recruitment efforts it has undertaken over the previous twelve months and evaluate their effectiveness in identifying and recruiting qualified protected veterans, and document its review. Contractors that do not proactively monitor their outreach and recruitment efforts often lose opportunities to consider and hire qualified protected veterans for employment. This requirement will allow the contractor to look at its measurable accomplishments and reconsider unproductive methods. We believe requiring this on an annual basis strikes the proper balance between ensuring that adjustments to recruitment efforts are made on a timely basis if needed, while also ensuring that the contractor has enough data on existing recruitment efforts to be able to determine if adjustments need to be made.

We recognize that the “effectiveness” of an outreach or recruitment effort is not easily defined, and may include a number of factors that are unique to a particular contractor establishment. Generally speaking, a review of the efficacy of a contractor's efforts should include the number of protected veteran candidates each effort identifies. Recognizing that other unique and intangible characteristics may contribute to the assessment of the “effectiveness” of a given effort, the proposed regulation allows the contractor some flexibility in making this assessment. However, the proposed regulation requires that the contractor consider the numbers of protected veteran referrals, applicants, and hires for the current years and two previous years as criteria in evaluating its efforts, and document all other criteria that it uses to assess the effectiveness of its efforts, so that OFCCP compliance officers are able to understand clearly the rationale behind the contractor's self-assessment. The contractor's conclusion as to the effectiveness of its outreach must be reasonable as determined by OFCCP in light of these regulations. The primary indicator of effectiveness is whether qualified veterans have been hired. Further, should the contractor determine that its efforts were not effective, the proposed rule requires the contractor to identify and implement one or more of the alternative efforts listed in proposed paragraphs (f)(1) and (f)(2) in order to fulfill its obligations. The general purpose of this self-assessment is to ensure that the contractor think critically about its recruitment and outreach efforts, identify and ascertain successful recruiting efforts, and modify its efforts to ensure that its obligations are being met.

Paragraph (f)(4) of the proposed rule would require that the contractor document its linkage agreements and the activities it undertakes in order to comply with paragraph (f), and retain these documents for a period of five (5) years. This requirement will enable the contractor and OFCCP to more effectively review recruitment and outreach efforts undertaken to ensure that the affirmative action obligations of paragraph (f) are satisfied.

Paragraph (g) of this section requires that the contractor develop internal procedures to communicate to its employees its obligation to engage in affirmative action efforts. The current paragraph (g)(2) contains several suggested methods by which the contractor may accomplish this. The proposed rule would mandate the following practices: (1) Include its affirmative action policy in its policy manual; (2) inform all applicants and employees of its affirmative action obligations; (3) conduct meetings with executive, management, and supervisory personnel to explain the intent of the policy and responsibility for its implementation; and (4) discuss the policy in orientation and management training programs. In addition, if the contractor is party to a collective bargaining agreement, then the proposed rule would require the contractor to meet with union officials and representatives to inform them about the policy and seek their cooperation. Other suggested elements in the current paragraph (g)(2) remain in the proposed rule at newly created paragraph (g)(3) as suggested additional dissemination efforts the contractor can make. This includes suggesting that the contractor use company newspapers, magazines, annual reports, handbooks, or other media to publicize its affirmative action obligations and feature protected veterans and their accomplishments.

See

current regulation at 41 CFR 60-250.44(g)(2)(iii), 60-250.44(g)(2)(vii); 60-250.44(g)(2)(viii).

As for the requirement to inform all applicants and employees of its affirmative action obligations (item (2) in the preceding paragraph), the proposed regulation would require that the contractor hold meetings with its employees at least once per year to discuss the contractor's affirmative action policies and to explain contractor and individual employee responsibilities under these policies. These could be traditional in-person meetings, or meetings facilitated by technology such as webinars or videoconferencing. It would also require that the contractor describe individual employee opportunities for advancement in furtherance of the contractor's affirmative action plan. Frequent establishment-wide training on affirmative action issues will facilitate a greater understanding of the purpose of the affirmative action plan among employees. This training will also enhance the visibility and importance of affirmative action to the recruitment, hiring, and advancement of protected veterans. Finally, a newly proposed paragraph (g)(4) would require the contractor to document its activities in order to comply with paragraph (g), and retain these documents as records subject to the recordkeeping requirements of § 60-250.80. This will allow for a more effective review by the contractor and OFCCP to ensure that the affirmative action obligations of paragraph (g) are being met.

Paragraph (h) of this section details the contractor's responsibilities in designing and implementing an audit and reporting system for its affirmative action program, including the specific computations and comparisons that are part of the audit. The proposed regulations add a new paragraph (h)(1)(vi) requiring the contractor to document the actions taken to comply with paragraphs (h)(1)(i)-(v), and maintain such documents as records subject to the recordkeeping requirements of § 60-250.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met.

The only substantive proposed change in paragraph (i), requires that the identity of the officials responsible for a contractor's affirmative action activities must appear on all internal and external communications regarding the contractor's affirmative action program. In the current regulation, this disclosure is only suggested. Requiring this disclosure will increase transparency, making it clear to applicants, employees, OFCCP, and other interested parties which individual(s) are

responsible for the implementation of the contractor's affirmative action program.

Paragraph (j) requires that the contractor train those individuals who implement the personnel decisions pursuant to its affirmative action program. The proposed regulation specifies the topics that shall be included in the contractor's training: The benefits of employing protected veterans; appropriate sensitivity toward protected veteran recruits, applicants and employees; and the legal responsibilities of the contractor and its agents regarding protected veterans generally and special disabled veterans specifically, such as reasonable accommodation for qualified disabled veterans and the related rights and responsibilities of the contractor and protected veterans. Training on these issues will facilitate a greater understanding of the purpose of the affirmative action plan among decision makers for the contractor, and will enhance the visibility and importance of affirmative action to the recruitment, hiring, and advancement of protected veterans. The proposed regulation would also require that the contractor record which of its personnel receive this training, when they receive it, and the person(s) who administer(s) the training, and maintain these records, along with all written or electronic training materials used, in accordance with the recordkeeping requirements of § 60-250.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met.

The proposed regulation adds a new paragraph (k) requiring that the contractor maintain several quantitative measurements and comparisons regarding protected veterans who have been referred by state employment services, have applied for positions with the contractor, and/or have been hired by the contractor. The impetus behind this new section is that, as stated in the discussion of § 60-250.44(a), no structured data regarding the number of protected veterans who are referred for or apply for jobs with Federal contractors is currently maintained. This absence of data makes it nearly impossible for the contractor and OFCCP to perform even rudimentary evaluations of the availability of protected veterans in the workforce, or to make any quantitative assessments of how effective contractor outreach and recruitment efforts have been in attracting protected veteran candidates. The proposed regulations provide for the collection of referral data (

see

§ 60-250.5, paragraph 5 of the EO clause), as well as applicant data (

see

§ 60-250.42(a)). Hiring data is already maintained by the contractor in its VETS-100 forms, a requirement which is carried over into this proposal. Accordingly, paragraph (k) requires that the contractor document and maintain the following information: (1) For referral data, the total number of referrals, the number of priority referrals of protected veterans, and the “referral ratio” of referred protected veterans to total referrals; (2) for applicant data, the total number of applicants for employment, the number of applicants who are known protected veterans, and the “applicant ratio” of protected veteran applicants to total applicants; (3) for hiring data, the total number of people hired, the number of protected veterans hired, and the “hiring ratio” of protected veteran hires to total hires; and (4) the total number of job openings, the number of jobs that are filled, and the “job fill ratio” of job openings to job openings filled. The proposed regulation requires that the contractor must document these measurements on an annual basis, and maintain records of them for five (5) years. These basic measurements will provide the contractor and OFCCP with important information that does not currently exist. This will aid the contractor in evaluating and tailoring its recruitment and outreach efforts and in establishing hiring benchmarks as set forth in the discussion of the proposed § 60-250.45,

infra.

Finally, the proposed regulation replaces the phrase “special disabled veteran(s), veteran(s) of the Vietnam era, recently separated veteran(s), or other protected veteran(s),” with the term “protected veteran” in paragraphs (a), (a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), (g)(2)(vii), and (h)(1)(iv), for the reasons stated in the discussion of § 60-250.2. The proposed regulation also replaces the terms “Vietnam Era Veterans' Readjustment Assistance Act of 1974” or “VEVRAA” with the term “Section 4212” throughout this section, for the reasons stated in the discussion of § 60-250.1.

Section 60-250.45 Contractor-Established Benchmarks for Hiring

The proposed regulation would require for the first time that the contractor establish annual hiring benchmarks, expressed as the percentage of total hires who are protected veterans that the contractor seeks to hire in the following year. As stated in paragraph (a) of the proposed rule and set forth more fully below, these hiring benchmarks would be established by the contractor using existing data on veteran availability, while also allowing the contractor to take into account other factors unique to its establishment that would tend to affect the availability determination.

While the Bureau of Labor Statistics (BLS) and Census Bureau (Census) do not tabulate data pertaining to the specific classifications of protected veterans under part 60-250, there are other existing data sources that are instructive. For instance, BLS tabulates statewide data on the number of veterans in the civilian labor force and the unemployment rate of veterans in the labor force, and national data on the number of veterans with a service-related disability. The Department's Veterans Employment and Training Service collects statewide data over a rolling, four quarter period of individuals who “participated” in the state employment services. The breakdown of this data includes the number of overall veterans, the number of overall veterans who are identified as being unemployed, and the number of veterans in some, although not all, of the specific categories of veterans protected by part 60-250.

Accordingly, the proposed rule would require that the contractor consult a number of different sources of information, which will be made easily available to the contractor, in establishing hiring benchmarks. As set forth in the proposed paragraph (b), these sources would include: (1) The percentage of veterans in the civilian labor force, tabulated by BLS and which will be published on OFCCP's Web site; (2) the raw number of veterans who were participants in the state employment service in the State where the contractor's establishment is located, which will also be published on OFCCP's Web site; (3) the referral ratio, applicant ratio, and hiring ratios as expressed in the proposed § 60-250.44(k); (4) the contractor's recent assessments of the effectiveness of its external outreach and recruitment efforts, as expressed in the proposed § 60-250.44(f)(3); and (5) any other factors, including but not limited to the nature of the contractor's job openings and/or its location, which would tend to affect the availability of qualified protected veterans. The contractor would be required to consider and document each of these factors,

see

benchmarks that will allow the contractor to measure its success in recruiting and employing protected veterans. However, we seek input from stakeholders on this proposal and any additional measures that would make these benchmarks more meaningful, as well as any other measures that would otherwise increase employment opportunities for veterans.

Subpart D—General Enforcement and Complaint Procedures

Section 60-250.60 Compliance Evaluations

This section details the form and scope of the compliance evaluations of the contractor's affirmative action programs conducted by OFCCP. The proposed rule contains several changes to this section.

First, the proposal adds a sentence to paragraph (a)(1)(i) regarding the temporal scope of desk audits performed by OFCCP. This language merely clarifies OFCCP's long-standing policy that, in order to fully investigate and analyze the scope of potential violations, OFCCP may need to examine information after the date of the scheduling letter in order to determine, for instance, if violations are continuing or have been remedied. The language does not represent a change in policy or new contractor obligations.

Second, the current paragraph (a)(2) relating to the off-site review of records incorrectly refers to the “requirements of the Executive Order and its regulations;” the proposed rule corrects this to read the “requirements of Section 4212 and its regulations.”

Third, the proposed rule contains a change to the nature of document production under paragraph (a)(3). This paragraph, which specifies a “compliance check” as an investigative procedure OFCCP can use to monitor a contractor's recordkeeping, currently states that the contractor may provide relevant documents either on-site or off-site “at the contractor's option.” The proposed regulation eliminates this quoted clause and provides that OFCCP may request that the documents to be provided either on-site or off-site.

Fourth, the proposed rule contains a minor change to the scope of “focused reviews” as set forth in paragraph (a)(4). Focused reviews allow OFCCP to target one or more components of a contractor's organization or employment practices, rather than conducting a more comprehensive compliance review of an entire organization. Currently, the regulations provide that these focused reviews are “on-site,” meaning they must take place at the contractor's place of business. The increased use of electronic records that are easily accessible from multiple locations affords compliance officers greater flexibility in conducting focused reviews. Therefore, we propose to delete the word “on-site” from this section, which will allow compliance officers to conduct reviews of relevant materials at any appropriate location.

Fifth, the proposed rule contains a new paragraph (d) which details a new procedure for pre-award compliance evaluation under Section 4212. This proposed rule is based on the pre-award compliance procedure contained in the Executive Order regulations (

see

41 CFR 60-1.20(d)).

Section 60-250.61 Complaint Procedures

This section outlines the manner in which applicants or employees who are protected veterans may file complaints alleging violations of Section 4212 or its regulations.

The proposed rule replaces the term “Deputy Assistant Secretary” with the term “Director” in paragraphs (e)(1), (e)(2), and (e)(3), for the reasons set forth in the discussion of § 60-250.2. The proposed regulation also replaces the term “state employment security agency” in paragraph (a) with the term “employment service delivery system,” for the reasons set forth in the discussion of § 60-250.5. Finally, the proposed regulation replaces the phrase “special disabled veteran(s), veteran of the Vietnam era, recently separated veteran(s), or other protected veteran(s)” with the term “protected veteran” in paragraph (b)(iii), for the reasons stated in the discussion of § 60-250.2.

Section 60-250.64 Show Cause Notice

This section describes the manner in which OFCCP notifies a contractor when it believes the contractor has violated Section 4212 or its regulations. The proposed rule replaces the term “Deputy Assistant Secretary” in this section with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.65 Enforcement Proceedings

This section describes the procedures for formal enforcement proceedings against a contractor in the event OFCCP finds a violation of Section 4212 or its regulations that has not been corrected. The proposed rule replaces the term “Deputy Assistant Secretary” in paragraph (a)(2) of this section with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.66 Sanctions and Penalties

This section discusses the types of sanctions and penalties that may be assessed against a contractor if it is found to have violated Section 4212 or its regulations. The proposed rule replaces the term “Deputy Assistant Secretary” in paragraph (a) of this section with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.67 Notification of Agencies

This section provides that agency heads will be notified if any contractors are debarred. The proposed rule replaces the term “Deputy Assistant Secretary” with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.68 Reinstatement of Ineligible Contractors

This section outlines the process by which a contractor that has been debarred may apply for reinstatement. The proposed rule replaces the term “Deputy Assistant Secretary” in paragraphs (a) and (b) of this section with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.69 Intimidation and Interference

This section forbids the contractor from retaliating against individuals who have engaged in or may engage in certain specified protected activities, and describes the contractor's affirmative obligations in preventing retaliation. The proposed rule replaces the term “Deputy Assistant Secretary” in paragraph (b) of this section with the term “Director,” for the reasons set forth in the discussion of § 60-250.2. The proposed rule also replaces the phrase “special disabled veteran(s), veterans of the Vietnam era, recently separated veteran(s), or other protected veteran(s),” with the term “protected veteran” in paragraphs (a)(2) and (a)(3) for the reasons stated in the discussion of § 60-250.2.

Subpart E—Ancillary Matters

Section 60-250.80 Recordkeeping

This section describes the recordkeeping requirements that apply to the contractor under Section 4212,

and the consequences for the failure to preserve records in accordance with these requirements. The proposed regulation adds a sentence at the end of paragraph (a) of this section clarifying that the newly proposed recordkeeping requirements set forth in §§ 250.44(f)(4) (linkage agreements and other outreach and recruiting efforts), 250.44(k) (collection of referral, applicant and hire data), 250.45(c) (criteria and conclusions regarding contractor established hiring benchmarks), and Paragraph 5 of the equal opportunity clause in § 60-250.5(a) (referral data) must be maintained for five (5) years, for the reasons set forth in the discussion of those

sections,

supra.

Section 60-250.81 Access to Records

This section describes a contractor's obligations to permit access to OFCCP when conducting compliance evaluations and complaint investigations. The proposed rule adds some language clarifying the contractor's obligations, particularly in light of the increased use of electronically stored records. First, the proposed rule adds a sentence requiring the contractor to provide off-site access to materials if requested by OFCCP investigators or officials as part of an evaluation or investigation. This change reflects the increased use of electronic records from multiple locations, and accordingly gives OFCCP greater flexibility in conducting its evaluations and investigations. Second, the proposed rule requires that the contractor specify all formats (including specific electronic formats) in which its records are available, and produce records to OFCCP in the format selected by OFCCP. This change is proposed in light of numerous instances in which OFCCP has conducted extensive review and analysis of a contractor's records only to find subsequently that the records were available in more readily accessible formats. Specifying the variety of available formats upon request, and providing records to OFCCP in the format it selects, will facilitate a more efficient investigation process.

Section 60-250.83 Rulings and Interpretations

This section establishes that rulings and interpretations of Section 4212 will be made by the Director of OFCCP. The proposed rule replaces the term “Deputy Assistant Secretary” with the term “Director,” for the reasons set forth in the discussion of § 60-250.2.

Section 60-250.84 Responsibilities of Local Employment Service Offices

This section outlines the responsibilities of local employment service offices, including the obligation to give priority referral to protected veterans for jobs listed by a Federal contractor. The proposed rule replaces the phrase “special disabled veteran(s), veteran(s) of the Vietnam era, recently separated veteran(s), or other protected veteran(s),” with the term “protected veteran” for the reasons stated in the discussion of § 60-250.2.

Appendix A to Part 60-250—Guidelines on a Contractor's Duty To Provide Reasonable Accommodation

The proposed rule includes four changes to Appendix A which would mandate activities that previously were only suggested. These changes primarily reflect proposed revisions to §§ 60-250.2 and 60-250.42(d),

supra,

that would alter the contractor's responsibilities.

First, in the third sentence of paragraph 2, we propose changing the language to reflect the change to § 60-250.42(d) requiring a contractor to seek the advice of special disabled veterans in providing reasonable accommodation. Second, in the last sentence of Paragraph 4, the proposed rule is changed to require that special disabled veterans, in the event an accommodation would constitute an undue hardship for the contractor, be given the option of providing the accommodation or paying the portion of the cost that constitutes the undue hardship for the contractor. Third, in the fourth sentence of paragraph 5, we propose changing the language to require a contractor to seek the advice of special disabled veterans in providing reasonable accommodation. Finally, in the last sentence of paragraph 9, the proposed rule is changed to require that a contractor must consider the totality of the circumstances when determining what constitutes a “reasonable amount of time” in the context of available vacant positions.

Additionally, the proposed rule changes the reference to “§ 60-250.2(o)” in paragraph 1 of Appendix A to “§ 60-250.2(r),” and changes the references to “§ 60-250.2(t)” in paragraphs 5 and 8 of Appendix A to “§ 60-250.2(s).” This is to reflect the revised alphabetical structure of the definitions section in the proposed rule, as discussed in § 60-250.2, above. The proposed regulation also replaces the term “VEVRAA” with “Section 4212” for the reasons set forth in the discussion of § 60-250.1.

Appendix B to Part 60-250—Sample Invitation to Self-Identify

The proposed rule amends Appendix B consistent with the proposed changes to the self-identification regulation found at § 60-250.42. The first paragraph is amended simply to include detailed definitions of the four types of classifications of protected veterans. These definitions are to be included in a contractor's invitation to self-identify either at the pre-offer (proposed § 60-250.42(a)) or post-offer (proposed § 60-250.42(b)). We propose this change to clarify for the contractor and for applicants exactly which categories of veterans are protected by part 60-250.

The second paragraph of the Appendix contains the suggested model language for the self-identification of protected veterans. The current language has models to be used if they are being distributed to non-special disabled protected veterans exclusively, special disabled veterans exclusively, or to all protected veterans. In keeping with the proposed changes in § 60-250.42, we propose amending the second paragraph to include two models: one that will be given to all applicants at the pre-offer stage, and one that will be given at the post-offer stage to all individuals who have been offered employment by the contractor. For the pre-offer stage, the invitation refers to the definitions for each of the classifications of protected veterans and invites applicants to identify if they belong to any one (or more) of them generally. It does not provide for individuals to self-identify as a particular type of protected veteran (

e.g.,

a qualified special disabled veteran). For the post-offer stage, the invitation again refers to the definitions for each of the classifications of protected veteran and then invites applicants to indicate to which specific classifications of protected veteran they belong.

For both the pre-offer and post-offer invitations, we have proposed new language explaining to applicants that the information is being requested in order to measure the contractor's outreach and recruitment efforts required under part 60-250. This replaces the current language which only inquires whether individuals would like to be included under the contractor's affirmative action program. The post-offer invitation in Paragraph 2 also incorporates the language in the current paragraph 7 of the Appendix, which requests that special disabled veterans describe possible workplace accommodations, with the exception of replacing “elimination of certain duties relating to the job” with “changes in the

way the job is customarily performed.” We propose this change merely to clarify the nature of the interactive process, and to eliminate any confusion that might exist regarding the existing language that “elimination of certain duties” could be read to include eliminating essential functions of the job. It is a change in verbiage only, and does not alter the substantive obligations of the contractor or applicant in the interactive process.

Finally, the proposed regulation also replaces the term “VEVRAA” with “Section 4212” for the reasons set forth in the discussion of § 60-250.1.

Appendix C to Part 60-250—Review of Personnel Processes

The proposed rule deletes Appendix C and moves its content, with some edits, to § 60-250.44(b).

See

the Section-by-Section Analysis of § 60-250.44,

supra,

for further discussion.

41 CFR Part 60-300

Subpart A—Preliminary Matters, Equal Opportunity Clause

Section 60-300.1 Purpose, Applicability and Construction

Paragraph (a) of the current rule sets forth the scope of Section 4212 and the purpose of its implementing regulations. We propose a few minor changes to this section. First, we propose deleting the reference to the “Vietnam Era Veterans' Readjustment Assistance Act of 1974” or “VEVRAA,” and replacing it, in this section and throughout the regulation, with “Section 4212”. Referring to the operative law as “VEVRAA” is not entirely accurate, as Section 4212, where VEVRAA was initially codified, has been amended several times since VEVRAA was passed—most recently by the Jobs for Veterans Act of 2002 (JVA), which amended the dollar amount for contract coverage and the categories of protected veterans, and subsequently led to the promulgation of the regulations found at part 60-300. One of the specific amendments made by the JVA was that “Vietnam Era veterans” was no longer a distinct protected category.

Therefore, there is concern that continued use of the term “VEVRAA” perpetuates confusion about which classifications of veterans are covered under the existing law. Referring to the law as “Section 4212” clarifies that we are referring to the law as amended. This is more accurate than “VEVRAA” and should alleviate any further confusion.

However, the vast majority of individuals who fell under the “Vietnam Era veteran” category of part 60-250 would fall under one of the categories of protected veterans in part 60-300.

Additionally, the proposed rule makes two minor language changes in order to comport with some of the newly proposed definitions in § 60-300.2. First, the term “other protected veterans” is amended to read “active duty wartime or campaign badge veterans,” for the reasons detailed in the Section-by-Section Analysis of § 60-300.2. Second, all references to “covered veterans” is amended to read “protected veterans,” due to the inclusion of a definition for “protected veteran” in the proposed § 60-300.2.

Section 60-300.2 Definitions

The proposed rule incorporates the vast majority of the existing definitions contained in existing § 60-300.2 without change. However, OFCCP proposes some changes to the substance and structure of this section, as set forth below.

With regard to the structure of this section, the current rule lists the definitions in order of subject matter. However, for those who are unfamiliar with the regulations, this organizational structure makes it difficult to locate specific terms within this section. The proposed rule reorders the defined terms in alphabetical order, and then assigns each term a lettered subparagraph heading. This modified structure is proposed for ease of reference, and to facilitate citation to specific definitions. However, because of this reordering, the citation to specific terms may be different in the proposed rule than it is currently. For instance, the term “contract,” which is § 60-300.2(h) in the current regulations, is § 60-300.2(e) in the proposed regulation.

With regard to substantive changes, the proposed rule first clarifies the definitions pertaining to the classifications of veterans who are protected under part 60-300. The Jobs for Veterans Act (JVA), which amended Section 4212 in 2002, defined the classes of veterans protected by part 60-300. The current classifications of protected veterans under the JVA, reflected in the part 60-300 regulation, are as follows: (1) Disabled veterans; (2) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; (3) 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 No. 12985 (known generally as “Armed Forces service medal veteran”); and (4) recently separated veterans. Currently, § 60-300.2 includes specific definitions for “disabled veterans,” “recently separated veterans,” and “Armed Forces service medal veterans.”

See

41 CFR 60-300.2(n), (q), (r). It does not contain a specific definition for “veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized.” Instead, this classification is included within the current “other protected veteran” definition.

See

41 CFR 60-300.2(p). This anomaly has caused significant confusion, as many individuals who are unfamiliar with the regulations believe that the “other protected veteran” category is a “catch-all” that includes all veterans. To address this issue, the proposed rule replaces the “other protected veteran” definition that is contained in the current regulation with the more precise classification language “active duty wartime or campaign badge veteran” that appears in the statute. This replacement will not change the scope of coverage. Instead, individuals currently covered under the “other protected veteran” classification as defined in the current rule will still be covered, but will fall under the more accurate “active duty wartime or campaign badge veteran” classification. It should be noted that this proposed rule does not revise the VETS-100A form, which is administered by the Department's Veterans' Employment and Training Service (VETS) and requires the contractor to tabulate the number of employees and new hires in each of the component categories of protected veterans under Section 4212. The VETS-100A form currently maintains the use of the “other protected veteran” classification. After the final rule is published, OFCCP will work with VETS to conform the VETS-100 form to the new Section 4212 regulations. The public will be given an opportunity to comment on these revisions, which must be approved by the Office of Management and Budget under the Paperwork Reduction Act prior to becoming effective.

The current rule also lacks a clear, overarching definition of “protected veteran,” under part 60-300. Although it discusses the responsibilities of a contractor to all categories of protected veterans collectively, it also enumerates each classification of protected veteran several times throughout the regulation. Accordingly, the proposed rule includes a new definition of “protected veteran,” which includes all four classifications of protected veterans separately identified and defined in 60-300.2. This new term would replace the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s)” used throughout the current rule to refer to these protected veterans in the aggregate. The individual categories of protected veterans continue to be separately identified in the first paragraph of the equal opportunity clause in § 60-300.5 to permit the identification of protected veterans in the context of the contract (

see

Section-by-Section Analysis of § 60-300.5,

infra,

for further explanation).

The proposed rule also replaces the term “Deputy Assistant Secretary,” found currently at § 60-300.2(d), with “Director.” The current § 60-300.2(d) defines “Deputy Assistant Secretary” as “the Deputy Assistant Secretary for Federal Contract Compliance of the United States Department of Labor, or his or her designee.” Following the elimination of the Employment Standards Administration in November 2009, the head of OFCCP now has the title of Director. Accordingly, the proposed rule reflects this change, which will be made throughout part 60-300.

linkage agreement”

to mean an agreement describing the connection between the contractor and appropriate recruitment and/or training sources. A linkage agreement is to be used by the contractor as a source of potential applicants to the covered groups in which the contractor is interested. The contractor's representative that signs the linkage agreement should be the company official responsible for the contractor's affirmative action program and/or has hiring authority.

Section 60-300.3 [Reserved]

Section 60-300.4 Coverage and Waivers

Section 60-300.5 Equal Opportunity Clause

Paragraph (a) contains the equal opportunity (EO) clause that must be included in all covered Government contracts and subcontracts. The proposed regulation includes numerous substantive changes.

First, the proposed regulation adds additional language to subparagraph 2 of the EO clause in this section clarifying the contractor's responsibility to “list” jobs in the context of mandatory listing requirements. The mandatory job listing requirement discussed in paragraphs 2 and 3 of the EO clause mandates that the contractor list all employment openings for the duration of the contract with an “appropriate employment service delivery system,” (hereinafter “employment service”). This listing not only provides a source for veterans to access job listings, but also allows the employment service to provide priority referrals of veterans for the Federal contractor jobs listed with the employment service. Following the publication of the most recent revisions to part 60-300 regulations, questions were raised as to the manner in which a contractor must provide information to an employment service in order to satisfy the requirement. There have been many instances in which a contractor provided job listings to an employment service in a manner or format that was unusable to that employment service. In order to satisfy the listing requirement, the contractor must provide job vacancy information to the appropriate employment service

in the manner that the employment service requires

The proposed regulation also adds a sentence to the end of paragraph 2 clarifying that, for any contractor who utilizes a privately-run job service or exchange to comply with its mandatory listing obligation, the information is subsequently must be provided to the appropriate employment service in the manner that the employment service requires. This clarification is proposed for two reasons. First, contractors' use of private job listing services has increased following the elimination of the Department's America's Job Bank listing service. Second, we have received feedback from officials in state employment services that some contractors provide job listing information to these private job listing services assuming that they have then fulfilled their listing obligations, but that the private job listing services do not always provide the information in the requisite in order to list the job opening in its database and provide priority referral of protected veterans.

The proposed regulations also add further detail to paragraph 4 of the EO clause with respect to the specific information the contractor must provide to state employment services in each state where the contractor has establishments. The current regulations require that the contractor provide the appropriate state employment service with the name and location of each of the contractor's hiring locations. The proposed regulations require that the contractor provide the state employment service with the following additional information: (1) Its status as a Federal contractor; (2) the contact information for the contractor hiring official at each location in the state; and (3) its request for priority referrals of protected veterans for job openings at all its locations within the state. This information shall be updated on an annual basis. These three additional items are proposed in light of feedback received from state employment services that there is no centralized list of Federal contractors that they can consult in order to determine if a listing employer is a Federal contractor. If the Federal contractor does not specifically identify itself as such to the state employment service and further identify the hiring official, the state employment service often will not know if it should be providing priority referrals of protected veterans as required by § 60-300.84 or who to contact. Requiring the Federal contractor to provide this additional information will facilitate the priority referral process. The proposed regulation also adds a sentence clarifying that, if the contractor uses any outside job search companies (such as a temporary employment agency) to assist in its hiring, the contractor must also provide the state employment service with the contact information for these outside job search companies. Due to the widespread use of these outside job search companies, this proposed language is included to ensure that the state employment service has the ability

to contact any and all individuals in any way responsible for a contractor's hiring in order to effectively carry out its obligations under § 60-300.84. Finally, the proposed regulation replaces the terms “state workforce agency” and “state agency,” found in a few instances in this paragraph, with the term “employment service delivery system.” The terms are interchangeable as used in this paragraph, but the latter term is already specifically defined in § 60-300.2, so we use it instead.

see

Section-by-Section discussion in 300.45,

infra

see

Section-by-Section discussion in 300.44(f)(3),

infra

For paragraph 11, which refers to the contractor's obligation to notify labor organizations or other workers' representatives about its obligations under Section 4212, we propose adding language clarifying that these obligations include non-discrimination, in addition to affirmative action. The current paragraph 11 does not specifically mention the contractor's non-discrimination obligations.

see

Finally, the proposed regulations amend paragraphs (d) and (e) of this section to require that the entire equal opportunity clause be included verbatim in Federal contracts. This is to ensure that the contractor and subcontractor read and understand the language in this clause. Feedback from town hall meetings and webinars conducted by OFCCP prior to the publication of this proposed rule indicated that some contractors, and especially subcontractors, are not aware of their EO Clause responsibilities. In the case of subcontractors, they often rely on the prime contractors to inform them of their nondiscrimination and affirmative action program obligations. If the EO Clause is not written in full, subcontractors are disadvantaged and often unaware of their statutory obligations until audited by OFCCP. Particularly given the emphasis the administration and Congress have placed on veterans' employment issues, we believe it is important to take whatever steps will inform contractors and subcontractors of the obligations under the EO Clause. OFCCP solicits public comment on this proposal and any other steps that would increase the contractor community's awareness of its obligations.

The proposed regulation also replaces the term “Deputy Assistant Secretary,” found in paragraph (f) of this section and in paragraphs 9 and 11 of the EO clause, with the term “Director,” for the reasons set forth in the discussion of § 60-300.2. It also replaces the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s)” found in the second sentence of Paragraph 1 and in Paragraph 9 of the EO clause, with the term “protected veteran,” for the reasons set forth in the discussion of § 60-300.2. This phrase remains in the first sentence of Paragraph 1 (with “active duty wartime or campaign badge veteran” replacing “other protected veteran,” as discussed in § 60-300.2,

supra

incorporated by reference. Finally, all references to “VEVRAA” are replaced with the term “Section 4212,” for the reasons set forth in the discussion of § 60-300.1.

Subpart B—Discrimination Prohibited

Section 60-300.21 Prohibitions

The proposed revisions also include minor language changes, replacing the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s)” found in paragraphs (a), (b), (c)(1), (d)(1), (e), (g)(1), and (i) with the term “protected veteran,” for the reasons set forth in the discussion of § 60-300.2, above.

Section 60-300.22 Direct Threat Defense

The proposed revisions change “§ 60-300.2(w)” in the parenthetical at the end of this section to “§ 60-300.2(g),” in light of restructuring the Definitions section in alphabetical order, as discussed in § 60-300.2, above.

Subpart C—Affirmative Action Program

Section 60-300.40 Applicability of the Affirmative Action Program Requirement

This section sets forth which contractors are required to maintain an affirmative action program, and the general timing requirements for its creation and submission to OFCCP. We propose a minor clarification to paragraph (c) of this section, specifying that the affirmative action program shall be reviewed and updated annually “by the official designated by the contractor pursuant to § 60-300.44(i).” While this is the intent of the existing language, the proposal clarifies this intention and ensures that company officials who are knowledgeable of the contractor's affirmative action activities and obligations are reviewing the program.

Section 60-300.41 Availability of Affirmative Action Program

This section sets forth the manner by which the contractor must make its affirmative action programs available to employees for inspection, which includes the location and hours during which the program may be obtained. The proposed regulation adds a sentence at the end of this section requiring that, in instances where the contractor has employees who do not work at the contractor's physical establishment, the contractor shall inform these employees about the availability of the affirmative action program by means other than a posting at its establishment. This addition is proposed in light of the increased use of telecommuting and other flexible workplace arrangements.

Section 60-300.42 Invitation to Self-Identify

The proposed revisions of this section make significant, substantive changes to the contractor's responsibilities and the process through which applicants are invited to self-identify as a veteran protected under the part 60-300 regulations, particularly those set forth in paragraphs (a) and (b). As described more fully below, these changes are proposed in order to collect enhanced data pertaining to protected veterans, which will allow the contractor and OFCCP to identify and monitor the contractor's employment practices with respect to protected veterans.

The current regulation requires the contractor to invite applicants who are disabled veterans as defined in 60-300.2, to self-identify only after making an offer of employment, subject to two exceptions.

See

§ 60-300.42(a). For all other veterans protected by part 60-300, the current regulation requires the contractor to invite such applicants to self-identify “before they begin [their] employment duties.”

See

§ 60-300.42(b).

The two exceptions to the prohibition on inviting disabled veterans to self-identify pre-offer contained in 41 CFR 300.42(a) would not change. The exceptions permit a contractor to invite disabled veterans to self-identify prior to making a job offer when: (1) The invitation is made while 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. These two exceptions are identical to the exceptions to the prohibition on pre-offer disability-related inquiries contained in the implementing regulations for Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503).

See

41 CFR 60-741.42. Consequently, under existing Section 4212 regulations, the contractor is permitted, although not required, to create employment programs targeting disabled veterans and inviting applicants to identify whether they are eligible for the program pre-offer. OFCCP is not proposing a change in this provision.

The proposed change requires the contractor to invite all applicants to self-identify as a “protected veteran” prior to the offer of employment. This proposed change would not seek the specific protected classification of protected veteran (disabled veteran, recently separated veteran, active duty wartime or campaign badge veteran, or Armed Forces service medal veteran). The pre-offer invitation would not require protected veteran applicants to disclose their status as a protected veteran if they chose not to (

see

the proposed Sample Invitation to Self-Identify in Appendix B,

infra

Through the various outreach efforts to stakeholders OFCCP has conducted in advance of this NPRM, an issue has

been raised regarding the implementing regulations of Title I of the ADA and Section 503, which limit the extent to which employers may inquire about disabilities prior to an offer of employment.

See

29 CFR 1630.13, 1630.14; 41 CFR 60-741.42. The concern is that requiring the contractor to invite applicants to self-identify as a protected veteran would violate the general prohibition against pre-offer disability-related inquiries because some protected veterans will be disabled veterans. This concern is misplaced, as the ADA and Section 503 regulations permit the contractor to conduct a pre-offer inquiry into disability status if it is “made pursuant to a Federal, state or local law requiring affirmative action for individuals with disabilities,” such as Section 4212 or Section 503. Id.

However, while it would be legally permissible to do so, OFCCP is not proposing that the pre-offer self-identification identify the specific category of protected veteran for three primary reasons. First, given that the overall population of protected veterans is already relatively small, dividing the pool of protected veterans into smaller component classifications would tend to reduce the ability of the contractor to engage in meaningful data analysis of applicants, such as that proposed in § 60-300.44(h) and (k). Second, a protected veteran may fall into several categories of protected categories, which could create unnecessary complexity to data analysis. For example, the same individual could be a protected veteran because he or she is a disabled veteran, a recently separated veteran and an Armed Service medal veteran. Finally, at the pre-offer stage under the proposed rule the contractor's obligations would be the same with respect to each category of protected veteran, thus there is no apparent benefit to knowing the specific category of protected veteran to which an applicant belongs.

In addition to the pre-employment self-identification provisions in § 60-300.42(a) of the proposed rule, § 60-300.42(b) of the proposed rule requires the contractor to invite individuals, after the offer of employment is extended, to self-identify as a member of one or more of the four classifications of protected veterans under part 60-300. Thus, post-offer identification will enable the contractor to capture refined data pertaining to each classification of protected veterans, as set forth in the VETS-100A form, which the contractor is required to maintain and submit. As is currently the case, the post-offer self-identification as a disabled veteran would not require applicants to disclose the specific nature of their disability.

We propose to revise paragraph (c) of this section by deleting the second sentence of the parenthetical at the end of the paragraph. This sentence described the format of and rationale behind the current Appendix B, which has been substantially amended in light of the new self-identification procedures proposed herein. For the same reasons, we propose revising paragraph (d) of this section to reflect the newly proposed self-identification process in which applicants will only identify themselves as disabled veterans specifically after an offer of employment is made. Further, we propose revising paragraph (d) to require, rather than suggest, that the contractor seek the advice of the applicant regarding accommodation. Requiring this of the contractor will help initiate a robust interactive and collaborative process between the contractor and the employee or applicant to identify effective accommodations that will facilitate a disabled veteran's ability to perform the job. While the purpose of this requirement is to promote agreement between the contractor and employee or applicant regarding accommodations to be used, this proposed change would not require that, in the event that multiple reasonable accommodations exist, the contractor must utilize the reasonable accommodation preferred by the employee or applicant.

We also propose replacing the term “appropriate accommodation” in paragraph (d) with “reasonable accommodation.” We have always interpreted “appropriate accommodation” in this paragraph as substantively identical to the term “reasonable accommodation.” However, because “reasonable accommodation” is already defined in these regulations and has a more broadly used and accepted legal definition, we propose using it here to avoid any confusion. This language change does not alter the contractor's existing obligations.

Section 60-300.43 Affirmative Action Policy

This section outlines the contractor's non-discrimination and affirmative action obligations under Section 4212. We propose two minor revisions to this section.

First, we propose replacing the phrase “because of status as a” in this section to “against,” in order to clarify that the non-discrimination requirements of Section 4212 are limited to protected veterans and that reverse discrimination claims may not be brought by individuals who do not fall under one of the categories of veterans protected by part 60-300. Second, we propose replacing the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s),” used twice in this section, with the term “protected veteran,” for the reasons set forth in the discussion of § 60-300.2.

Section 60-300.44 Required Contents of Affirmative Action Programs

This section details the elements that the contractor's affirmative action programs must contain. These existing elements include: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment-free workplace for protected veterans; (6) external dissemination of the contractor's affirmative action policy, as well as outreach and recruitment efforts; (7) internal dissemination of the contractor's affirmative action policy to all of its employees; (8) development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training for all employees regarding the implementation of the affirmative action program.

action policy statement, which is to signal to the contractor's employees that support for the affirmative action program goes to the very top of the contractor's organization.

In paragraph (b), the proposed rule requires that the contractor must review its personnel processes on at least an annual basis to ensure that its obligations are being met. The current rule requires that the contractor review these processes “periodically”. This standard is vague and subject to confusion. Indeed, OFCCP's efforts to enforce this requirement in recent years have been complicated by contractors' various, subjective interpretations of what constitutes “periodic” review. This proposal sets forth a clear, measurable and uniform standard that will be easily understood by the contractor and more easily enforced by OFCCP.

Further, the proposed revisions mandate certain specific steps that the contractor must take, at a minimum, in the review of its personnel processes. These specific steps are those currently set forth in Appendix C to the regulation. Appendix C currently suggests that the contractor: (1) Identify the vacancies and training programs for which protected veteran applicants and employees were considered; (2), provide a statement of reasons explaining the circumstances for rejecting protected veterans for vacancies and training programs and a description of considered accommodations; and (3) describe the nature and type of accommodations for special disabled veterans who were selected for hire, promotion, or training programs. Previously, these steps were recommended as an appropriate set of procedures. OFCCP's enforcement efforts have found that many contractors do not follow these recommended steps, and that the documentation contractors maintain of the steps they do take are often not conducive to a meaningful review by the contractor or OFCCP, particularly in the event of employee/applicant complaints. Such a meaningful review has always been the goal of the requirements in paragraph (b), as it ensures that the contractor remains aware of and actively engages in its overall affirmative action obligations toward protected veterans. The proactive approach set forth in the current Appendix C would provide greater transparency between the contractor, its applicants/employees, and OFCCP as to the reasons for the contractor's personnel actions. Requiring that the contractor record the specific reasons for their personnel actions, and making them available to the employee or applicant upon request, would also aid them in clearly explaining their personnel actions to applicants and employees, which could subsequently reduce the number of complaints filed against contractors. Thus we propose requiring the contractor to take these steps outlined currently in Appendix C (which are incorporated into paragraph (b) in the proposed rule), and encourage the contractor to undertake any additional appropriate procedures to satisfy its affirmative action obligations.

The current paragraph (f) suggests a number of outreach and recruitment efforts that the contractor can undertake in order to increase the employment opportunities for protected veterans.

See

41 CFR 60-300.44(f)(1). The proposed paragraph (f) requires that the contractor engage in a minimum number of outreach and recruitment efforts as described in proposed paragraph (f)(1). The proposed paragraph (f) also includes a list of additional outreach and recruitment efforts that are suggested (proposed paragraph (f)(2)), a new requirement that the contractor conduct self-assessments of their outreach and recruitment efforts (proposed paragraph (f)(3)), and a clarification of the contractor's recordkeeping obligation with regard to its outreach and recruitment efforts (proposed paragraph (f)(4)).

to the Local Veterans' Employment Representative in the local or state employment service office for listing and priority referral of protected veterans. The Local Veterans' Employment Representative is an existing government resource provided for veterans to help them find employment.

Second, the contractor would be required to enter into a linkage agreement with at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities. The listed organizations and agencies are those that are listed in the current paragraph (f)(1), with one addition: the Department of Defense Transition Assistance Program (TAP), or any subsequent program that replaces TAP. This program is administered in part by the Department of Labor's Veterans' Employment and Training Service (VETS) in Family Services Offices or similar offices at military bases. (

See http://www.dol.gov/vets/programs/tap/tap_fs.htm

) According to the Department of Defense, there are 249 TAP offices in installations around the United States, and another 16 TAP offices located in installations abroad. The TAP was designed to “smooth the transition of military personnel and family members leaving active duty.” The TAP includes employment workshops with the Department of Labor, and offers individualized employment assistance and training. It is currently required for all those serving in the Marine Corps, and is generally encouraged and supported by the other branches of the military. Accordingly, it provides an excellent existing source for identifying qualified protected veterans TAP is a validated multi-government agency program that assists separating veterans in finding employment, from resume writing to interview techniques to dressing for success. OFCCP is aware, however, that not all contractors are located near a military base or similar facility which provides TAP; therefore, a contractor may select another organization or agency from the list that is more conducive to its recruiting efforts.

Third, paragraph (f)(1) would also require that the contractor consult the Employer Resources section of the National Resource Directory, a partnership with an online collaboration (

http://www.nationalresourcedirectory.gov/employment/job_services_and_employment_resources

) among the Departments of Labor, Defense, and Veterans Affairs. New contractors and subcontractors often inquire about how they can find qualified protected veterans to comply with their AAP obligations. The National Resource Directory is a leading government Web site that provides prospective employers of veterans access to veterans' service organizations, existing job banks of veterans seeking employment, and other resources at the national, state and local levels. The NPRM gives contractors and subcontractors the flexibility to select any organization on the National Resource Directory for outreach and recruit purposes. Since this Web site is a great nationwide resource, any contractor would likely find it useful in fulfilling its affirmative action obligations, such as recruiting veterans. The contractor would be required to establish a linkage agreement with at least one of the many veterans' service organizations listed on the site (excluding organizations described in the previous paragraph) to facilitate referral of qualified protected veterans, as well as other related advice and technical assistance. We believe that these first two efforts that the proposed rule requires would assist the contractor in establishing a baseline level of contact with veteran and employment-related organizations, while providing the contractor with flexibility to establish linkage agreements with organizations that are most tailored to the contractor's hiring needs. Finally, the proposed paragraph (f)(1) would also require that the contractor send written notification of company policy related to affirmative action efforts to its subcontractors, including subcontracting vendors and suppliers, in order to request appropriate action on their parts and to publicize the contractor's commitment to affirmative action on behalf of protected veterans. While the proposed regulations would not require that the contractor send written notification to vendors and suppliers who are not subcontractors as defined by these regulations, such disclosure remains an encouraged activity, just as it is under the current regulation.

See

41 CFR 60-300.44(f)(6)).

In paragraph (f)(2) of the proposed rule, we list a number of outreach and recruitment efforts that are suggested measures for increasing employment opportunities for protected veterans. The efforts listed in paragraph (f)(2) are largely identical to the efforts that are suggested in paragraphs (f)(2) through (f)(5) and (f)(7) through (f)(8) of the current rule. This includes: (1) Holding briefing sessions with representatives from recruiting resources; (2) incorporating recruitment efforts for protected veterans at educational institutions; (3) considering applicants who are known protected veterans for all available positions when the position applied for is unavailable; and (4) any other positive steps the contractor believes are necessary to attract qualified protected veterans, including contacts with any local veteran-related organizations.

officers are able to understand clearly the rationale behind the contractor's self-assessment. The contractor's conclusion as to the effectiveness of its outreach must be reasonable as determined by OFCCP in light of these regulations. The primary indicator of effectiveness is whether qualified veterans have been hired. Further, should the contractor determine that its efforts were not effective, the proposed rule requires the contractor to identify and implement one or more of the alternative efforts listed in proposed paragraphs (f)(1) and (f)(2) in order to fulfill its obligations. The general purpose of this self-assessment is to ensure that the contractor think critically about its recruitment and outreach efforts, identify and ascertain successful recruiting efforts, and modify its efforts to ensure that its obligations are being met.

See

current regulation at 41 CFR 60-300.44(g)(2)(iii), 60-300.44(g)(2)(vii); 60-300.44(g)(2)(viii).

As for the requirement to inform all applicants and employees of its affirmative action obligations (item (2) in the preceding paragraph), the proposed regulation would require that the contractor hold meetings with its employees at least once per year to discuss the contractor's affirmative action policies and to explain contractor and individual employee responsibilities under these policies. These could be traditional in-person meetings, or meetings facilitated by technology such as webinars or videoconferencing. It would also require that the contractor describe individual employee opportunities for advancement in furtherance of the contractor's affirmative action plan. Frequent establishment-wide training on affirmative action issues will facilitate a greater understanding of the purpose of the affirmative action plan among employees. This training will also enhance the visibility and importance of affirmative action to the recruitment, hiring, and advancement of protected veterans. Finally, a newly proposed paragraph (g)(4) would require the contractor to document its activities in order to comply with paragraph (g), and retain these documents as records subject to the recordkeeping requirements of § 60-300.80. This will allow for a more effective review by the contractor and OFCCP to ensure that the affirmative action obligations of paragraph (g) are being met.

Paragraph (h) of this section details the contractor's responsibilities in designing and implementing an audit and reporting system for its affirmative action program, including the specific computations and comparisons that are part of the audit. The proposed regulations add a new paragraph (h)(1)(vi) requiring the contractor to document the actions taken to comply with paragraphs (h)(1)(i)-(v), and maintain such documents as records subject to the recordkeeping requirements of § 60-300.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met.

The only substantive proposed change in paragraph (i) requires that the identity of the officials responsible for a contractor's affirmative action activities must appear on all internal and external communications regarding the contractor's affirmative action program. In the current regulation, this disclosure is only suggested. Requiring this disclosure will increase transparency, making it clear to applicants, employees, OFCCP, and other interested parties which individual(s) are responsible for the implementation of the contractor's affirmative action program.

Paragraph (j) requires that the contractor train those individuals who implement the personnel decisions pursuant to its affirmative action program. The proposed regulation specifies the specific topics that shall be included in the contractor's training: the benefits of employing protected veterans; appropriate sensitivity toward protected veteran recruits, applicants and employees; and the legal responsibilities of the contractor and its agents regarding protected veterans generally and disabled veterans specifically, such as reasonable accommodation for qualified disabled veterans and the related rights and responsibilities of the contractor and protected veterans. Training on these issues will facilitate a greater understanding of the purpose of the affirmative action plan among decision makers for the contractor, and will enhance the visibility and importance of affirmative action to the recruitment, hiring, and advancement of protected veterans. The proposed regulation would also require that the contractor record which of its personnel receive this training, when they receive it, and the person(s) who administer(s) the training, and maintain these records, along with all written or electronic training materials used, in accordance with the recordkeeping requirements of § 60-300.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met.

The proposed regulation adds a new paragraph (k) requiring that the contractor maintain several quantitative measurements and comparisons regarding protected veterans who have been referred by state employment services, have applied for positions with the contractor, and/or have been hired by the contractor. The impetus behind this new section is that, as stated in the discussion of § 60-300.44(a), no structured data regarding the number of protected veterans who are referred for or apply for jobs with Federal contractors is currently maintained. This absence of data makes it nearly impossible for the contractor and OFCCP to perform even rudimentary evaluations of the availability of

protected veterans in the workforce, or to make any quantitative assessments of how effective contractor outreach and recruitment efforts have been in attracting protected veteran candidates. The proposed regulations provide for the collection of referral data (

see

§ 60-300.5, paragraph 5 of the EO clause), as well as applicant data (

see

§ 60-300.42(a)). Hiring data is already maintained by the contractor in its VETS-100A forms, a requirement which is carried over into this proposal. Accordingly, paragraph (k) requires that the contractor document and update annually the following information: (1) For referral data, the total number of referrals, the number of priority referrals of protected veterans, and the “referral ratio” of referred protected veterans to total referrals; (2) for applicant data, the total number of applicants for employment, the number of applicants who are known protected veterans, and the “applicant ratio” of known protected veteran applicants to total applicants; (3) for hiring data, the total number of job openings, the number of jobs filled, the number of known protected veterans hired, and the “hiring ratio” of known protected veteran hires to total hires; and (4) the total number of job openings, the number of jobs that are filled, and the “job fill ratio” of job openings to job openings filled. The proposed regulation requires that the contractor must document these measurements on an annual basis, and maintain records of them for five (5) years. These basic measurements will provide the contractor and OFCCP with important information that does not currently exist. This will aid the contractor in evaluating and tailoring its recruitment and outreach efforts and in establishing hiring benchmarks as set forth in the discussion of the proposed § 60-300.45,

infra.

Finally, the proposed regulation replaces the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s),” with the term “protected veteran” in paragraphs (a), (a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), (g)(2)(vii), and (h)(1)(iv), for the reasons stated in the discussion of § 60-300.2. The proposed regulation also replaces the terms “Vietnam Era Veterans' Readjustment Assistance Act of 1974” or “VEVRAA” with the term “Section 4212” throughout this section, for the reasons stated in the discussion of § 60-300.1.

Section 60-300.45 Contractor-Established Benchmarks for Hiring

While the Bureau of Labor Statistics (BLS) and Census Bureau (Census) do not tabulate data pertaining to the specific classifications of protected veterans under part 60-300, there are other existing data sources that are instructive. For instance, BLS tabulates statewide data on the number of veterans in the civilian labor force and the unemployment rate of veterans in the labor force, and national data on the number of veterans with a service-related disability. The Department's Veterans' Employment and Training Service collects statewide data over a rolling, four quarter period of individuals who “participated” in the state employment services. The breakdown of this data includes the number of overall veterans, the number of overall veterans who are identified as being unemployed, and the number of veterans in some, although not all, of the specific categories of veterans protected by part 60-300.

Accordingly, the proposed rule would require that the contractor consult a number of different sources of information, which will be made easily available to the contractor, in establishing hiring benchmarks. As set forth in the proposed paragraph (b), these sources would include: (1) The percentage of veterans in the civilian labor force, tabulated by BLS and which will be published on OFCCP's Web site; (2) the number of veterans who were participants in the state employment service in the State where the contractor's establishment is, which will also be published on OFCCP's Web site; (3) the referral ratio, applicant ratio, and hiring ratios as expressed in the proposed § 60-300.44(k); (4) the contractor's recent assessments of the effectiveness of its external outreach and recruitment efforts, as expressed in the proposed § 60-300(f)(3); and (5) any other factors, including but not limited to the nature of the contractor's job openings and/or its location, which would tend to affect the availability of qualified protected veterans. The contractor would be required to consider and document each of these factors,

see

proposed paragraph (c) of this section, but would be given discretion to weigh the various factors in a manner that is reasonable in light of the contractor's unique circumstances. We believe that this proposal creates a practical and workable mechanism for establishing benchmarks that will allow the contractor to measure its success in recruiting and employing protected veterans. However, we seek input from stakeholders on this proposal and any additional measures that would make these benchmarks more meaningful, as well as any other measures that would otherwise increase employment opportunities for veterans.

Subpart D—General Enforcement and Complaint Procedures

Section 60-300.60 Compliance Evaluations

This section details the form and scope of the compliance evaluations of the contractor's affirmative action programs conducted by OFCCP. The proposed rule contains several changes to this section.

First, the proposal adds a sentence to paragraph (a)(1)(i) regarding the temporal scope of desk audits performed by OFCCP. This language merely clarifies OFCCP's long-standing policy that, in order to fully investigate and understand the scope of potential violations, OFCCP may need to examine information after the date of the scheduling letter in order to determine, for instance, if violations are continuing or have been remedied. The language does not represent a change in policy or new contractor obligations.

Fourth, the proposed rule contains a minor change to the scope of “focused reviews” as set forth in paragraph (a)(4). Focused reviews allow OFCCP to target

one or more components of a contractor's organization or employment practices, rather than conducting a more comprehensive compliance review of an entire organization. Currently, the regulations provide that these focused reviews are “on-site,” meaning they must take place at the contractor's place of business. The increased use of electronic records that are easily accessible from multiple locations affords compliance officers greater flexibility in conducting focused reviews. Therefore, we propose to delete the word “on-site” from this section, which will allow compliance officers to conduct reviews of relevant materials at any appropriate location.

see

41 CFR 60-1.20(d)).

Section 60-300.61 Complaint Procedures

This section outlines the manner in which applicants or employees who are protected veterans may file complaints alleging violations of Section 4212 or its regulations.

The proposed rule replaces the term “Deputy Assistant Secretary” with the term “Director” in paragraphs (e)(1), (e)(2), and (e)(3), for the reasons set forth in the discussion of § 60-300.2. The proposed regulation also replaces the term “state workforce agency” in paragraph (a) with the term “employment service delivery system,” for the reasons set forth in the discussion of § 60-300.5. Finally, the proposed regulation replaces the phrase “disabled veteran(s), recently separated veteran(s), other protected veteran(s), or Armed Forces service medal veteran(s),” with the term “protected veteran” in paragraph (b)(iii), for the reasons stated in the discussion of § 60-300.2.

Section 60-300.64 Show Cause Notice

Section 60-300.65 Enforcement Proceedings

Section 60-300.66 Sanctions and Penalties

Section 60-300.67 Notification of Agencies

This section provides that agency heads will be notified if any contractors are debarred. The proposed rule replaces the term “Deputy Assistant Secr

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