Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans and Vietnam Era Veterans

DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-250

RIN 1215-AA62

Affirmative Action and Nondiscrimination Obligations of

Contractors and Subcontractors Regarding Special Disabled Veterans and

Vietnam Era Veterans

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises the regulations implementing the

affirmative action provisions of the Vietnam Era Veterans' Readjustment

Assistance Act of 1974, as amended (VEVRAA). VEVRAA requires Government

contractors and subcontractors to take affirmative action to employ and

advance in employment qualified special disabled veterans and veterans

of the Vietnam era. Today's rule generally conforms the VEVRAA

regulations to the Office of Federal Contract Compliance Programs'

regulations implementing Section 503 of the Rehabilitation Act of 1973,

as amended (Section 503). The rule also withdraws portions of a final

rule published by the Department of Labor on December 30, 1980 (which

was subsequently suspended) concerning VEVRAA, Executive Order 11246,

and Section 503. The withdrawal applies only to those provisions of the

1980 rule which pertain to VEVRAA.

DATES: The regulations are effective January 4, 1999. However, affected

parties do not have to comply with the new recordkeeping requirements

contained in the final rule until the Office of Management and Budget

(OMB) completes its review under the Paperwork Reduction Act of 1995

and OFCCP publishes in the Federal Register valid OMB control numbers.

FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of

Policy, Planning and Program Development, Office of Federal Contract

Compliance Programs, 200 Constitution Avenue, N.W., Room C3325,

Washington, D.C. 20210. Telephone: (202) 693-0102 (voice), 1-800-326-

2577 (TDD). Copies of this final rule, including copies in alternate

formats, may be obtained by calling (202) 693-0102 (voice), 1-800-326-

2577 (TDD). The alternate formats available are large print, an

electronic file on computer disk and audiotape. The rule also is

available on the Internet at http://www.dol.gov/dol/esa.

SUPPLEMENTARY INFORMATION:

Recent Legislative Developments

When OFCCP sent this final rule to the Federal Register for

publication, both houses of Congress had passed S. 1021, the ``Veterans

Employment Opportunities Act of 1998,'' but the bill had not yet been

signed into law. If the bill becomes law it will require additional

changes to the VEVRAA regulations, to increase the coverage threshold

from a contract of $10,000 or more to a contract of $25,000 or more,

and to add to the class of individuals protected under the law

``veterans who served on active duty during a war or in a campaign or

expedition for which a campaign badge has been authorized.'' OFCCP

considered delaying publication of this final rule until regulatory

provisions addressing the new legislation could be drafted and included

in the rule. We rejected that approach, however, because it would

unduly delay the implementation of the many important provisions

contained in this final rule, without increasing the speed with which

the revisions mandated by the new legislation could be published. OFCCP

has already begun work on an additional regulatory document that would

address the new legislation, and expects to publish that document in

the near future.

Current Regulations and Rulemaking History

This final rule revises the current regulations (41 CFR Part 60-

250) implementing the affirmative action provisions of the Vietnam Era

Veterans' Readjustment Assistance Act, as amended, 38 U.S.C. 4212

(Section 4212 or VEVRAA). VEVRAA requires parties holding a Government

contract or subcontract of $10,000 or more to ``take affirmative action

to employ and advance in employment qualified special disabled veterans

and veterans of the Vietnam era.'' (VEVRAA, which was originally

codified at 38 U.S.C. 2012, was redesignated as 38 U.S.C. 4212 by

Section 5(a) of the Department of Veterans Affairs Codification Act,

Pub. L. 102-83, August 6, 1991; no substantive change to VEVRAA

resulted from this legislation.)

The Department of Labor's Office of Federal Contract Compliance

Programs (OFCCP), which has authority to enforce Section 4212, has

published regulations implementing the Act at 41 CFR Part 60-250. These

regulations, consistent with the statute's mandate, establish various

affirmative action obligations for contractors (e.g., contractors are

required to use effective practices to recruit special disabled

veterans and veterans of the Vietnam era). The regulations require that

contractors refrain from discriminating against special disabled

veterans and veterans of the Vietnam era in all aspects of employment,

inasmuch as this prohibition is an indispensable component of

affirmative action. Another central requirement of the current

regulations is that contractors make reasonable accommodation to the

known physical or mental limitations of a qualified special disabled

veteran applicant or employee, unless the contractor can demonstrate

that the accommodation would impose an undue hardship on the operation

of its business. An accommodation is, for example, any change in the

work environment (e.g., the modification or acquisition of equipment)

or in the way a job customarily is performed (e.g., changes in work

assignments) that enables a qualified special disabled veteran to enjoy

equal employment opportunities.

On May 1, 1996, OFCCP published an interim rule revising 41 CFR 60-

250.5(d), Invitation to self-identify, and Appendix A to Part 60-250,

Sample Invitation to Self-Identify (61 FR 19366). The revision was

published to be consistent with an analogous requirement in the Section

503 final rule, also published on May 1, 1996 (61 FR 19336).

On September 24, 1996, OFCCP published a notice of proposed

rulemaking (NPRM)(61 FR 50080), proposing to revise the regulations

implementing VEVRAA. A correction notice and extension of the comment

period was published on October 28, 1996 (61 FR 55613). The comment

period ended December 27, 1996. Two comments were submitted in response

to the May 1, 1996, interim rule, and another seven comments were

submitted in response to the September 24, 1996, NPRM, as corrected. In

addition, five organizations expressed views on the proposal in a

meeting with OFCCP held during the comment period. The comments

represented the views of contractor advocacy organizations, veterans

advocacy organizations, an employer, an attorney who advises employers,

a state governmental agency, and two Federal agencies. All comments

have been analyzed and considered in the development of this final

rule.

Regulatory Revisions

Today's final rule is precipitated, in part, by OFCCP's publication

of a final rule revising the regulations

[[Page 59631]]

implementing Section 503 of the Rehabilitation Act of 1973 (61 FR

19336, May 1, 1996). Section 503 requires Government contractors and

subcontractors to take affirmative action to employ and advance in

employment qualified individuals with disabilities. In turn, the

revision to the Section 503 regulations was designed, in part, to

conform those regulations to regulations published by the Equal

Employment Opportunity Commission (EEOC) implementing Title I of the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.

See 29 CFR Part 1630. Title I of the ADA, which is enforced by the

EEOC, prohibits private and state and local governmental employers with

15 or more employees from discriminating against qualified individuals

with disabilities in all aspects of employment. The ADA regulations

establish comprehensive, detailed prohibitions regarding disability

discrimination but do not require affirmative action.

OFCCP has modeled its regulations implementing 38 U.S.C. 4212 on

those implementing Section 503. This reflects the close similarity

between the statutes in terms of their substantive protections and

jurisdictional requirements. For instance, Section 4212, like Section

503, protects disabled individuals, albeit a more narrow class of

disabled persons--that is, ``special disabled veterans.'' The VEVRAA

regulations being revised today were identical to the former Section

503 regulations, except where differences were necessary because of the

nature of the protected class or differences in the statutes, to assure

that covered contractors were subject to consistent requirements under

both laws. In order to retain that consistency and avoid confusion and

conflict, OFCCP believes that the Section 4212 regulations should

continue to parallel the Section 503 regulations.

Accordingly, OFCCP has revised the Section 4212 regulations to

conform them to the Section 503 final rule published in 1996. Thus,

today's final rule, similar to the final Section 503 regulations,

adopts the standards contained in the regulations implementing the ADA

regarding disability discrimination, but applies these standards with

respect to special disabled veterans and, to a more limited extent, to

veterans of the Vietnam era.

Specific changes are discussed in the Section-by-Section Analysis

below.

Partial Withdrawal of 1980 Final Rule

OFCCP also proposed to withdraw portions of a final rule published

by the Agency on December 30, 1980 (45 FR 86215; corrected at 46 FR

7332, January 23, 1981), and deferred indefinitely on August 21, 1981

(46 FR 42865). That 1980 rule would have revised the regulations at 41

CFR Chapter 60 implementing Section 4212 as well as two other laws

enforced by OFCCP--Executive Order 11246, as amended, and Section 503.

Executive Order 11246 requires Government contractors and

subcontractors to assure equal employment opportunity without regard to

race, color, religion, sex and national origin. As noted above, Section

503 mandates similar requirements with regard to the employment of

individuals with disabilities.

The December 30, 1980, rule was to take effect on January 29, 1981.

On January 28, 1981, the Department of Labor published a document (46

FR 9084) delaying the effective date of the final rule until April 29,

1981, to allow the Department time to review the regulation fully. The

Department published three subsequent deferrals of the rule in 1981 in

order to fully review the OFCCP regulations in accordance with

Executive Order 12291, to permit consultation with interested groups,

and to comply with new intergovernmental review and coordination

procedures. The Department again postponed the rule's effective date on

August 25, 1981, until action could be taken on a proposed rule

published on the same date (46 FR 42968).

The August 25, 1981, proposal would have revised a number of

provisions contained in the December 30, 1980, final rule as well as a

number of provisions in 41 CFR Chapter 60 which were not amended by

that final rule. Final action has not been taken with respect to the

proposed regulations issued on August 25, 1981, or, consequently, with

respect to the 1980 final rule.

The substance of a number of the provisions contained in the 1980

final rule pertaining to the current Section 4212 regulations has been

incorporated into today's final rule. However, OFCCP has determined not

to go forward with some of the other revisions to the regulations. For

instance, unlike today's final rule (and the current regulations), the

1980 final rule would have consolidated a number of the provisions of

the Section 4212 regulations with common provisions implementing

Executive Order 11246 and Section 503 into 41 CFR Part 60-1, which

currently sets out the general obligations under the Executive Order.

The one comment received on the proposed withdrawal of the 1980

final rule is discussed in the Section-by-Section Analysis below. In

order to avoid conflict between today's final rule and the 1980 final

rule, OFCCP hereby withdraws all provisions of the 1980 rule that

pertain to Section 4212.

Section-by-Section Analysis

This final rule consists of five subparts. Subpart A, ``Preliminary

Matters, Equal Opportunity Clause,'' explains the purpose, application

and construction of the regulations in general and contains an

extensive definitions section. The definitions section incorporates the

definitions contained in the Section 503 final rule which are relevant

to the enforcement of Section 4212, as well as statutorily required

revisions to the definitions of ``special disabled veteran'' and

``veteran of the Vietnam era.'' Subpart A also contains provisions

relating to coverage under Section 4212, and coverage exemptions and

waivers, as well as the equal opportunity clause, which delineates a

covered contractor's general duties under the Act.

Subpart B is a new subpart, which specifies the employment actions

that will be deemed to constitute prohibited discrimination under

Section 4212. This subpart is substantially identical to the parallel

provisions in the Section 503 final rule. Where appropriate, references

to special disabled veterans and veterans of the Vietnam era have been

substituted for the references in the Section 503 regulations to

individuals with disabilities.

Subpart C, which governs the applicability of the written

affirmative action program requirement, reorganizes, clarifies and

strengthens the affirmative action provisions in the current

regulations. These revisions parallel those found in the Section 503

final rule. As stated in Sec. 60-250.40(a), the requirements of Subpart

C apply only to Government contractors with 50 or more employees and a

contract of $50,000 or more. All other subparts of the regulation are

applicable to all contractors covered by Section 4212.

Subpart D covers general enforcement and complaint procedures. In

order to help ensure that OFCCP uses consistent enforcement approaches

under VEVRAA and Executive Order 11246, this subpart, again paralleling

the changes in the Section 503 final rule, incorporates a number of

provisions from the regulations implementing the Executive Order.

Further, Subpart D's provisions regarding complaint procedures, like

the counterpart provisions in the Section 503 final rule, are in part

based on the procedural regulations applicable to the ADA. These

procedures also are revised to reflect an amendment to Section 4212.

[[Page 59632]]

Subpart E, Ancillary Matters, incorporates revised provisions on

recordkeeping (e.g., it extends the current one-year record retention

period to two years for larger contractors and conforms the scope of

the retention obligation to that applied by the EEOC under the ADA and

by OFCCP under Section 503), adds a mandatory notice posting

requirement, and makes other revisions.

Finally, this rule contains a new appendix which sets out guidance

on the duty to provide reasonable accommodation under the Act. The

appendix is substantially identical to the counterpart appendix

contained in the Section 503 final rule. In turn, that appendix is

consistent with the discussion of the issue of reasonable accommodation

contained in the Interpretative Guidance on Title I of the Americans

with Disabilities Act, which is set out as an appendix to the EEOC's

ADA regulations. Accordingly, the EEOC appendix may be relied on for

guidance with respect to parallel provisions of this final rule.

This rule uses a long form amending procedure in which all sections

of the regulations are republished, including sections for which no

changes were proposed and sections for which the only proposed change

was the section number. Use of the long form procedure ensures maximum

clarity. The discussion which follows identifies the comments received

in response to the NPRM, provides OFCCP's responses to those comments,

and explains any resulting changes to the proposed revisions.

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-250.1 Purpose, Applicability and Construction

The preamble to the NPRM pointed out that the 1980 final rule would

have consolidated provisions (e.g., definitions) which are applicable

to both Section 4212 and Executive Order 11246 into 41 CFR Part 60-1,

and would have established some common enforcement procedures under all

of the laws enforced by OFCCP by making certain procedures (e.g., the

show cause notice), which were previously applicable only to the

Executive Order, applicable to Section 4212. The VEVRAA NPRM proposed

withdrawal of the 1980 final rule, and did not propose similar

consolidations because OFCCP now believes that consolidation of

provisions in this way is not practical.

One commenter objected to OFCCP's stated inclination not to

consolidate common provisions. The commenter felt that OFCCP applies a

low priority to veterans' employment rights, and suggested that

consolidating common provisions would strengthen enforcement of VEVRAA

and place it on a par with enforcement of Executive Order 11246.

OFCCP disagrees with the commenter's assessment that the agency

applies low priority to enforcement of VEVRAA. Traditionally, whenever

OFCCP has conducted a compliance review it has examined compliance with

VEVRAA (and Section 503) as well as compliance with Executive Order

11246. OFCCP also investigates all complaints of discrimination filed

under VEVRAA; by contrast, most complaints of discrimination under the

Executive Order are not investigated by OFCCP but are referred to the

EEOC for processing under Title VII of the Civil Rights Act of 1964.

Further, OFCCP does not agree with the commenter's premise that

consolidating provisions would alter enforcement of VEVRAA. The vast

majority of the consolidations made in the 1980 rule simply moved

various provisions from Parts 60-250 and 60-741 into Part 60-1, without

substantive change. The thinking at that time was that the regulations

would be easier to use if fundamental elements (such as definitions)

appeared in one place at the beginning of Chapter 60. Also, OFCCP hoped

to shorten the regulations by reducing instances in which similar

material (e.g., provisions on coverage and waivers) was repeated three

times in three different Parts of Chapter 60. Upon reexamination in

light of the comment, OFCCP concludes that consolidating provisions is

not justified or necessary at this time. In OFCCP's view, consolidation

would not strengthen enforcement of VEVRAA and could be confusing to

readers of the regulations.

Paragraph (c)(2) of the proposal, and of the final rule, provides

that the contractor may take an action which would violate Part 60-250,

or refrain from taking an action required by that part, where such

action or omission is required or necessitated by another Federal law

or regulation. OFCCP stated in the preamble to the NPRM, as examples of

this principle, that ``contractors would be permitted to comply with

requirements relating to the collection, analysis and disclosure of

certain medical information which are imposed by the Mine Safety and

Health Act (MSHA) and the Occupational Safety and Health Act (OSHA)

(and related state laws which have been approved by the Occupational

Safety and Health Administration).'' (Emphasis added.)

The EEOC commented that they agree that contractors may rely on an

OSHA-approved state law that is identical to its Federal counterpart,

as a defense. However, they stated that they have not yet taken a

position on the use of a conflicting OSHA-approved state safety and

health law that is not identical to the Occupational Safety and Health

Act, as a defense to a violation of the ADA. We agree that our NPRM

preamble statement relating to reliance on a state law may be overly

broad. At this time we will not permit a contractor to rely upon a

state law which is not identical to the Occupational Safety and Health

Act, as a defense to a violation of VEVRAA. Accordingly, we have

deleted the parenthetical statement which appeared in the NPRM.

Section 60-250.2 Definitions

Section 60-250.2(h) Contract

OFCCP proposed that ``contract'' be defined to include ``any

Government contract or subcontract.'' (Emphasis added.) One commenter

suggested that it is inappropriate to include subcontracts within the

definition of contract, because doing so would impede OFCCP's ability

to identify subcontractors and therefore to enforce VEVRAA against

subcontractors. OFCCP disagrees. The regulations continue to define the

terms ``subcontract'' and ``subcontractor.'' See Secs. 250.2(l) and

(m). The purpose of including ``subcontract'' within the definition of

``contract'' is simply to eliminate the need to mention subcontracts in

the regulatory text each time the regulation seeks to address both

contracts and subcontracts. This change will not in any way affect

OFCCP's ability to identify subcontractors or to enforce the law

against subcontractors.

Section 60-250.2(o) Qualified Special Disabled Veteran

In the proposed rule the definition of qualified special disabled

veteran cross-referenced Sec. 60-250.3, which in the proposal contained

exceptions to the definition of special disabled veteran and qualified

special disabled veteran. As discussed below, we have not included the

exceptions in the final rule. Accordingly, we have dropped the cross

reference from this definition.

Section 60-250.2(p) Veteran of the Vietnam Era

One commenter pointed out that on October 9, 1996, the Veterans'

Benefits Improvement Act of 1996 (Public Law 104-275, Sec. 505) amended

VEVRAA by, among others things, changing the

[[Page 59633]]

definition of ``Vietnam era.'' Under the revised definition, the

Vietnam era now extends from February 28, 1961, through May 7, 1975,

for veterans who served in the Republic of Vietnam during that period,

and from August 5, 1964, through May 7, 1975, in all other cases.

Revision of the statutory definition requires a corresponding

revision of OFCCP's regulatory definition of ``Veteran of the Vietnam

era.'' This revision is a nondiscretionary, ministerial action which

merely incorporates, without change, the statutory amendment into a

pre-existing regulation. Publication in proposed form would serve no

useful purpose, and therefore is unnecessary under the Administrative

Procedure Act (5 U.S.C. 553(b)(B)). Accordingly, we find good cause to

waive notice of proposed rulemaking and to include the revision in this

final rule.

Section 60-250.3 Exceptions to the Definitions of ``special disabled

veteran'' and ``qualified special disabled veteran''

As proposed, this section would have excluded from the Act's

protection of special disabled veterans and qualified special disabled

veterans: (a) an alcoholic whose current use of alcohol prevents

performance of the essential functions of the employment position in

question or which would pose a direct threat to property or to health

or safety; and (b) an individual with a currently contagious disease or

infection who, by reason of the disease or infection, would constitute

a direct threat to the health or safety of the individual or others or

who, by reason of the disease or infection, is unable to perform the

essential functions of the employment position in question. The two

exclusions would have been carried over from the Section 503 rule.

A commenter objected to the proposal's exclusion of certain

alcoholics from protection. The commenter was concerned that the

provision might encourage stereotyping of disabled veterans.

Upon consideration of the proposed rule in light of the comment,

OFCCP has decided to remove from the final rule both proposed

exclusions. The exclusions must appear in the Section 503 rules,

because Section 503 itself requires them. However, none of Section

503's exclusions from protection have been legislated into VEVRAA.

Accordingly, in this final rule we do not adopt the exclusions which

are found at 41 CFR 60-741.3 in the Section 503 rule. In order to

preserve parallel section numbering between the VEVRAA and Section 503

rules, we have designated Sec. 60-250.3 as ``Reserved.''

Section 60-250.5 Equal Opportunity Clause

Paragraph (a)2 of the proposal required that contractors

immediately list their employment openings at an appropriate office of

the state employment service system wherein the opening occurs. One

commenter suggested that listing job openings with the Department of

Labor's America's Job Bank should be deemed to satisfy the job listing

requirement. America's Job Bank is a computerized, nationwide listing

of job openings. The computerized network links the 1800 state

employment service offices. Job seekers may access the Job Bank via the

Internet at http://www.ajb.dni.us/, and on computer systems in public

libraries, colleges and universities, high schools, shopping malls and

other public places.

OFCCP agrees, along with the Veterans' Employment and Training

Service, that listing jobs in America's Job Bank will satisfy a

contractor's listing obligation. Therefore, we have supplemented

paragraph (a)2 of the equal opportunity clause to reflect this

additional method for listing jobs.

The same commenter also felt that the regulations ``are unclear as

to whether an employer is required to list with a state employment

agency positions normally filled through outside temporary employment

agencies.'' The commenter apparently disagrees with the interpretation

some OFCCP staff have given the corresponding provision of the existing

regulation. OFCCP believes that the answer to this question depends

upon the facts of each particular situation, and therefore is too

detailed to be included in a regulation.

Section 702 of the Veterans' Benefits Improvements Act of 1994,

Public Law 103-446, permits the exemption of the contractor's

``executive and top management'' positions from the mandatory job

listing requirement. OFCCP proposed a definition of ``executive and top

management'' that was based upon the definition of ``executive'' found

in the Department of Labor's regulations implementing the Fair Labor

Standards Act (FLSA), 29 CFR 541.1. One commenter objected to the

proposed definition, claiming that it ``would serve to exempt all but

the very lowest positions.''

As proposed, the full definition stated that in order to be

considered ``executive and top management,'' and thus exempt from the

mandatory listing requirement, a job must satisfy five factors: (a) the

incumbent employee's primary duty must consist of the management of the

enterprise or of a customarily recognized department or subdivision of

the enterprise; (b) the employee must customarily and regularly direct

the work of two or more other employees; (c) the employee must have the

authority to hire or fire other employees, or his or her suggestions

and recommendations as to the hiring or firing and as to the

advancement and promotion or other change of status will be given

particular weight; (d) the employee must customarily and regularly

exercise discretionary powers; and (e) with certain limited exceptions,

the employee must not devote more than 20 percent (40 percent in retail

and service establishments) of his or her hours of work to activities

which are not closely related to the work described in (a) through (d).

The commenter took a portion of the test out of context, citing

only one clause from factor (c) relating to the employee's authority to

make recommendations and suggestions about personnel actions. In fact,

the standard is quite stringent in that all five factors must be

satisfied. Thus, for example, in a case under the FLSA, Assistant

Managers in a fast-food restaurant were determined not to be executives

because, despite many management responsibilities, they spent more than

40 percent of their time on production duties. Donovan v. Burger King,

675 F.2d 516 (2nd Cir., 1982). Similarly, a Warehouse Manager for a

retail shoe chain was found to fall outside the ``executive'' exemption

of the FLSA because he did not regularly exercise discretionary powers,

and because the employer was unable to demonstrate that the Manager did

not devote more than 20 percent of his working hours to activities not

related to the performance of the work described in factors (a) through

(d). Wirtz v. C&P Shoe Corp., 336 F.2d (5th Cir., 1964). Accordingly,

OFCCP has decided to adopt the definition of ``executive and top

management'' as proposed.

Throughout the equal opportunity clause, and elsewhere in the

regulation, we have used the term ``local employment service office''

to refer to the office with which jobs must be listed. This is the same

term used in the statute. A proposed definition of the term

``appropriate local office of the state employment service system'' has

been dropped as unnecessary, and the remaining definitions in section 6

of the equal opportunity clause have been renumbered accordingly.

[[Page 59634]]

Subpart C--Affirmative Action Program

Section 60-250.40 Applicability of the Affirmative Action Program

Requirement

One commenter objected to the proposed standard (which is also the

standard under the current rule) that the written affirmative action

program requirement applies only to contractors with 50 or more

employees and a contract of $50,000 or more. The commenter felt that

this was at odds with the statutory requirement that ``[a]ny contract

in the amount of $10,000 or more'' contain a provision requiring that

the contractor take affirmative action to employ and advance in

employment qualified special disabled and Vietnam era veterans.

OFCCP does not agree that the two provisions are at odds. All

nonexempt contractors, that is, all contractors with a contract of

$10,000 or more, are subject to the basic nondiscrimination and

affirmative action requirements of VEVRAA. These requirements include

the duty to list job vacancies with a local employment service office.

In addition, those contractors who meet the stated 50 employee/$50,000

contract threshold must prepare a written affirmative action program.

The written AAP contains additional affirmative action obligations for

larger contractors with larger contracts, such as undertaking specified

outreach and positive recruitment activities. See, for example,

Sec. 60-250.44(f). Accordingly, the rule is adopted as proposed.

Section 60-250.42 Invitation to Self-identify

On May 1, 1996, OFCCP published an interim rule amending Sec. 60-

250.5(d) of the then-current regulations relating to invitations to

self-identify. The interim rule was intended to conform the invitation

to self-identify requirement under VEVRAA with the requirement

contained in the Section 503 final rule. The rule was published in

response to concerns raised by representatives of Government

contractors that if contractors were faced with a self-identification

requirement under VEVRAA that was different than the requirement under

Section 503, each contractor would have to revise its forms, notices

and posters when the Section 503 final regulations took effect, and

then change those same forms, notices and posters again when OFCCP

promulgated its revisions to the VEVRAA regulations.

The NPRM published on September 24, 1996, mirrored the VEVRAA

interim rule and the Section 503 final rule. It required the

contractor, after making an offer of employment and before the

applicant began his or her employment duties, to invite applicants to

identify themselves as special disabled or Vietnam era veterans in

order to benefit from the contractor's affirmative action program. As

an exception to the general requirement that the invitation be extended

after an offer of employment, the proposal permitted a pre-offer

invitation in two limited circumstances: if the invitation was made

when the contractor actually was undertaking affirmative action at the

pre-offer stage; or if the invitation was made pursuant to a Federal,

state or local law requiring affirmative action for special disabled or

Vietnam era veterans. This approach was intended to be consistent with

Sec. 1630.14(b) of the EEOC's regulations, and the EEOC's October 10,

1995, ``ADA Enforcement Guidance: Preemployment Disability-Related

Questions and Medical Examinations.''

The proposal also required that the contractor maintain a separate

file on applicants and employees who identified themselves as covered

disabled veterans or Vietnam era veterans, and provide that file to

OFCCP upon request. Finally, the proposal provided that if an applicant

identified himself or herself as a special disabled or Vietnam era

veteran, the contractor should seek the advice of the applicant

regarding proper placement and appropriate accommodation, after a job

offer had been extended.

Two comments were submitted in response to the May 1, 1996, interim

rule. One of the interim rule commenters also commented on the NPRM,

and two additional comments were submitted in response to the NPRM.

Finally, five organizations expressed views on the proposal in a

meeting with OFCCP held during the comment period.

The five organizations felt that the proposed limitations on pre-

offer invitations to Vietnam era veterans were unduly restrictive. They

asserted that in most instances a contractor would be aware of an

applicant's veteran status at the pre-offer stage, because the

applicant would include this information in his or her employment

history, or because of priority referral from the job listing program.

The organizations advocated that, with respect to Vietnam era veterans,

the invitation to self identify should be mandatory at the pre-offer

stage so that contractors could take affirmative action specific to

Vietnam era veterans in the employment process. Upon consideration, we

agree that limiting the invitation to Vietnam era veterans to the post-

offer stage is unduly restrictive. The disability discrimination

concerns embodied in the ADA (which justify restrictions on the timing

of invitations extended to special disabled veterans) do not apply to

Vietnam era veterans.

On the other hand, we are reluctant to require that the invitation

be extended pre-offer, because to do so would mandate that contractors

extend invitations at two different times--a pre-offer invitation to

Vietnam era veterans and a post-offer invitation to special disabled

veterans. This would potentially be confusing and seemingly over-

technical, particularly for smaller employers.

Accordingly, the final rule contains separate invitation to self-

identify provisions for special disabled veterans and for Vietnam era

veterans. Paragraph (a) covers the invitation that is to be extended to

special disabled veterans. It requires, with two limited exceptions,

that the invitation be extended after a job offer has been made and

before the individual begins his or her employment duties. The

exceptions are that the invitation may be extended pre-offer when: the

invitation is made when the contractor actually is undertaking

affirmative action for special disabled veterans at the pre-offer

stage; or the invitation is made pursuant to a Federal, state or local

law requiring affirmative action for special disabled veterans. In this

context, the reference to Federal law means a law other than one

enforced by OFCCP (i.e., Section 503 and VEVRAA). Following are

examples which illustrate the application of each exception:

Special disabled veteran example: A contractor establishes a job

training program to train disabled veterans for high paying technical

jobs like those at the contractor's establishment. The initial phase of

the training program is a six-month classroom component. The contractor

pays all costs for the classroom training, and pays the participants

the minimum wage during this period. After completion of classroom

training, all trainees participate in a six-month work-study phase of

the program. During the work-study phase, participants are regarded as

temporary trainee-employees of the contractor. The contractor hires

graduates of the program as permanent employees, if openings exist when

the training is complete. Program participants whom the contractor is

unable to hire have acquired education and job experience that will

assist them in obtaining skilled employment as technicians elsewhere.

The contractor's initial decision to accept an individual into the

program is also a decision to employ that person as

[[Page 59635]]

a temporary employee during the classroom and work-study phases of the

program. Under the general rule stated at Sec. 60-250.42(a), the

contractor could not ask program applicants to disclose whether they

are disabled veterans because the question would be a pre-offer

disability-related inquiry. However, the contractor's program is a

voluntary affirmative action program that satisfies the exception at

Sec. 60-250.42(a)(1). The contractor's program is a specific and fully

implemented affirmative action effort, which is not required by any

Federal, state or local law. The affirmative action program requires

the identification of disabled veterans prior to extending an offer to

participate in the program, because the information is necessary for

determining whether the applicant is eligible to participate in the

program.

Federal, state or local law example: A state statute requires that

state government jobs be filled in the following fashion. Applicants

who meet basic eligibility requirements take a competitive examination.

The names of applicants who pass the examination are placed on a list

of eligible applicants in the following order: (1) disabled veterans;

(2) veterans; (3) widows of veterans who were killed in action; (4) all

others in order of their test scores. When job openings occur the

selecting official is provided the names of the top five applicants

from the list to interview for employment. All five applicants are

interviewed before a job offer is extended.

The state statute expressly requires affirmative action in the form

of according top priority to disabled veterans for placement on a list

of eligibles. In order to implement the priority accorded disabled

veterans, state officials must be able to determine whether an

applicant is a disabled veteran prior to extending a job offer. The

state's program fits within the exception at Sec. 60-250.42(a)(2).

Therefore, it is not a violation of VEVRAA (or of Section 503 or the

ADA) for state hiring officials to invite applicants to self-identify

as a special disabled veteran prior to extending an offer of

employment.

Paragraph (b) covers invitations to veterans of the Vietnam era. It

specifies that the invitation may be made at any time before the

applicant begins his or her employment.

This approach necessitated some modification of Appendix B, which

contains a sample invitation to self-identify. We have amended the

Appendix to make it adaptable to situations in which a contractor

extends an invitation to Vietnam era veterans separately from its

invitation to special disabled veterans, as well as when the contractor

extends a single invitation to both categories of veterans.

One comment on the interim rule expressed concerns about the

separate file requirement contained in subsection (d)(4). The

commenter, an agency of a state government, felt that the requirement

that contractors maintain a separate file on persons who have self-

identified and provide the file to OFCCP upon request, ``creates an

undue burden on covered contractors, without any appreciable benefit to

the class Sec. 60-250 was intended to protect.'' OFCCP disagrees that

the requirement to maintain separate files results in an increased

recordkeeping burden for contractors. As explained in the preamble to

the interim rule:

OFCCP believes that a number of contractors may already have

maintained separate files on such applicants and employees in order

to implement the VEVRAA confidentiality requirements. In addition,

the ADA presently requires employers with 15 or more employees to

maintain on separate forms and in separate medical files information

obtained regarding the medical condition or history of applicants

and to treat this information as confidential medical records (42

U.S.C. 12112(d)(3)(B); 29 CFR 1630.14(b)(1)). Furthermore, because

the invitation to self-identify is only required by the interim rule

to occur after a job offer has been made, and not to all applicants,

there will be fewer records of self-identification being generated

than in the past.

Moreover, because the ADA requires that information regarding the

medical condition or history of applicants be kept in separate files,

OFCCP cannot impose a different standard with regard to disabled

veterans under VEVRAA.

The second commenter on the interim rule addressed the portion of

proposed subsection (d)(4) that provided that if an applicant

identifies himself or herself as an individual with a disability, the

contractor should seek the advice of the applicant regarding proper

placement and appropriate accommodation, after a job offer has been

extended. The commenter asserted that if an applicant self-identified

at the pre-offer stage, the contractor apparently cannot discuss

accommodation at that stage unless the applicant first raises the

issue. The commenter then opined that this imposed an additional burden

as well as a more stringent restriction on Federal contractors under

VEVRAA than the EEOC imposes under the ADA. Specifically, the commenter

asserted that the EEOC's enforcement guidance permits an employer to

ask an applicant questions regarding possible reasonable

accommodations: (1) If the employer believes the applicant will need

accommodation because of an obvious disability; (2) if the employer

believes the applicant will need accommodation because of a hidden

disability that the applicant has voluntarily disclosed; or (3) if the

applicant has voluntarily disclosed to the employer that he or she

needs accommodation. In the commenter's view OFCCP's interim rule

permitted pre-offer discussion of accommodations only in the third

instance mentioned above.

We disagree with the commenter's interpretation of the rule. The

rule recommends that contractors make certain inquiries after tendering

an offer of employment, but the rule does not prohibit inquiries before

a job offer when the contractor becomes aware of the need for

accommodation at the pre-offer stage. OFCCP intends that its

regulations under Section 503 and VEVRAA be interpreted in a manner

which is consistent with the EEOC's interpretations of the ADA.

Accordingly, pre-offer discussion of accommodations would be

permissible under VEVRAA in the same circumstances as those in which it

would be permissible under the ADA.

The same commenter also submitted comments in response to the NPRM.

Those comments requested that OFCCP provide ``clear guidance'' as to

what is meant by ``actually taking affirmative action at the pre-offer

stage.'' Consistent with interpretations made by the EEOC under the

ADA, ``actually taking affirmative action at the pre-offer stage''

refers to an employer voluntarily using the information obtained in

response to an invitation to self-identify, to benefit special disabled

veterans. If an employer wishes to invoke this exception, it must

provide affirmative action at the pre-offer stage that necessitates the

identification of special disabled veterans. The example provided

earlier in this discussion should help to illustrate the point.

The commenter also requested ``clear guidance'' as to what is meant

by ``before the applicant begins his or her job [employment] duties.''

By this we mean that the invitation to self identify must be made

before the applicant is placed on the contractor's payroll.

Another commenter pointed out that, as proposed, the rule would

require contractors to discuss reasonable accommodation with all who

self identify as either special disabled veterans or veterans of the

Vietnam era. The commenter asserted, ``by encompassing Vietnam-era

veterans, this provision presupposes that all Vietnam-era veterans are

likely to require some form of accommodation to

[[Page 59636]]

be employable.'' The point is well taken. Reasonable accommodation is

relevant in the context of special disabled veterans, but generally not

in the context of Vietnam era veterans. We have modified the rule

accordingly, and have made corresponding modifications to the sample

invitation to self-identify found at Appendix B.

The same commenter also was concerned that self-identification,

coupled with the provision that permits an employer to ask an applicant

to demonstrate how the applicant will be able to perform job-related

functions, could result in an employer ``withdraw[ing] the job offer on

the pretense that the veteran couldn't perform some aspect of the job

when asked to ``demonstrate.'''' The commenter than asked, ``[w]ho

couldn't be deemed to fail some task they'd never done before?'

As proposed, the literal wording of the rule was ambiguous as to

whether a contractor would be permitted to require a demonstration from

both Vietnam era and special disabled veterans, or only from the

latter. The context of the proposal, specifically the reference to

inquiries that are consistent with the ADA, makes clear, however, that

our intent was to apply this standard with respect to special disabled

veterans only. We have revised the rule to clarify the point.

Turning more directly to the commenter's concern, the concept of

requiring an applicant with a known disability to demonstrate his or

her ability to perform the job is drawn directly from the ADA, and

OFCCP intends to apply it consistent with its application under the

ADA. The EEOC Guidance on this subject explains that an employer may

require a disabled applicant to demonstrate how he or she will perform

the job only when: (1) the employer could reasonably believe that the

applicant would not be able to perform a job function due to a known

disability; or (2) all applicants in the job category (i.e., including

those who are not disabled) are asked to demonstrate how they would

perform the job. Thus, an employer need not hire someone who, even with

accommodation, cannot perform the essential functions of the job. On

the other hand, an employer may not use the demonstration requirement

to discriminatorily deny an individual employment simply because that

individual is disabled.

Another commenter was concerned that the proposed restrictions on

pre-offer self-identification could preclude contractors from asking

questions about military service on employment applications or in

employment interviews. As the commenter pointed out, a normal

employment application asks about military service and the reason for

leaving or the type of discharge, and military service also is a common

topic in employment interviews. However, such questions may elicit

information that identifies an applicant as a special disabled or a

Vietnam era veteran. The commenter asserted restricting such inquiries

would require radical revision in the application process among United

States employers.

The ADA prohibits employers from asking about the existence,

nature, or severity of a disability at the pre-offer stage. The EEOC's

October 10, 1995, Enforcement Guidance on Preemployment Disability-

Related Inquiries and Medical Examinations defines such an inquiry as

one that is likely to elicit information about a disability. On the

other hand, according to the EEOC Guidance, if there are many possible

answers to a question and only some of those answers would contain

disability-related information, the question is not disability-related.

It is our intent that the VEVRAA rule be applied consistent with this

standard. Under this interpretation, it would be permissible for an

employer to inquire about an applicant's military service, including

the reason for leaving or the type of discharge. This is because the

large majority of those discharged from the military are discharged for

reasons other than medical, and even among those discharged for medical

reasons not all would qualify as special disabled veterans under VEVRAA

or as individuals with disabilities under the ADA and Section 503. If

the applicant's response indicated a discharge for medical reasons, the

employer would not be permitted to ask follow-up questions relating to

the nature or extent of the medical condition. However, if the response

caused the employer to reasonably believe that the applicant may need

an accommodation, the employer may inquire about that need.

The same commenter also expressed concern that a contractor

electing to invite individuals to self-identify at the pre-offer stage

might violate the ADA, which generally prohibits pre-offer inquiries as

to whether an individual has a disability. The commenter sought further

guidance on this issue.

As we have stated above, our intent is that this rule be applied

consistently with the ADA. The limited instances of pre-offer self-

identification permitted by the regulation should not result in

violation of the ADA. The ADA expressly does not preempt other Federal,

state or local laws that provide greater or equal protection for the

rights of individuals with disabilities than are provided in the ADA.

42 USC 12201(b). Therefore, the provision permitting pre-offer

invitations to self-identify directed to special disabled veterans,

when required by a Federal, state or local law requiring affirmative

action, would not violate the ADA. Similarly, a contractor actually

undertaking affirmative action for special disabled veterans pursuant

to VEVRAA at the pre-offer stage would not violate this provision of

the ADA.

Finally, staff from the Department's Office of the Assistant

Secretary of Labor for Veterans' Employment and Training (OASVET) have

asked that we clarify one additional point. The restrictions on the

timing of the invitation to self-identify that appear in the

regulation, are completely unrelated to pre-application recruitment

activities. Accordingly, it would not violate VEVRAA, Section 503 or

the ADA, for an employer to advertise that it encourages applicants who

are special disabled or Vietnam era veterans, or to otherwise direct

its recruitment efforts at members of those two groups.

Section 60-250.44 Required Contents of Affirmative Action Programs

The regulations being replaced today, at Sec. 60-250.6(b), specify

that ``[c]ontractors shall review their personnel processes to

determine whether their present procedures assure careful, thorough and

systematic consideration of the job qualifications' of special disabled

and Vietnam era veterans. Section 60-250.44(b) of the NPRM stated the

obligation as follows: ``[t]he contractor shall ensure that its

personnel processes provide for careful, thorough, and systematic

consideration of the job qualifications'' of special disabled and

Vietnam era veterans. One commenter felt that the duty to ``ensure'' as

stated in the NPRM required a ``different mandate'' than the duty to

``review'' as stated in the rule that was current at that time. We

disagree. When read in full context, the regulation being replaced

today requires that contractors do more than simply examine their

processes. If affirmative action is to have any meaning, it surely

requires that contractors take steps to reform those processes that,

upon review, are found not to meet the stated standard of assuring

careful, thorough and systematic consideration.

Two commenters addressed the obligation in proposed Sec. 60-

250.44(d), that contractors inquire whether an employee with a known

disability who is having difficulty performing a job is in need of

accommodation. One commenter characterized the obligation

[[Page 59637]]

as: (1) conflicting with the EEOC's guidance under the ADA which

``gives the employee primary responsibility for requesting an

accommodation''; (2) conflicting with the spirit of the ADA which

``empowers individuals with disabilities to choose to--or choose not

to--ask for help''; and (3) ``paternalistic,'' ``potentially insulting

and embarrassing to the individual,'' and liable to ``be perceived by

special disabled veterans as prejudicial, because the employer has

distinguished employees with disabilities from employees who do not''

have disabilities.

The other commenter read the provision as potentially requiring

identification of special disabled veterans prior to the job offer,

accommodation in the application process, and post-offer disability-

related questions directed to only some entering employees, all of

which the commenter thought were problematic under the ADA.

We do not share the commenters' views on this issue. Affirmative

action, of which this provision is an example, is unique to VEVRAA and

Section 503, and includes actions above and beyond those required as a

matter of nondiscrimination. Also, by specifying ``employee,'' the

provision does not conflict with the ADA restrictions relating to pre-

offer, and post-offer but pre-employment, inquiries. Moreover, the rule

does not undermine the concept of individuals with disabilities being

able to choose not to ask for help. That is, the rule requires that the

employer make inquiry, but it does not require a particular response

from the employee. Additionally, contrary to this type of employer

inquiry being prohibited by the ADA, it is permitted by the EEOC's

interpretive materials. See 29 CFR Part 1630, Appendix, Section 1630.9.

Finally, we are sensitive to the concern that employers not be

required to take actions which might be offensive to their employees

with disabilities. However, we disagree with the commenter that the

provision in question here crosses that line. It is instructive to note

that OFCCP did not receive a single objection to this provision from a

commenter that might be characterized as a veteran or an individual

with disabilities, nor from a group representing veterans or

individuals with disabilities. Similarly, OFCCP did not receive a

single objection from any of these categories of commenters when it

proposed the corresponding provision in its Section 503 NPRM. See 57 FR

48084 (October 21, 1992), corrected at 57 FR 49160 (October 30, 1992).

OFCCP has made one minor alteration to the text of Sec. 60-

250.44(d) for clarification. Language has been inserted to specify that

the obligation to provide reasonable accommodation is an element of

nondiscrimination, whereas the obligation to notify the employee of a

performance problem and inquire whether the problem is related to

disability is an element of affirmative action.

One commenter objected to the requirement in proposed Sec. 60-

250.44(e) that contractors ``develop and implement procedures to

ensure'' that employees are not harassed because of their status as

special disabled and Vietnam era veterans. The commenter felt that the

requirement was unnecessary and impractical, adding that it is almost

impossible for an employer to guarantee that an employee will not act

inappropriately. But that is not what the regulation requires. The rule

simply requires that contractors develop and implement procedures that

are designed to ensure that disabled and Vietnam era veteran employees

will not be harassed.

Proposed Sec. 60-250.44(f) required that contractors undertake

appropriate outreach and recruitment activities, and enumerated eight

suggested activities. The proposed section's introductory provision

stated that the scope of the contractor's efforts ``shall depend upon

all the circumstances,'' and that ``[i]t is not contemplated that the

contractor will necessarily undertake all the activities listed . . .

or that its activities will be limited to those listed.''

One commenter objected to proposed subsection (f)(8), which would

have provided that contractors, in making hiring decisions, should

consider special disabled and Vietnam era veterans for all available

positions for which they may be qualified, when the position(s) applied

for is unavailable. The commenter felt that ``the requirement'' is

onerous, in that it would require contractors to set up two application

processes--one for covered veterans and one for all other applicants--

and it would force contractors to review applicants' files numerous

times in an effort to consider applicants for other jobs. Paragraph

(f)(8) does not establish a ``requirement.'' As is outlined above it is

a suggested measure, which contractors may take, or not take, as

appropriate under the circumstances. Accordingly, we do not share the

commenter's concerns about the provision.

Section 60-250.44(j) of the proposal would have required that all

personnel involved in the recruitment, screening, selection, promotion,

disciplinary, and related processes be trained to ensure that the

commitments in the contractor's affirmative action program are

implemented. One commenter objected to the provision, declaring that

``[t]he proposed mandatory training requirement suggests that OFCCP

desires training above and beyond'' the current requirement. The

commenter described the requirement in effect at that time as

``employees of federal contractors are instructed on the requirements

of VEVRAA.'' However, the wording of proposed Sec. 60-250.44(j) is

virtually identical to the wording of Sec. 60-250.6(i)(3) in the

regulations being replaced today. Accordingly, no substantial change

was intended and the rule is adopted as proposed.

Subpart D--General Enforcement and Complaint Procedures

Section 60-250.60 Compliance Evaluations

As proposed, paragraph (a) of this section would have clarified

existing regulatory authority for OFCCP to conduct compliance reviews

with regard to contractors' implementation of their affirmative action

obligations, and would have provided that the review consist of ``a

comprehensive analysis and evaluation'' of all relevant practices. The

proposal was intended to make the VEVRAA provision consistent with the

corresponding provision in the Section 503 regulations. One commenter

noted that the proposal did not track a proposed revision to the

regulations implementing Executive Order 11246, under which OFCCP

proposed to supplement the ``comprehensive analysis'' approach with a

variety of alternative means of assessing a contractor's compliance

status. See proposed Sec. 60-1.20(a) at 61 FR 25516, 25523 (May 21,

1996). The commenter recommended that ``[t]he proposed Sec. 60-250.60 *

* * be modified to clarify that OFCCP is not required to conduct a

full, on-site compliance review of any contractor it selects for

review.''

Since the publication of the VEVRAA proposal, OFCCP has promulgated

a final version of its Executive Order 11246 ``compliance evaluation''

procedure. See 41 CFR 60-1.20(a) at 62 FR 44174, 44189 (August 19,

1997). As recommended by the commenter, OFCCP has decided to adopt the

compliance evaluation approach for VEVRAA as well, in lieu of the

proposed ``comprehensive analysis'' compliance review approach.

(Corresponding wording changes have been made, as appropriate,

throughout the regulations.) The new VEVRAA

[[Page 59638]]

regulatory text is virtually identical to the text of the Executive

Order regulation, except for changes necessary to reflect differences

between the two laws and their implementing regulations. This approach

will improve the efficiency of OFCCP and permit the agency to target

resources better. It will also further procedural consistency among the

laws enforced by OFCCP.

The same commenter also recommended that the regulations be changed

``to insure that OFCCP may not arbitrarily demand that a federal

contractor produce anything the agency wants, at any time it wants, at

any location it wants.'' The commenter asserted that many contractors

have faced ``seemingly endless requests for information under current

regulations,'' and that ``[c]ontractors now have no recourse when

confronted with endless requests for information.'' The commenter also

asserted that OFCCP should establish in the regulation a definite time

period within which the compliance evaluation should be completed. Such

a time limit, the commenter argued, would help both OFCCP and the

contractor to focus their efforts on supplying and reviewing definite

records, and reduce piecemeal requests.

OFCCP does not agree that the regulations should contain additional

assurances of the type requested. Under the proposed rule access is

limited to records that may be relevant to the matter under

investigation and pertinent to compliance with VEVRAA. Moreover, the

suggestion that OFCCP should be limited to one or a small number of

data requests ignores the reality of conducting a law enforcement

investigation. The initial data request often is intentionally

restricted in scope, to minimize the burden on the responding party.

However, if the materials provided in response to the initial request

indicate potential problem areas, it is perfectly reasonable and

appropriate for the agency to follow up with supplementary requests.

Several rounds of supplementary requests may be necessary before the

agency can definitively conclude that a violation did, or did not,

occur. Contractors may expect that the currently prescribed time frames

for completing compliance evaluations and reviews will continue.

However, in OFCCP's view such time frames are more appropriately

included in a compliance manual than in implementing regulations.

In addition, we have revised subsection (c) to reflect the terms of

a Memorandum of Understanding entered into on May 29, 1997, between

OFCCP and OASVET. The proposal provided that during a compliance review

OFCCP would verify whether the contractor has filed its annual

Veterans' Employment Report (VETS-100 Report) with OASVET and that

OFCCP would notify OASVET if the contractor has not filed. We have

added to the regulation a provision under which, if the contractor has

not filed its report, OFCCP will request a copy from the contractor. If

the contractor fails to provide a copy of the report to OFCCP, OFCCP

will notify OASVET.

Section 60-250.61 Complaint procedures

Two commenters opposed our proposal under Sec. 60-250.61(a) that

the time for filing a complaint with OFCCP be expanded from 180 to 300

days after the alleged violation. Both felt that the current 180-day

rule is more in keeping with the standard under Title VII and the ADA,

both of which require filing within 180 days in non-deferral

jurisdictions and 300 days in deferral jurisdictions. Additionally, one

of the commenters argued that the 300-day filing period in deferral

jurisdictions was developed for the convenience of the states, not the

Federal enforcement agencies.

OFCCP recently considered this question in detail in conjunction

with the preparation of the Section 503 final rule. In that rule we

adopted a 300-day standard, based upon a desire to establish a uniform

national standard that would be at least as long as the complaint

filing period under the ADA. We elected not to adopt the split 180/300-

day limit applied under the ADA because we are not statutorily bound to

do so (as is the EEOC under Title VII and the ADA), and because the

lack of a frequently updated and readily available list of deferral

jurisdictions could make it difficult for complainants and contractors

to know whether the 180 or the 300-day limit applies in any particular

case. In line with OFCCP's approach of applying consistent procedures

under Section 503 and VEVRAA wherever possible, we hereby adopt the

proposed rule's standard that complaints must be filed within 300 days.

Section 60-250.61(b)(2) Contents of Complaints--Third Party Complaints

One commenter objected to this paragraph of the proposal, which

provided in part that a complaint filed by an authorized representative

need not identify by name the person on whose behalf the complaint was

filed. The purpose of this provision is to help prevent retaliation

against persons seeking to exercise their rights under VEVRAA. The

commenter asserted that in some cases contractors would have difficulty

responding to the allegations of a complaint without knowing the

identity of the person on whose behalf it is filed.

In many cases it will not be necessary to disclose the individual's

identity to enable the contractor to respond effectively. For example,

as the commenter acknowledged, where the complaint alleges a broad

contractor policy or practice, the contractor will be able to respond

fully without knowing the name(s) of the person(s) on whose behalf the

complaint was filed. However, we agree that where the complaint

involves a practice with limited applicability or an isolated act of

discrimination, it may not be possible to protect the individual's

confidentiality. Therefore, the rule reflects that confidentiality will

be protected where possible, given the facts and circumstances in the

complaint.

Section 60-250.66 Sanctions and Penalties

Section 60-250.66(c) Debarment

The proposed paragraph would have authorized OFCCP to impose fixed-

term debarments. One commenter objected to the fixed-term debarment

concept. The commenter was concerned that fixed-term debarment is too

harsh a measure, especially if it is used in response to what the

commenter termed ``paper'' violations, which the commenter

characterized as violations of recordkeeping or affirmative action

requirements which do not involve discrimination. OFCCP does not view

fixed-term debarments as too harsh a measure, and OFCCP does not intend

to seek a fixed term debarment for minor, technical violations of the

law. Explicit regulatory authority to impose debarment for a minimum

fixed-term is necessary to ensure the continued future compliance of

some contractors.

OFCCP believes the fixed-term debarment sanction will be

particularly effective in encouraging compliance among the recalcitrant

contractors who repeatedly break their promises of future compliance

with respect to affirmative action and recordkeeping requirements.

OFCCP views affirmative action and recordkeeping requirements as

fundamental to VEVRAA compliance. These requirements provide the

foundation for the contractor's affirmative action efforts and provide

the basis for monitoring the contractor's compliance by both the

contractor and OFCCP.

[[Page 59639]]

The regulation being replaced today (at Sec. 60-250.50) requires a

showing that a debarred contractor will carry out employment policies

and practices in compliance with VEVRAA and its regulations as one of

the conditions of reinstatement. OFCCP traditionally has accepted a

contractor's promise of future compliance as sufficient to meet this

requirement. Unfortunately, OFCCP has found that, for some contractors,

a promise is not enough. The sanction of debarment for a fixed-term of

not less than six months but no more than three years establishes a

minimum trial period during which a contractor can demonstrate its

commitment and ability to establish personnel practices that will

ensure continuing compliance with the contractor's VEVRAA obligations.

See, e.g., OFCCP v. Disposable Safety Wear, 92-OFC-11 (Decision and

Final Administrative Order of the Secretary of Labor, September 29,

1992). The express recognition of fixed-term debarment in the

regulations is designed to put contractors on notice that an empty

promise of future compliance will not be a sufficient premise for

continued contracting with the Federal Government. Express regulatory

recognition of the sanction of fixed-term debarment will strengthen the

VEVRAA enforcement scheme by deterring contractors from engaging in

violations ``based on a cold weighing of the costs and benefits of

noncompliance.'' Janik Paving & Construction v. Brock, 828 F.2d 84 (2d

Cir. 1987). Accordingly, OFCCP has determined to retain in this final

rule the authority to impose fixed-term debarments.

Subpart E--Ancillary Matters

Section 60-250.80 Recordkeeping

Under the regulation being replaced today (Sec. 60-250.52(a)),

contractors are required to maintain for one year records relating to

complaints and actions taken by the contractor in connection with such

complaints. Paragraph (a) of proposed Sec. 60-250.81 would have revised

this obligation in two ways. First, it would have made the record

retention obligation applicable to any personnel or employment record

made or kept by the contractor, and set out a listing of examples of

the types of records that must be retained. Second, it would have

extended the required record retention period from one to two years for

larger contractors. In this context, larger contractors are those that

have 150 or more employees and a Government contract of $150,000 or

more. When a contractor has been notified that a complaint has been

filed, a compliance evaluation has been initiated or an enforcement

action has been commenced, the contractor would be required to preserve

all relevant personnel records until the final disposition of the

action. Three comments were received on proposed paragraph (a).

Two commenters criticized the two-year record retention period

proposed for larger contractors. The commenters questioned why OFCCP

should need to review two years' worth of records, when complaints must

be filed within 300 days and when a one-year retention period applies

under the ADA and Title VII. As one commenter put it, ``[t]he

responsibility and authority of OFCCP to investigate complaints under

VEVRAA is no greater or more encompassing than EEOC's responsibility to

investigate complaints under the ADA. Similarly, the data needed by

OFCCP to accomplish this purpose is no greater than that of the EEOC.''

One of the commenters also said that OFCCP had ``significantly

underestimate[d]'' the administrative and storage costs associated with

maintaining an additional year of records.

These comments incorrectly minimize the differences in the

enforcement schemes of EEOC and OFCCP. EEOC's enforcement of Title VII

and the ADA is triggered exclusively by charges, which must be filed

within 180 days (or, in deferral jurisdictions, 300 days) of an alleged

violation. EEOC's one-year retention period is designed to ensure that

relevant records are not discarded before the expiration of the

complaint filing period. In contrast, OFCCP's evaluations of

contractors' compliance with VEVRAA cover a two-year period. The

agency's policy and practice are to examine the contractor's personnel

policies and activities for the two years preceding the initiation of

the evaluation, and to assess liability for discriminatory practices

dating back two years. The two-year record retention period provides

greater assurance that relevant records will be available to OFCCP

during its compliance evaluations.

The commenter who asserted that OFCCP has underestimated the

burdens on contractors provided no data or other support for its

assertion. OFCCP continues to believe, as stated in the preamble to the

NPRM, that the recordkeeping provisions of this proposed rule are

consistent with those contained in the Section 503 final rule and

therefore do not result in recordkeeping burdens beyond those under the

Section 503 rule.

One commenter raised questions regarding the record retention

obligations of contractors who are at or near the thresholds that

trigger the different retention periods. Specifically, the commenter

asked what would happen if the employment levels or contract values

change so that they exceed or fall below the 150 employees/$150,000

thresholds during the course of the contract. A change in status

relating to either threshold would affect the record retention

obligation. If the number of employees should fall below 150 or if the

contractor no longer has a contract of at least $150,000, the

contractor would not be required to retain employment records for two

years. The requirement to keep records for two years would become

effective again on the date that the contractor met the thresholds of

150 employees and a contract of $150,000. The record retention

requirement, however, would not be applied retroactively, i.e., the

change from one year to two years would be phased in day-by-day. See

the discussion later in this section of the preamble regarding the

obligation to maintain records once a compliance evaluation has

commenced.

One commenter contended that the proposed regulatory language was

inadequate because it failed to answer contractors' recurrent questions

regarding what records must be kept. The commenter urged that the

regulations should include guidance on: (1) who is an ``applicant'' for

the purposes of the record retention requirement; and (2) whether and

to what extent the record retention requirement applied when a

contractor used electronic bulletin boards and the Internet as

recruitment sources.

OFCCP has issued the following guidance on the meaning of the term

``applicant'' under Executive Order 11246:

The precise definition of the term ``applicant'' depends upon [a

contractor's] recruitment and selection procedures. The concept of

an applicant is that of a person who has indicated an interest in

being considered for hiring, promotion, or other employment

opportunities. This interest might be expressed by completing an

application form, or might be expressed orally, depending upon the

[contractor's] practice. Question and Answer No. 15, Adoption of

Questions and Answers to Clarify and Provide a Common Interpretation

of the Uniform Guidelines on Employee Selection Procedures (44 F.R.

11996, 11998 (March 2, 1979)).

The Uniform Guidelines on Employee Selection Procedures do not apply to

VEVRAA. See Sec. 60-250.21(g)(2) of this rule. Nevertheless, the

statement quoted above represents a reasoned, balanced approach to the

question of who is an

[[Page 59640]]

applicant under VEVRAA, and hereby is adopted for that purpose.

Accordingly, whether an individual will be considered an applicant

turns on the employee selection procedures designed and utilized by the

contractor. OFCCP is studying the range of ways contractors are

utilizing electronic media in their employee selection processes and

intends to issue guidance responding to questions most frequently asked

by contractors regarding this issue.

One commenter expressed disapproval of the requirement that

contractors retain all relevant records once a compliance review,

complaint investigation or enforcement action has been initiated. This

commenter contended that the requirement was burdensome and

inequitable, particularly because the regulations lack a limitation on

the period of time in which OFCCP must complete a compliance review.

The purpose of this record retention requirement is to ensure that

OFCCP can obtain all relevant documents during a compliance evaluation,

complaint investigation or enforcement action. OFCCP appreciates the

commenter's concerns about the timely completion of compliance

evaluations but, as discussed earlier in this preamble, disagrees with

the assertion that the schedule should be codified in the regulations.

One commenter, a Federal agency, said that the recordkeeping

requirements increase both the number of contractors and subcontractors

that must maintain records, and the recordkeeping burden on each

contractor and subcontractor. As a result, the commenter recommended

that the increased burdens be submitted for approval to the Office of

Management and Budget under the Paperwork Reduction Act, and that a

Regulatory Flexibility Act analysis be conducted to address asserted

increases in the burden on small businesses.

The assertion that the rule increases the number of contractors and

subcontractors that must maintain records simply is incorrect. Coverage

thresholds are not being altered in any way. Moreover, as was stated in

the preamble to the NPRM, the recordkeeping provisions of this rule are

consistent with those already being applied under Section 503;

accordingly, this rule will not impose new recordkeeping burdens.

Nevertheless, we have submitted the requirements to the Office of

Management and Budget as is required under the Paperwork Reduction Act.

Subsection (c) of the rule states that the recordkeeping

requirements shall apply only to records made or kept on or after the

date on which OFCCP publishes in the Federal Register notice that the

Office of Management and Budget has cleared the requirements. When

OFCCP receives the clearance from OMB under the Paperwork Reduction Act

of 1995, which it expects to occur approximately 60 days after

publication of this final rule, we will revise subsection (c) to

specify the actual date on which the recordkeeping requirements take

effect.

Finally, in order that the section numbers in the VEVRAA rule

correspond to the numbers of counterpart regulatory provisions in the

Section 503 rules, we have renumbered this section as Sec. 60-250.80.

The section number in the NPRM was Sec. 60-250.81.

Except as mentioned above, the final rule adopts the record

retention provisions proposed in the NPRM without change.

Section 60-250.81 Access to Records

Each contractor is required to permit OFCCP access during normal

business hours to its places of business, books, records and accounts

for the purpose of investigating compliance with VEVRAA. OFCCP proposed

to add computerized records to the list of items which the contractor

must make available for inspection by OFCCP.

One commenter objected to the proposal regarding access to

computerized records. The commenter contended that the proposal would

allow unlimited access to sensitive information in a contractors' human

resource files, regardless of its relevancy to the contractor's

compliance with VEVRAA. The commenter requested that OFCCP modify the

proposal to clarify that contractors need only provide ``reasonable''

access, that data requests would be limited in scope to information

necessary to address specific compliance questions raised during the

evaluation, and that contractors would not be required to reprogram

their computers to comply with an OFCCP request. The commenter also

recommended that contractors be afforded an appeal process for use when

they believe a data request is unreasonable.

OFCCP's primary interest is that it have access during an

investigation to relevant data that already exists, whether in

computerized or other form. Accordingly, OFCCP intends to apply the

same standards for access to computerized records that it always has

applied regarding paper records.

The proposed rule would not have expanded the scope of records that

must be made available to OFCCP. Contractors already must give OFCCP

access to their ``books, records and accounts'' under the previous

regulations. The proposed regulation simply would have clarified that

``books, records and accounts'' includes those maintained in

computerized form.

The concern that the provision would permit, if not encourage,

unfettered access to confidential commercial proprietary data or

irrelevant information, is unjustified in OFCCP's view. Under the

proposed rule, as under the current regulation, access is limited to

records that may be relevant to the matter under investigation and

pertinent to compliance with VEVRAA. A further safeguard against broad

requests for irrelevant data is the provision that information obtained

under this regulation may be used only in connection with the

administration of VEVRAA and in furtherance of the purposes of the Act.

Incorporating an appeal process for use by contractors when they

disagree with a data request into the VEVRAA regulations at this time

would result in procedural inconsistencies between VEVRAA and Section

503, which in our view would not be in the best interest of either

contractors or OFCCP. Accordingly, OFCCP is considering this issue for

further action in the future.

The regulation is adopted in the final rule as proposed in the

NPRM, except that in order that the section numbers in the VEVRAA rule

correspond to the numbers of counterpart regulatory provisions in the

Section 503 rules, we have renumbered this section as Sec. 60-250.81.

The section number in the NPRM was Sec. 60-250.82.

Section 60-250.82 Labor Organizations and Recruiting and Training

Agencies

In order that the section numbers in the VEVRAA rule correspond to

the numbers of counterpart regulatory provisions in the Section 503

rules, we have renumbered this section as Sec. 60-250.82. The section

number in the NPRM was Sec. 60-250.83.

Section 60-250.83 Rulings and interpretations

In order that the section numbers in the VEVRAA rule correspond to

the numbers of counterpart regulatory provisions in the Section 503

rules, we have renumbered this section as Sec. 60-250.83. The section

number in the NPRM was Sec. 60-250.84.

Section 60-250.84 Responsibilities of Local Employment Service Offices

This section, which was numbered Sec. 60-250.80 in the NPRM, is

[[Page 59641]]

renumbered as Sec. 60-250.84. Also, the title of the section, and

corresponding text within the section, have been amended to reflect the

term ``local employment service office.''

Appendix B--Sample Invitation to Self-Identify

Proposed Appendix B would have contained a sample format that

contractors could use to satisfy their obligation under Sec. 60-250.42

to invite applicants to identify themselves as being covered under the

Act and wishing to benefit under the contractor's affirmative action

program. Paragraph d of the proposed sample invitation would have

informed the special disabled veteran applicant that self-

identification would assist the contractor in making accommodations to

the individual's disability, and then would have suggested that the

contractor insert a brief provision summarizing the relevant portion of

its affirmative action program.

A commenter suggested that it would be helpful to include in

paragraph d of the Appendix a cross reference to the relevant

subsection of Sec. 60-250.44. The implication of the comment is that

Sec. 60-250.44 contains a particular provision which details what

should be inserted in the invitation. That is not the case. Each

contractor's approach to affirmative action for special disabled

veterans, and each affirmative action program, is different; that is,

each is tailored to the contractor's unique circumstances. The

contractor should insert into its invitation information about its

affirmative action efforts that might be of benefit to covered

veterans.

As noted above, we have modified Appendix B to reflect comments

relating to Sec. 60-250.42. Specifically, consistent with the revision

to the regulation that permits contractors to invite Vietnam era

veterans and special disabled veterans to self identify at different

stages in the employment process, we have modified the Appendix so that

it can be used in a way that best fits the contractor's actual

practices relating to the timing of invitations to the two categories

of veterans. Further, we have modified the Appendix, in both content

and format, to enhance the user's understanding of whether particular

portions of the invitation apply to special disabled veterans, Vietnam

era veterans, or both.

Appendix C--Review of Personnel Processes

Proposed Appendix C would have set out an example of an appropriate

set of procedures that contractors could use to facilitate a review by

the contractor and the Government of the contractor's implementation of

its duty to evaluate its personnel processes pursuant to proposed

Sec. 60-250.44(b). (Section 60-250.44(b) requires the contractor to

ensure that its personnel processes provide for careful consideration

of the qualifications of applicants and employees, who are known to be

special disabled veterans or veterans of the Vietnam era, for

employment opportunities.)

Paragraphs 3 and 4 of proposed Appendix C would have instructed

contractors to attach or include a description of accommodations

considered or used for special disabled veterans to application forms

or personnel records. The EEOC commented that in most instances

descriptions of accommodations constitute medical information that must

be maintained in separate files and treated as confidential medical

records. Accordingly, the EEOC recommended that paragraphs 3 and 4 be

changed to require contractors to maintain descriptions of

accommodations considered or used in separate confidential medical

files.

We agree with the EEOC's recommendation and believe it is

consistent with Sec. 60-250.23(d) of this rule. Accordingly, we have

modified paragraphs 3 and 4 consistent with the comment. Moreover, in

order to maintain consistency between the VEVRAA and Section 503 rules,

in a companion document published today we also are modifying the

corresponding Appendix C to 41 CFR Part 60-741.

General Comments

Several comments addressed the regulatory proposal in general,

rather than focusing on any particular section of the NPRM.

One commenter questioned the continued need for VEVRAA, stating

that he did not ``think that any employment laws or regulations are

necessary any more pertaining to the Vietnam war'' and that the ADA

``should be sufficient to cover disabled vets.'' The commenter also

asserted that ``[c]omplying with the paper requirements of this Act are

costly, time consuming, and difficult to administer'' and that laws

like VEVRAA ``add an artificial cost to our products which puts U.S.

business at a disadvantage when competing with foreign companies.''

OFCCP believes that VEVRAA serves a valuable purpose in ensuring

that those who served their country are given opportunity to

participate in our economic system. Moreover, we note that at least

four times within the past seven years the Congress has acted to

reauthorize VEVRAA or expand its reach. See, e.g., Section 505 of P.L.

104-275, Section 702 of P.L. 103-446, Section 502 of P.L. 102-568, and

Section 1 of P.L. 102-16. OFCCP remains mindful, however, of concerns

about compliance burdens. OFCCP seeks to minimize the burdens

associated with compliance with VEVRAA by administering the statute, to

the extent reasonable, in tandem with the agency's administration of

Section 503.

One commenter suggested that publication of a final rule by OFCCP

would somehow violate ``due process'' because interested parties were

not given sufficient notice of assertedly ``massive, substantive

revisions'' and a ``total rewrite'' of the regulations. The commenter

supports its point by referring to two semi-annual regulatory agendas

in which OFCCP characterized the regulatory action under VEVRAA as

``nonsignificant,'' and by claiming that the published agendas for two

meetings of a Department of Labor Advisory Committee on Veterans'

Employment and Training did not note anything about the alleged

``extensive rewrite of 41 CFR 60-250.''

OFCCP disagrees with the commenter and believes that it has

followed all applicable rulemaking procedures. As is required under the

Administrative Procedure Act, OFCCP published the proposed rule for

public notice and comment. Despite an extended comment period of more

than three months' duration, only a small number of comments were

submitted on the proposal.

Moreover, OFCCP's designation of the regulatory action as

``nonsignificant'' is a term of art, referring to the categories used

in Executive Order 12866, rather than an indication of the importance

of the rule to OFCCP or to the regulated community. Under Executive

Order 12866, a ``significant'' regulatory action is one that is likely

to result in a rule that may: (1) Have an annual effect on the economy

of $100 million or more or adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities; (2) create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients

thereof; or (4) raise novel legal or policy issues arising out of legal

mandates, the

[[Page 59642]]

President's priorities, or the principles set forth in Executive Order

12866. OFCCP's VEVRAA proposal clearly did not meet any of the

standards of a ``significant'' action. Accordingly, OFCCP's designation

of the action as ``nonsignificant'' was entirely appropriate, and was

entirely consistent with other agencies' entries in the semiannual

regulatory agendas.

Finally, OFCCP also does not agree with the commenter's

characterization of this rule as containing extensive substantive

revisions of the VEVRAA regulations. To be certain, we have changed the

format of the rules. We also have codified in these regulations some

concepts and procedures that heretofore existed only in judicial

rulings and OFCCP practice. However, the fundamental principles--

concepts such as the equal opportunity/affirmative action clause to be

inserted in all nonexempt contracts, the contents of written

affirmative action programs, the coverage thresholds for the AAP

requirement, and the complaint and enforcement procedures--remain

largely unchanged in this rule.

Regulatory Procedures

Executive Order 12866

The Department is issuing this rule in conformance with Executive

Order 12866. This rule has been determined not to be significant for

purposes of Executive Order 12866 and therefore need not be reviewed by

OMB. This rule does not meet the criteria of Section 3(f)(1) of

Executive Order 12866 and therefore the information enumerated in

Section 6(a)(3)(C) of that Order is not required.

This conclusion is based on the fact that this rule does not

substantively change the existing obligation of Federal contractors to

apply a policy of nondiscrimination and affirmative action in their

employment of qualified special disabled veterans and veterans of the

Vietnam era. For instance, although the rule generally conforms the

existing Section 4212 regulations' nondiscrimination provisions to the

Section 503 final rule published by the OFCCP, it does not

significantly alter the substance of the existing nondiscrimination

provisions.

Regulatory Flexibility Act

The rule clarifies existing requirements, and does not

substantively change existing obligations, for Federal contractors.

Accordingly, we certify that the rule will not have a significant

economic impact on a substantial number of small business entities.

Therefore, a regulatory flexibility analysis under the Regulatory

Flexibility Act is not required.

Unfunded Mandates Reform

Executive Order 12875--This rule will not create an unfunded

Federal mandate upon any State, local or tribal government.

Unfunded Mandates Reform Act of 1995--This rule will not include

any Federal mandate that may result in increased expenditures by State,

local, and tribal governments, in the aggregate, of $100 million or

more, or increased expenditures by the private sector of $100 million

or more.

Paperwork Reduction Act

The information collection requirements under the VEVRAA

regulations being replaced today were covered by OMB control numbers

1215-0072 and 1215-0163. The new recordkeeping requirements contained

in this final rule have been submitted to the Office of Management and

Budget (OMB) for clearance under the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.). These new recordkeeping requirements are not

effective until OFCCP displays currently valid OMB control numbers.

When OMB completes its review OFCCP will publish a notice in the

Federal Register regarding the control numbers.

In the Preamble to the NPRM OFCCP explained that the rule: would

extend the current one-year record retention period to two years (for

larger contractors) and make the retention obligation applicable to a

broader range of records; require that, for purposes of

confidentiality, medical information obtained regarding the medical

condition or history of any applicant or employee be collected and

maintained on separate forms and in separate medical files; and require

those contractors who, for affirmative action purposes, choose to

invite applicants to identify themselves as special disabled veterans

or veterans of the Vietnam era to maintain a separate file on such

applicants and employees.

OFCCP stated that the recordkeeping provisions of the rule were

consistent with those contained in the Section 503 final rule.

Therefore, OFCCP stated, although the recordkeeping provisions would be

more expansive than those in the current VEVRAA regulations, they would

not result in increased recordkeeping burdens.

OFCCP invited the public to comment on the accuracy of the agency's

estimates regarding the burdens posed by the proposed revisions to the

information collection requirements, and to suggest ways of minimizing

the burden and enhancing the quality and utility of the information

collected. None of the commenters responded to this request for

comments. Several commenters, however, expressed general opinions about

the burdens associated with the record retention requirements in their

comments directed toward particular regulatory provisions. We have

addressed those comments in our discussion of those regulatory

provisions. After careful consideration of the comments, OFCCP

continues to believe that the recordkeeping provisions in this rule

will not result in increased burdens.

List of Subjects in 41 CFR Part 60-250

Administrative practice and procedure, Civil rights, Employment,

Equal employment opportunity, Government contracts, Government

procurement, Individuals with disabilities, Investigations, Reporting

and recordkeeping requirements, Veterans.

Signed at Washington, DC, this 26th day of October, 1998.

Alexis M. Herman,

Secretary of Labor.

Bernard E. Anderson,

Assistant Secretary for Employment Standards.

Shirley J. Wilcher,

Deputy Assistant Secretary for Federal Contract Compliance.

Accordingly, with respect to the rule amending 41 CFR Chapter 60

published on December 30, 1980 (45 FR 86216), which was delayed

indefinitely at 46 FR 42865, the revision of Part 60-250 is withdrawn,

and in Part 60-30, all references to Section 402 of the Vietnam Era

Veterans' Readjustment Assistance Act are withdrawn; and, under

authority of 38 U.S.C. 4212, Title 41 of the Code of Federal

Regulations, Chapter 60 is amended by revising part 60-250 to read as

follows:

PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS

OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED

VETERANS AND VETERANS OF THE VIETNAM ERA

Subpart A--Preliminary Matters, Equal Opportunity Clause

Sec.

60-250.1 Purpose, applicability and construction.

60-250.2 Definitions.

60-250.3 [Reserved]

60-250.4 Coverage and waivers.

60-250.5 Equal opportunity clause.

[[Page 59643]]

Subpart B--Discrimination Prohibited

60-250.20 Covered employment activities.

60-250.21 Prohibitions.

60-250.22 Direct threat defense.

60-250.23 Medical examinations and inquiries.

60-250.24 Drugs and alcohol.

60-250.25 Health insurance, life insurance and other benefit plans.

Subpart C--Affirmative Action Program

60-250.40 Applicability of the affirmative action program

requirement.

60-250.41 Availability of affirmative action program.

60-250.42 Invitation to self-identify.

60-250.43 Affirmative action policy.

60-250.44 Required contents of affirmative action programs.

Subpart D--General Enforcement and Complaint Procedures

60-250.60 Compliance evaluations.

60-250.61 Complaint procedures.

60-250.62 Conciliation agreements and letters of commitment.

60-250.63 Violation of conciliation agreements and letters of

commitment.

60-250.64 Show cause notices.

60-250.65 Enforcement proceedings.

60-250.66 Sanctions and penalties.

60-250.67 Notification of agencies.

60-250.68 Reinstatement of ineligible contractors.

60-250.69 Intimidation and interference.

60-250.70 Disputed matters related to compliance with the Act.

Subpart E--Ancillary Matters

60-250.80 Recordkeeping.

60-250.81 Access to records.

60-250.82 Labor organizations and recruiting and training agencies.

60-250.83 Rulings and interpretations.

60-250.84 Responsibilities of local employment service offices.

60-250.85 Effective date.

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

Reasonable Accommodation

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

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

Authority: 29 U.S.C 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3

CFR, 1971-1975 Comp., p. 841).

Subpart A--Preliminary Matters, Equal Opportunity Clause

Sec. 60-250.1 Purpose, applicability and construction.

(a) Purpose. The purpose of the regulations in this part is to set

forth the standards for compliance with the Vietnam Era Veterans'

Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or

VEVRAA), which requires Government contractors and subcontractors to

take affirmative action to employ and advance in employment qualified

special disabled veterans and veterans of the Vietnam era.

(b) Applicability. This part applies to all Government contracts

and subcontracts of $10,000 or more for the purchase, sale or use of

personal property or nonpersonal services (including construction):

Provided, That subpart C of this part applies only as described in

Sec. 60-250.40(a). Compliance by the contractor with the provisions of

this part will not necessarily determine its compliance with other

statutes, and compliance with other statutes will not necessarily

determine its compliance with this part.

(c) Construction--(1) In general. The Interpretive Guidance on

Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101,

et seq.) set out as an appendix to 29 CFR Part 1630 issued pursuant to

Title I may be relied upon for guidance in interpreting the parallel

provisions of this part.

(2) Relationship to other laws. This part does not invalidate or

limit the remedies, rights, and procedures under any Federal law or the

law of any state or political subdivision that provides greater or

equal protection for the rights of special disabled veterans or

veterans of the Vietnam era as compared to the protection afforded by

this part. It may be a defense to a charge of violation of this part

that a challenged action is required or necessitated by another Federal

law or regulation, or that another Federal law or regulation prohibits

an action (including the provision of a particular reasonable

accommodation) that would otherwise be required by this part.

Sec. 60-250.2 Definitions.

(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act

of 1974, as amended, 38 U.S.C. 4212.

(b) Equal opportunity clause means the contract provisions set

forth in Sec. 60-250.5, ``Equal opportunity clause.''

(c) Secretary means the Secretary of Labor, United States

Department of Labor, or his or her designee.

(d) Deputy Assistant Secretary means the Deputy Assistant Secretary

for Federal Contract Compliance of the United States Department of

Labor, or his or her designee.

(e) Government means the Government of the United States of

America.

(f) United States, as used in this part, shall include the several

States, the District of Columbia, the Virgin Islands, the Commonwealth

of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern

Mariana Islands, and Wake Island.

(g) Recruiting and training agency means any person who refers

workers to any contractor, or who provides or supervises apprenticeship

or training for employment by any contractor.

(h) Contract means any Government contract or subcontract.

(i) Government contract means any agreement or modification thereof

between any contracting agency and any person for the purchase, sale or

use of personal property or nonpersonal services (including

construction). The term Government contract does not include agreements

in which the parties stand in the relationship of employer and

employee, and federally assisted contracts.

(1) Modification means any alteration in the terms and conditions

of a contract, including supplemental agreements, amendments and

extensions.

(2) Contracting agency means any department, agency, establishment

or instrumentality of the United States, including any wholly owned

Government corporation, which enters into contracts.

(3) Person, as used in this paragraph (i) and paragraph (l) of this

section, means any natural person, corporation, partnership or joint

venture, unincorporated association, state or local government, and any

agency, instrumentality, or subdivision of such a government.

(4) Nonpersonal services, as used in this paragraph (i) and

paragraph (l) of this section, includes, but is not limited to, the

following: Utility, construction, transportation, research, insurance,

and fund depository.

(5) Construction, as used in this paragraph (i) and paragraph (l)

of this section, means the construction, rehabilitation, alteration,

conversion, extension, demolition, or repair of buildings, highways, or

other changes or improvements to real property, including facilities

providing utility services. The term also includes the supervision,

inspection, and other on-site functions incidental to the actual

construction.

(6) Personal property, as used in this paragraph (i) and paragraph

(l) of this section, includes supplies and contracts for the use of

real property (such as lease arrangements), unless the contract for the

use of real property itself constitutes real property (such as

easements).

(j) Contractor means, unless otherwise indicated, a prime

contractor or subcontractor holding a contract of $10,000 or more.

(k) Prime contractor means any person holding a contract of $10,000

or

[[Page 59644]]

more, and, for the purposes of subpart D of this part, ``General

Enforcement and Complaint Procedures,'' includes any person who has

held a contract subject to the Act.

(l) Subcontract means any agreement or arrangement between a

contractor and any person (in which the parties do not stand in the

relationship of an employer and an employee):

(1) For the purchase, sale or use of personal property or

nonpersonal services (including construction) which, in whole or in

part, is necessary to the performance of any one or more contracts; or

(2) Under which any portion of the contractor's obligation under

any one or more contracts is performed, undertaken, or assumed.

(m) Subcontractor means any person holding a subcontract of $10,000

or more and, for the purposes of subpart D of this part, ``General

Enforcement and Complaint Procedures,'' any person who has held a

subcontract subject to the Act.

(n)(1) Special disabled veteran means:

(i) A veteran who is entitled to compensation (or who but for the

receipt of military retired pay would be entitled to compensation)

under laws administered by the Department of Veterans Affairs for a

disability:

(A) Rated at 30 percent or more; or

(B) Rated at 10 or 20 percent in the case of a veteran who has been

determined under 38 U.S.C. 3106 to have a serious employment handicap;

or

(ii) A person who was discharged or released from active duty

because of a service-connected disability.

(2) Serious employment handicap, as used in paragraph (n)(1) of

this section, means a significant impairment of a veteran's ability to

prepare for, obtain, or retain employment consistent with such

veteran's abilities, aptitudes and interests.

(o) Qualified special disabled veteran means a special disabled

veteran who satisfies the requisite skill, experience, education and

other job-related requirements of the employment position such veteran

holds or desires, and who, with or without reasonable accommodation,

can perform the essential functions of such position.

(p) Veteran of the Vietnam era means a person who:

(1) Served on active duty for a period of more than 180 days, and

was discharged or released therefrom with other than a dishonorable

discharge, if any part of such active duty occurred:

(i) In the Republic of Vietnam between February 28, 1961, and May

7, 1975; or

(ii) Between August 5, 1964, and May 7, 1975, in all other cases;

or

(2) Was discharged or released from active duty for a service-

connected disability if any part of such active duty was performed:

(i) In the Republic of Vietnam between February 28, 1961, and May

7, 1975; or

(ii) Between August 5, 1964, and May 7, 1975, in all other cases.

(q) Essential functions--(1) In general. The term essential

functions means fundamental job duties of the employment position the

special disabled veteran holds or desires. The term essential functions

does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several

reasons, including but not limited to the following:

(i) The function may be essential because the reason the position

exists is to perform that function;

(ii) The function may be essential because of the limited number of

employees available among whom the performance of that job function can

be distributed; and/or

(iii) The function may be highly specialized so that the incumbent

in the position is hired for his or her expertise or ability to perform

the particular function.

(3) Evidence of whether a particular function is essential

includes, but is not limited to:

(i) The contractor's judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or

interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the

function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

(r) Reasonable accommodation--(1) The term reasonable accommodation

means:

(i) Modifications or adjustments to a job application process that

enable a qualified applicant who is a special disabled veteran to be

considered for the position such applicant desires; 1 or

---------------------------------------------------------------------------

\1\ A contractor's duty to provide a reasonable accommodation

with respect to applicants who are special disabled veterans is not

limited to those who ultimately demonstrate that they are qualified

to perform the job in issue. Special disabled veteran applicants

must be provided a reasonable accommodation with respect to the

application process if they are qualified with respect to that

process (e.g., if they present themselves at the correct location

and time to fill out an application).

---------------------------------------------------------------------------

(ii) Modifications or adjustments to the work environment, or to

the manner or circumstances under which the position held or desired is

customarily performed, that enable a qualified special disabled veteran

to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable the contractor's

employee who is a special disabled veteran to enjoy equal benefits and

privileges of employment as are enjoyed by the contractor's other

similarly situated employees who are not special disabled veterans.

(2) Reasonable accommodation may include but is not limited to:

(i) Making existing facilities used by employees readily accessible

to and usable by special disabled veterans; and

(ii) Job restructuring; part-time or modified work schedules;

reassignment to a vacant position; acquisition or modifications of

equipment or devices; appropriate adjustment or modifications of

examinations, training materials, or policies; the provision of

qualified readers or interpreters; and other similar accommodations for

special disabled veterans.

(3) To determine the appropriate reasonable accommodation it may be

necessary for the contractor to initiate an informal, interactive

process with the qualified special disabled veteran in need of the

accommodation.2 This process should identify the precise

limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations. (Appendix A of

this part provides guidance on a contractor's duty to provide

reasonable accommodation.)

---------------------------------------------------------------------------

\2\ Contractors must engage in such an interactive process with

a special disabled veteran, whether or not a reasonable

accommodation ultimately is identified that will make the person a

qualified individual. Contractors must engage in the interactive

process because, until they have done so, they may be unable to

determine whether a reasonable accommodation exists that will result

in the person being qualified.

---------------------------------------------------------------------------

(s) Undue hardship--(1) In general. Undue hardship means, with

respect to the provision of an accommodation, significant difficulty or

expense incurred by the contractor, when considered in light of the

factors set forth in paragraph (s)(2) of this section.

(2) Factors to be considered. In determining whether an

accommodation would impose an undue hardship on the contractor, factors

to be considered include:

(i) The nature and net cost of the accommodation needed, taking

into consideration the availability of tax

[[Page 59645]]

credits and deductions, and/or outside funding;

(ii) The overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation, the number

of persons employed at such facility, and the effect on expenses and

resources;

(iii) The overall financial resources of the contractor, the

overall size of the business of the contractor with respect to the

number of its employees, and the number, type and location of its

facilities;

(iv) The type of operation or operations of the contractor,

including the composition, structure and functions of the work force of

such contractor, and the geographic separateness and administrative or

fiscal relationship of the facility or facilities in question to the

contractor; and

(v) The impact of the accommodation upon the operation of the

facility, including the impact on the ability of other employees to

perform their duties and the impact on the facility's ability to

conduct business.

(t) Qualification standards means the personal and professional

attributes including the skill, experience, education, physical,

medical, safety and other requirements established by the contractor as

requirements which an individual must meet in order to be eligible for

the position held or desired.

(u) Direct threat means a significant risk of substantial harm to

the health or safety of the individual or others that cannot be

eliminated or reduced by reasonable accommodation. The determination

that a special disabled veteran poses a direct threat shall be based on

an individualized assessment of the individual's present ability to

perform safely the essential functions of the job. This assessment

shall be based on a reasonable medical judgment that relies on the most

current medical knowledge and/or on the best available objective

evidence. In determining whether an individual would pose a direct

threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

Sec. 60-250.3 [Reserved]

Sec. 60-250.4 Coverage and waivers.

(a) General--(1) Contracts and subcontracts of $10,000 or more.

Contracts and subcontracts of $10,000 or more, are covered by this

part. No contracting agency or contractor shall procure supplies or

services in less than usual quantities to avoid the applicability of

the equal opportunity clause.

(2) Contracts for indefinite quantities. With respect to indefinite

delivery-type contracts (including, but not limited to, open end

contracts, requirement-type contracts, Federal Supply Schedule

contracts, ``call-type'' contracts, and purchase notice agreements),

the equal opportunity clause shall be included unless the contracting

agency has reason to believe that the amount to be ordered in any year

under such contract will be less than $10,000. The applicability of the

equal opportunity clause shall be determined at the time of award for

the first year, and annually thereafter for succeeding years, if any.

Notwithstanding the above, the equal opportunity clause shall be

applied to such contract whenever the amount of a single order is

$10,000 or more. Once the equal opportunity clause is determined to be

applicable, the contract shall continue to be subject to such clause

for its duration, regardless of the amounts ordered, or reasonably

expected to be ordered in any year.

(3) Employment activities within the United States. This part

applies only to employment activities within the United States and not

to employment activities abroad. The term ``employment activities

within the United States'' includes actual employment within the United

States, and decisions of the contractor made within the United States

pertaining to the contractor's applicants and employees who are within

the United States, regarding employment opportunities abroad (such as

recruiting and hiring within the United States for employment abroad,

or transfer of persons employed in the United States to contractor

establishments abroad).

(4) Contracts with state or local governments. The requirements of

the equal opportunity clause in any contract or subcontract with a

state or local government (or any agency, instrumentality or

subdivision thereof) shall not be applicable to any agency,

instrumentality or subdivision of such government which does not

participate in work on or under the contract or subcontract.

(b) Waivers--(1) Specific contracts and classes of contracts. The

Deputy Assistant Secretary may waive the application to any contract of

the equal opportunity clause in whole or part when he or she deems that

special circumstances in the national interest so require. The Deputy

Assistant Secretary may also grant such waivers to groups or categories

of contracts: where it is in the national interest; where it is found

impracticable to act upon each request individually; and where such

waiver will substantially contribute to convenience in administration

of the Act. When a waiver has been granted for any class of contracts,

the Deputy Assistant Secretary may withdraw the waiver for a specific

contract or group of contracts to be awarded, when in his or her

judgment such action is necessary or appropriate to achieve the

purposes of the Act. The withdrawal shall not apply to contracts

awarded prior to the withdrawal, except that in procurements entered

into by formal advertising, or the various forms of restricted formal

advertising, such withdrawal shall not apply unless the withdrawal is

made more than 10 calendar days before the date set for the opening of

the bids.

(2) National security. Any requirement set forth in the regulations

of this part shall not apply to any contract whenever the head of the

contracting agency determines that such contract is essential to the

national security and that its award without complying with such

requirements is necessary to the national security. Upon making such a

determination, the head of the contracting agency will notify the

Deputy Assistant Secretary in writing within 30 days.

(3) Facilities not connected with contracts. The Deputy Assistant

Secretary may waive the requirements of the equal opportunity clause

with respect to any of a contractor's facilities which he or she finds

to be in all respects separate and distinct from activities of the

contractor related to the performance of the contract, provided that he

or she also finds that such a waiver will not interfere with or impede

the effectuation of the Act. Such waivers shall be considered only upon

the request of the contractor.

Sec. 60-250.5 Equal opportunity clause.

(a) Government contracts. Each contracting agency and each

contractor shall include the following equal opportunity clause in each

of its covered Government contracts or subcontracts (and modifications,

renewals, or extensions thereof if not included in the original

contract):

Equal Opportunity for Special Disabled Veterans and Veterans of the

Vietnam Era

1. The contractor will not discriminate against any employee or

applicant for employment because he or she is a special disabled

veteran or veteran of the Vietnam era in regard to any position for

which the employee or applicant for employment is qualified. The

contractor agrees to take

[[Page 59646]]

affirmative action to employ, advance in employment and otherwise

treat qualified individuals without discrimination based on their

status as a special disabled veteran or veteran of the Vietnam era

in all employment practices, including the following:

i. recruitment, advertising, and job application procedures;

ii. hiring, upgrading, promotion, award of tenure, demotion,

transfer, layoff, termination, right of return from layoff and

rehiring;

iii. rates of pay or any other form of compensation and changes

in compensation;

iv. job assignments, job classifications, organizational

structures, position descriptions, lines of progression, and

seniority lists;

v. leaves of absence, sick leave, or any other leave;

vi. fringe benefits available by virtue of employment, whether

or not administered by the contractor;

vii. selection and financial support for training, including

apprenticeship, and on-the-job training under 38 U.S.C 3687,

professional meetings, conferences, and other related activities,

and selection for leaves of absence to pursue training;

viii. activities sponsored by the contractor including social or

recreational programs; and

ix. any other term, condition, or privilege of employment.

2. The contractor agrees to immediately list all employment

openings which exist at the time of the execution of this contract

and those which occur during the performance of this contract,

including those not generated by this contract and including those

occurring at an establishment of the contractor other than the one

wherein the contract is being performed, but excluding those of

independently operated corporate affiliates, at an appropriate local

employment service office of the state employment security agency

wherein the opening occurs. Listing employment openings with the

U.S. Department of Labor's America's Job Bank shall satisfy the

requirement to list jobs with the local employment service office.

3. Listing of employment openings with the local employment

service office pursuant to this clause shall be made at least

concurrently with the use of any other recruitment source or effort

and shall involve the normal obligations which attach to the placing

of a bona fide job order, including the acceptance of referrals of

veterans and nonveterans. The listing of employment openings does

not require the hiring of any particular job applicants or from any

particular group of job applicants, and nothing herein is intended

to relieve the contractor from any requirements in Executive orders

or regulations regarding nondiscrimination in employment.

4. Whenever the contractor becomes contractually bound to the

listing provisions in paragraphs 2 and 3 of this clause, it shall

advise the state employment security agency in each state where it

has establishments of the name and location of each hiring location

in the state: Provided, That this requirement shall not apply to

state and local governmental contractors. As long as the contractor

is contractually bound to these provisions and has so advised the

state agency, there is no need to advise the state agency of

subsequent contracts. The contractor may advise the state agency

when it is no longer bound by this contract clause.

5. The provisions of paragraphs 2 and 3 of this clause do not

apply to the listing of employment openings which occur and are

filled outside of the 50 states, the District of Columbia, the

Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

6. As used in this clause: i. All employment openings includes

all positions except executive and top management, those positions

that will be filled from within the contractor's organization, and

positions lasting three days or less. This term includes full-time

employment, temporary employment of more than three days' duration,

and part-time employment.

ii. Executive and top management means any employee: (a) Whose

primary duty consists of the management of the enterprise in which

he or she is employed or of a customarily recognized department or

subdivision thereof; and (b) who customarily and regularly directs

the work of two or more other employees therein; and (c) who has the

authority to hire or fire other employees or whose suggestions and

recommendations as to the hiring or firing and as to the advancement

and promotion or any other change of status of other employees will

be given particular weight; and (d) who customarily and regularly

exercises discretionary powers; and (e) who does not devote more

than 20 percent, or, in the case of an employee of a retail or

service establishment who does not devote as much as 40 percent, of

his or her hours of work in the work week to activities which are

not directly and closely related to the performance of the work

described in (a) through (d) of this paragraph 6. ii.; Provided,

that (e) of this paragraph 6.ii. shall not apply in the case of an

employee who is in sole charge of an independent establishment or a

physically separated branch establishment, or who owns at least a

20-percent interest in the enterprise in which he or she is

employed.

iii. Positions that will be filled from within the contractor's

organization means employment openings for which no consideration

will be given to persons outside the contractor's organization

(including any affiliates, subsidiaries, and parent companies) and

includes any openings which the contractor proposes to fill from

regularly established ``recall'' lists. The exception does not apply

to a particular opening once an employer decides to consider

applicants outside of his or her own organization.

7. The contractor agrees to comply with the rules, regulations,

and relevant orders of the Secretary of Labor issued pursuant to the

Act.

8. In the event of the contractor's noncompliance with the

requirements of this clause, actions for noncompliance may be taken

in accordance with the rules, regulations, and relevant orders of

the Secretary of Labor issued pursuant to the Act.

9. The contractor agrees to post in conspicuous places,

available to employees and applicants for employment, notices in a

form to be prescribed by the Deputy Assistant Secretary for Federal

Contract Compliance Programs, provided by or through the contracting

officer. Such notices shall state the rights of applicants and

employees as well as the contractor's obligation under the law to

take affirmative action to employ and advance in employment

qualified employees and applicants who are special disabled veterans

or veterans of the Vietnam era. The contractor must ensure that

applicants or employees who are special disabled veterans are

informed of the contents of the notice (e.g., the contractor may

have the notice read to a visually disabled individual, or may lower

the posted notice so that it might be read by a person in a

wheelchair).

10. The contractor will notify each labor organization or

representative of workers with which it has a collective bargaining

agreement or other contract understanding, that the contractor is

bound by the terms of the Vietnam Era Veterans' Readjustment

Assistance Act of 1974, as amended, and is committed to take

affirmative action to employ and advance in employment qualified

special disabled veterans and veterans of the Vietnam era.

11. The contractor will include the provisions of this clause in

every subcontract or purchase order of $10,000 or more, unless

exempted by the rules, regulations, or orders of the Secretary

issued pursuant to the Vietnam Era Veterans' Readjustment Assistance

Act of 1974, as amended, so that such provisions will be binding

upon each subcontractor or vendor. The contractor will take such

action with respect to any subcontract or purchase order as the

Deputy Assistant Secretary for Federal Contract Compliance Programs

may direct to enforce such provisions, including action for

noncompliance.

[End of Clause]

(b) Subcontracts. Each contractor shall include the equal

opportunity clause in each of its subcontracts subject to this part.

(c) Adaption of language. Such necessary changes in language may be

made to the equal opportunity clause as shall be appropriate to

identify properly the parties and their undertakings.

(d) Inclusion of the equal opportunity clause in the contract. It

is not necessary that the equal opportunity clause be quoted verbatim

in the contract. The clause may be made a part of the contract by

citation to 41 CFR 60-250.5(a).

(e) Incorporation by operation of the Act. By operation of the Act,

the equal opportunity clause shall be considered to be a part of every

contract and subcontract required by the Act and the regulations in

this part to include such a clause, whether or not it is physically

incorporated in such contract and whether or not there is a written

contract between the agency and the contractor.

[[Page 59647]]

(f) Duties of contracting agencies. Each contracting agency shall

cooperate with the Deputy Assistant Secretary and the Secretary in the

performance of their responsibilities under the Act. Such cooperation

shall include insuring that the equal opportunity clause is included in

all covered Government contracts and that contractors are fully

informed of their obligations under the Act and this part, providing

the Deputy Assistant Secretary with any information which comes to the

agency's attention that a contractor is not in compliance with the Act

or this part, responding to requests for information from the Deputy

Assistant Secretary, and taking such actions for noncompliance as are

set forth in Sec. 60-250.66 as may be ordered by the Secretary or the

Deputy Assistant Secretary.

Subpart B--Discrimination Prohibited

Sec. 60-250.20 Covered employment activities.

The prohibition against discrimination in this part applies to the

following employment activities:

(a) Recruitment, advertising, and job application procedures;

(b) Hiring, upgrading, promotion, award of tenure, demotion,

transfer, layoff, termination, right of return from layoff, and

rehiring;

(c) Rates of pay or any other form of compensation and changes in

compensation;

(d) Job assignments, job classifications, organizational

structures, position descriptions, lines of progression, and seniority

lists;

(e) Leaves of absence, sick leave, or any other leave;

(f) Fringe benefits available by virtue of employment, whether or

not administered by the contractor;

(g) Selection and financial support for training, including,

apprenticeships, professional meetings, conferences and other related

activities, and selection for leaves of absence to pursue training;

(h) Activities sponsored by the contractor including social and

recreational programs; and

(i) Any other term, condition, or privilege of employment.

Sec. 60-250.21 Prohibitions.

The term discrimination includes, but is not limited to, the acts

described in this section and Sec. 60-250.23.

(a) Disparate treatment. It is unlawful for the contractor to deny

an employment opportunity or benefit or otherwise to discriminate

against a qualified individual because of that individual's status as a

special disabled veteran or veteran of the Vietnam era.

(b) Limiting, segregating and classifying. Unless otherwise

permitted by this part, it is unlawful for the contractor to limit,

segregate, or classify a job applicant or employee in a way that

adversely affects his or her employment opportunities or status on the

basis of that individual's status as a special disabled veteran or

veteran of the Vietnam era. For example, the contractor may not

segregate qualified special disabled veterans or veterans of the

Vietnam era into separate work areas or into separate lines of

advancement.

(c) Contractual or other arrangements.--(1) In general. It is

unlawful for the contractor to participate in a contractual or other

arrangement or relationship that has the effect of subjecting the

contractor's own qualified applicant or employee who is a special

disabled veteran or veteran of the Vietnam era to the discrimination

prohibited by this part.

(2) Contractual or other arrangement defined. The phrase

``contractual or other arrangement or relationship'' includes, but is

not limited to, a relationship with: an employment or referral agency;

a labor organization, including a collective bargaining agreement; an

organization providing fringe benefits to an employee of the

contractor; or an organization providing training and apprenticeship

programs.

(3) Application. This paragraph (c) applies to the contractor, with

respect to its own applicants or employees, whether the contractor

offered the contract or initiated the relationship, or whether the

contractor accepted the contract or acceded to the relationship. The

contractor is not liable for the actions of the other party or parties

to the contract which only affect that other party's employees or

applicants.

(d) Standards, criteria or methods of administration. It is

unlawful for the contractor to use standards, criteria, or methods of

administration, that are not job-related and consistent with business

necessity, and that:

(1) Have the effect of discriminating on the basis of status as a

special disabled veteran or veteran of the Vietnam era; or

(2) Perpetuate the discrimination of others who are subject to

common administrative control.

(e) Relationship or association with a special disabled veteran or

a veteran of the Vietnam era. It is unlawful for the contractor to

exclude or deny equal jobs or benefits to, or otherwise discriminate

against, a qualified individual because of the known special disabled

veteran or Vietnam era veteran status of an individual with whom the

qualified individual is known to have a family, business, social or

other relationship or association.

(f) Not making reasonable accommodation. (1) It is unlawful for the

contractor to fail to make reasonable accommodation to the known

physical or mental limitations of an otherwise qualified applicant or

employee who is a special disabled veteran, unless such contractor can

demonstrate that the accommodation would impose an undue hardship on

the operation of its business.

(2) It is unlawful for the contractor to deny employment

opportunities to an otherwise qualified job applicant or employee who

is a special disabled veteran based on the need of such contractor to

make reasonable accommodation to such an individual's physical or

mental impairments.

(3) A qualified special disabled veteran is not required to accept

an accommodation, aid, service, opportunity or benefit which such

qualified individual chooses not to accept. However, if such individual

rejects a reasonable accommodation, aid, service, opportunity or

benefit that is necessary to enable the individual to perform the

essential functions of the position held or desired, and cannot, as a

result of that rejection, perform the essential functions of the

position, the individual will not be considered a qualified special

disabled veteran.

(g) Qualification standards, tests and other selection criteria--

(1) In general. It is unlawful for the contractor to use qualification

standards, employment tests or other selection criteria that screen out

or tend to screen out individuals on the basis of their status as

special disabled veterans or veterans of the Vietnam era, unless the

standard, test or other selection criterion, as used by the contractor,

is shown to be job-related for the position in question and is

consistent with business necessity. Selection criteria that concern an

essential function may not be used to exclude a special disabled

veteran if that individual could satisfy the criteria with provision of

a reasonable accommodation. Selection criteria that exclude or tend to

exclude individuals on the basis of their status as special disabled

veterans or veterans of the Vietnam era but concern only marginal

functions of the job would not be consistent with business necessity.

The contractor may not refuse to hire an applicant who is a special

disabled veteran because the applicant's disability prevents him or her

from performing marginal functions. When considering a special disabled

veteran or a veteran of the Vietnam era for an employment opportunity,

the contractor

[[Page 59648]]

may not rely on portions of such veteran's military record, including

his or her discharge papers, which are not relevant to the

qualification requirements of the opportunity in issue.

(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR

part 60-3, do not apply to 38 U.S.C. 4212 and are similarly

inapplicable to this part.

(h) Administration of tests. It is unlawful for the contractor to

fail to select and administer tests concerning employment in the most

effective manner to ensure that, when a test is administered to a job

applicant or employee who is a special disabled veteran with a

disability that impairs sensory, manual, or speaking skills, the test

results accurately reflect the skills, aptitude, or whatever other

factor of the applicant or employee that the test purports to measure,

rather than reflecting the impaired sensory, manual, or speaking skills

of such employee or applicant, except where such skills are the factors

that the test purports to measure.

(i) Compensation. In offering employment or promotions to special

disabled veterans or veterans of the Vietnam era, it is unlawful for

the contractor to reduce the amount of compensation offered because of

any income based upon a disability-related and/or military-service-

related pension or other disability-related and/or military-service-

related benefit the applicant or employee receives from another source.

Sec. 60-250.22 Direct threat defense.

The contractor may use as a qualification standard the requirement

that an individual be able to perform the essential functions of the

position held or desired without posing a direct threat to the health

or safety of the individual or others in the workplace. (See Sec. 60-

250.2(u) defining direct threat.)

Sec. 60-250.23 Medical examinations and inquiries.

(a) Prohibited medical examinations or inquiries. Except as stated

in paragraphs (b) and (c) of this section, it is unlawful for the

contractor to require a medical examination of an applicant or employee

or to make inquiries as to whether an applicant or employee is a

special disabled veteran or as to the nature or severity of such a

veteran's disability.

(b) Permitted medical examinations and inquiries--(1) Acceptable

pre-employment inquiry. The contractor may make pre-employment

inquiries into the ability of an applicant to perform job-related

functions, and/or may ask an applicant to describe or to demonstrate

how, with or without reasonable accommodation, the applicant will be

able to perform job-related functions.

(2) Employment entrance examination. The contractor may require a

medical examination (and/or inquiry) after making an offer of

employment to a job applicant and before the applicant begins his or

her employment duties, and may condition an offer of employment on the

results of such examination (and/or inquiry), if all entering employees

in the same job category are subjected to such an examination (and/or

inquiry) regardless of their status as a special disabled veteran.

(3) Examination of employees. The contractor may require a medical

examination (and/or inquiry) of an employee that is job-related and

consistent with business necessity. The contractor may make inquiries

into the ability of an employee to perform job-related functions.

(4) Other acceptable examinations and inquiries. The contractor may

conduct voluntary medical examinations and activities, including

voluntary medical histories, which are part of an employee health

program available to employees at the work site.

(5) Medical examinations conducted in accordance with paragraphs

(b)(2) and (b)(4) of this section do not have to be job-related and

consistent with business necessity. However, if certain criteria are

used to screen out an applicant or applicants or an employee or

employees who are special disabled veterans as a result of such

examinations or inquiries, the contractor must demonstrate that the

exclusionary criteria are job-related and consistent with business

necessity, and that performance of the essential job functions cannot

be accomplished with reasonable accommodations as required in this

part.

(c) Invitation to self-identify. The contractor shall invite

applicants to self-identify as being covered by the Act, as specified

in Sec. 60-250.42.

(d) Confidentiality and use of medical information. (1) Information

obtained under this section regarding the medical condition or history

of any applicant or employee shall be collected and maintained on

separate forms and in separate medical files and treated as a

confidential medical record, except that:

(i) Supervisors and managers may be informed regarding necessary

restrictions on the work or duties of the applicant or employee and

necessary accommodations;

(ii) First aid and safety personnel may be informed, when

appropriate, if the disability might require emergency treatment; and

(iii) Government officials engaged in enforcing the laws

administered by OFCCP, including this part, or enforcing the Americans

with Disabilities Act, shall be provided relevant information on

request.

(2) Information obtained under this section regarding the medical

condition or history of any applicant or employee shall not be used for

any purpose inconsistent with this part.

Sec. 60-250.24 Drugs and alcohol.

(a) Specific activities permitted. The contractor:

(1) May prohibit the illegal use of drugs and the use of alcohol at

the workplace by all employees;

(2) May require that employees not be under the influence of

alcohol or be engaging in the illegal use of drugs at the workplace;

(3) May require that all employees behave in conformance with the

requirements established under the Drug-Free Workplace Act of 1988 (41

U.S.C. 701 et seq.);

(4) May hold an employee who engages in the illegal use of drugs or

who is an alcoholic to the same qualification standards for employment

or job performance and behavior to which the contractor holds its other

employees, even if any unsatisfactory performance or behavior is

related to the employee's drug use or alcoholism;

(5) May require that its employees employed in an industry subject

to such regulations comply with the standards established in the

regulations (if any) of the Departments of Defense and Transportation,

and of the Nuclear Regulatory Commission, and other Federal agencies

regarding alcohol and the illegal use of drugs; and

(6) May require that employees employed in sensitive positions

comply with the regulations (if any) of the Departments of Defense and

Transportation, and of the Nuclear Regulatory Commission, and other

Federal agencies that apply to employment in sensitive positions

subject to such regulations.

(b) Drug testing--(1) General policy. For purposes of this part, a

test to determine the illegal use of drugs is not considered a medical

examination. Thus, the administration of such drug tests by the

contractor to its job applicants or employees is not a violation of

Sec. 60-250.23. Nothing in this part shall be construed to encourage,

prohibit, or authorize the contractor to conduct drug tests of job

applicants or

[[Page 59649]]

employees to determine the illegal use of drugs or to make employment

decisions based on such test results.

(2) Transportation employees. Nothing in this part shall be

construed to encourage, prohibit, or authorize the otherwise lawful

exercise by contractors subject to the jurisdiction of the Department

of Transportation of authority to test employees in, and applicants

for, positions involving safety-sensitive duties for the illegal use of

drugs or for on-duty impairment by alcohol; and remove from safety-

sensitive positions persons who test positive for illegal use of drugs

or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this

section.

(3) Any information regarding the medical condition or history of

any employee or applicant obtained from a test to determine the illegal

use of drugs, except information regarding the illegal use of drugs, is

subject to the requirements of Secs. 60-250.23(b)(5) and (c).

Sec. 60-250.25 Health insurance, life insurance and other benefit

plans.

(a) An insurer, hospital, or medical service company, health

maintenance organization, or any agent or entity that administers

benefit plans, or similar organizations may underwrite risks, classify

risks, or administer such risks that are based on or not inconsistent

with state law.

(b) The contractor may establish, sponsor, observe or administer

the terms of a bona fide benefit plan that are based on underwriting

risks, classifying risks, or administering such risks that are based on

or not inconsistent with state law.

(c) The contractor may establish, sponsor, observe, or administer

the terms of a bona fide benefit plan that is not subject to state laws

that regulate insurance.

(d) The contractor may not deny a qualified special disabled

veteran equal access to insurance or subject a qualified special

disabled veteran to different terms or conditions of insurance based on

disability alone, if the disability does not pose increased risks.

(e) The activities described in paragraphs (a), (b) and (c) of this

section are permitted unless these activities are used as a subterfuge

to evade the purposes of this part.

Subpart C--Affirmative Action Program

Sec. 60-250.40 Applicability of the affirmative action program

requirement.

(a) The requirements of this subpart apply to every Government

contractor that has 50 or more employees and a contract of $50,000 or

more.

(b) Contractors described in paragraph (a) of this section shall,

within 120 days of the commencement of a contract, prepare and maintain

an affirmative action program at each establishment. The affirmative

action program shall set forth the contractor's policies and procedures

in accordance with this part. This program may be integrated into or

kept separate from other affirmative action programs.

(c) The affirmative action program shall be reviewed and updated

annually.

(d) The contractor shall submit the affirmative action program

within 30 days of a request from OFCCP, unless the request provides for

a different time. The contractor also shall make the affirmative action

program promptly available on-site upon OFCCP's request.

Sec. 60-250.41 Availability of affirmative action program.

The full affirmative action program shall be available to any

employee or applicant for employment for inspection upon request. The

location and hours during which the program may be obtained shall be

posted at each establishment.

Sec. 60-250.42 Invitation to self-identify.

(a) Special disabled veterans. The contractor shall invite

applicants to inform the contractor whether the applicant believes that

he or she is a special disabled veteran who may be covered by the Act

and wishes to benefit under the affirmative action program. Such

invitation shall be extended after making an offer of employment to a

job applicant and before the applicant begins his or her employment

duties, except that the contractor may invite special disabled veterans

to self-identify prior to making a job offer when:

(1) The invitation is made when the contractor actually is

undertaking affirmative action for 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.

(b) Veterans of the Vietnam era. The contractor shall invite

applicants to inform the contractor whether the applicant believes that

he or she is a veteran of the Vietnam era who may be covered by the Act

and wishes to benefit under the affirmative action program. Such

invitation may be made at any time before the applicant begins his or

her employment duties.

(c) The invitations referenced in paragraphs (a) and (b) of this

section shall state that a request to benefit under the affirmative

action program may be made immediately and/or at any time in the

future. The invitations also shall summarize the relevant portions of

the Act and the contractor's affirmative action program. Furthermore,

the invitations shall state that the information is being requested on

a voluntary basis, that it will be kept confidential, that refusal to

provide it will not subject the applicant to any adverse treatment, and

that it will not be used in a manner inconsistent with the Act. (An

acceptable form for such an invitation is set forth in Appendix B of

this part. Because a contractor usually may not seek advice from a

special disabled veteran regarding placement and accommodation until

after a job offer has been extended, the invitation set forth in

Appendix B of this part contains instructions regarding modifications

to be made if it is used at the pre-offer stage.)

(d) If an applicant so identifies himself or herself as a special

disabled veteran, the contractor should also seek the advice of the

applicant regarding proper placement and appropriate accommodation,

after a job offer has been extended. The contractor also may make such

inquiries to the extent they are consistent with the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, (e.g., in the context

of asking applicants to describe or demonstrate how they would perform

the job). The contractor shall maintain a separate file in accordance

with Sec. 60-250.23(d) on persons who have self-identified as special

disabled veterans.

(e) The contractor shall keep all information on self

identification confidential. The contractor shall provide the

information to OFCCP upon request. This information may be used only in

accordance with this part.

(f) Nothing in this section shall relieve the contractor of its

obligation to take affirmative action with respect to those applicants

or employees who are known to the contractor to be special disabled

veterans or veterans of the Vietnam era.

(g) Nothing in this section shall relieve the contractor from

liability for discrimination under the Act.

Sec. 60-250.43 Affirmative action policy.

Under the affirmative action obligations imposed by the Act

contractors shall not discriminate because of status as a special

disabled veteran or veteran of the Vietnam era and shall take

affirmative action to employ and advance in employment qualified

special disabled veterans and veterans of the Vietnam era at all levels

of employment, including the executive

[[Page 59650]]

level. Such action shall apply to all employment activities set forth

in Sec. 60-250.20.

Sec. 60-250.44 Required contents of affirmative action programs.

Acceptable affirmative action programs shall contain, but not

necessarily be limited to, the following ingredients:

(a) Policy statement. The contractor shall include an equal

opportunity policy statement in its affirmative action program, and

shall post the policy statement on company bulletin boards. The

contractor must ensure that applicants and employees who are special

disabled veterans are informed of the contents of the policy statement

(for example, the contractor may have the statement read to a visually

disabled individual, or may lower the posted notice so that it may be

read by a person in a wheelchair). The policy statement should indicate

the chief executive officer's attitude on the subject matter, provide

for an audit and reporting system (see paragraph (h) of this section)

and assign overall responsibility for the implementation of affirmative

action activities required under this part (see paragraph (i) of this

section). Additionally, the policy should state, among other things,

that the contractor will: recruit, hire, train and promote persons in

all job titles, and ensure that all other personnel actions are

administered, without regard to special disabled veteran or Vietnam era

veteran status; and ensure that all employment decisions are based only

on valid job requirements. The policy shall state that employees and

applicants shall not be subjected to harassment, intimidation, threats,

coercion or discrimination because they have engaged in or may engage

in any of the following activities:

(1) Filing a complaint;

(2) Assisting or participating in an investigation, compliance

evaluation, hearing, or any other activity related to the

administration of the affirmative action provisions of the Vietnam Era

Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA) or

any other Federal, state or local law requiring equal opportunity for

special disabled veterans or veterans of the Vietnam era;

(3) Opposing any act or practice made unlawful by VEVRAA or its

implementing regulations in this part or any other Federal, state or

local law requiring equal opportunity for special disabled veterans or

veterans of the Vietnam era; or

(4) Exercising any other right protected by VEVRAA or its

implementing regulations in this part.

(b) Review of personnel processes. The contractor shall ensure that

its personnel processes provide for careful, thorough, and systematic

consideration of the job qualifications of applicants and employees who

are known special disabled veterans or veterans of the Vietnam era for

job vacancies filled either by hiring or promotion, and for all

training opportunities offered or available. The contractor shall

ensure that when a special disabled veteran or a veteran of the Vietnam

era is considered for employment opportunities, the contractor relies

only on that portion of the individual's military record, including his

or her discharge papers, that is relevant to the requirements of the

opportunity in issue. The contractor shall ensure that its personnel

processes do not stereotype special disabled veterans and veterans of

the Vietnam era in a manner which limits their access to all jobs for

which they are qualified. The contractor shall periodically review such

processes and make any necessary modifications to ensure that these

obligations are carried out. A description of the review and any

necessary modifications to personnel processes or development of new

processes shall be included in any affirmative action programs required

under this part. The contractor must design procedures that facilitate

a review of the implementation of this requirement by the contractor

and the Government. (Appendix C of this part is an example of an

appropriate set of procedures. The procedures in Appendix C of this

part are not required and contractors may develop other procedures

appropriate to their circumstances.)

(c) Physical and mental qualifications. (1) The contractor shall

provide in its affirmative action program, and shall adhere to, a

schedule for the periodic review of all physical and mental job

qualification standards to ensure that, to the extent qualification

standards tend to screen out qualified special disabled veterans, they

are job-related for the position in question and are consistent with

business necessity.

(2) Whenever the contractor applies physical or mental

qualification standards in the selection of applicants or employees for

employment or other change in employment status such as promotion,

demotion or training, to the extent that qualification standards tend

to screen out qualified special disabled veterans, the standards shall

be related to the specific job or jobs for which the individual is

being considered and consistent with business necessity. The contractor

shall have the burden to demonstrate that it has complied with the

requirements of this paragraph (c)(2).

(3) The contractor may use as a defense to an allegation of a

violation of paragraph (c)(2) of this section that an individual poses

a direct threat to the health or safety of the individual or others in

the workplace. (See Sec. 60-250.2(u) defining direct threat.)

(d) Reasonable accommodation to physical and mental limitations. As

is provided in Sec. 60-250.21(f), as a matter of nondiscrimination the

contractor must make reasonable accommodation to the known physical or

mental limitations of an otherwise qualified special disabled veteran

unless it can demonstrate that the accommodation would impose an undue

hardship on the operation of its business. As a matter of affirmative

action, if an employee who is known to be a special disabled veteran is

having significant difficulty performing his or her job and it is

reasonable to conclude that the performance problem may be related to

the known disability, the contractor shall confidentially notify the

employee of the performance problem and inquire whether the problem is

related to the employee's disability; if the employee responds

affirmatively, the contractor shall confidentially inquire whether the

employee is in need of a reasonable accommodation.

(e) Harassment. The contractor must develop and implement

procedures to ensure that its employees are not harassed because of

their status as a special disabled veteran or veteran of Vietnam era.

(f) External dissemination of policy, outreach and positive

recruitment. The contractor shall undertake appropriate outreach and

positive recruitment activities such as those listed in paragraphs

(f)(1) through (f)(8) of this section that are reasonably designed to

effectively recruit qualified special disabled veterans and veterans of

the Vietnam era. It is not contemplated that the contractor will

necessarily undertake all the activities listed in paragraphs (f)(1)

through (f)(8) of this section or that its activities will be limited

to those listed. The scope of the contractor's efforts shall depend

upon all the circumstances, including the contractor's size and

resources and the extent to which existing employment practices are

adequate.

(1) The contractor should enlist the assistance and support of the

following persons and organizations in recruiting, and developing on-

the-job training opportunities for, qualified special

[[Page 59651]]

disabled veterans and veterans of the Vietnam era, to fulfill its

commitment to provide meaningful employment opportunities to such

veterans:

(i) The Local Veterans' Employment Representative or his or her

designee in the local employment service office nearest the

contractor's establishment;

(ii) The Department of Veterans Affairs Regional Office nearest the

contractor's establishment;

(iii) The veterans' counselors and coordinators (``Vet-Reps'') on

college campuses;

(iv) The service officers of the national veterans' groups active

in the area of the contractor's establishment; and

(v) Local veterans' groups and veterans' service centers near the

contractor's establishment.

(2) Formal briefing sessions should be held, preferably on company

premises, with representatives from recruiting sources. Plant tours,

clear and concise explanations of current and future job openings,

position descriptions, worker specifications, explanations of the

company's selection process, and recruiting literature should be an

integral part of the briefing. Formal arrangements should be made for

referral of applicants, follow up with sources, and feedback on

disposition of applicants.

(3) The contractor's recruitment efforts at all educational

institutions should incorporate special efforts to reach students who

are special disabled veterans or veterans of the Vietnam era. An effort

should be made to participate in work-study programs with Department of

Veterans Affairs rehabilitation facilities which specialize in training

or educating disabled veterans.

(4) The contractor should establish meaningful contacts with

appropriate veterans' service organizations which serve special

disabled veterans or veterans of the Vietnam era for such purposes as

advice, technical assistance, and referral of potential employees.

Technical assistance from the resources described in this paragraph may

consist of advice on proper placement, recruitment, training and

accommodations contractors may undertake, but no such resource

providing technical assistance shall have authority to approve or

disapprove the acceptability of affirmative action programs.

(5) Special disabled veterans and veterans of the Vietnam era

should be made available for participation in career days, youth

motivation programs, and related activities in their communities.

(6) The contractor should send written notification of company

policy to all subcontractors, vendors and suppliers, requesting

appropriate action on their part.

(7) The contractor should take positive steps to attract qualified

special disabled veterans and veterans of the Vietnam era not currently

in the work force who have requisite skills and can be recruited

through affirmative action measures. These persons may be located

through the local chapters of organizations of and for Vietnam era

veterans and veterans with disabilities.

(8) The contractor, in making hiring decisions, should consider

applicants who are known special disabled veterans or veterans of the

Vietnam era for all available positions for which they may be qualified

when the position(s) applied for is unavailable.

(g) Internal dissemination of policy. (1) A strong outreach program

will be ineffective without adequate internal support from supervisory

and management personnel and other employees. In order to assure

greater employee cooperation and participation in the contractor's

efforts, the contractor shall develop internal procedures such as those

listed in paragraph (g)(2) of this section for communication of its

obligation to engage in affirmative action efforts to employ and

advance in employment qualified special disabled veterans and veterans

of the Vietnam era. It is not contemplated that the contractor will

necessarily undertake all the activities listed in paragraph (g)(2) of

this section or that its activities will be limited to th

This text is long and has been trimmed here. Open the source document for the complete record.