OFCCP Releases Revised Veterans AAP Regulations

Source: Berkshire Associates Inc.

The OFCCP has issued revised regulations located at 41 CFR § 60-300, the section of the regulations that governs Veterans affirmative action programs. The new regulations are effective September 7, 2007 and require federal contractors subject to the rule to affirmatively “employ and advance in employment” covered veterans. The new requirements address the changes required by the 2002 Jobs for Veterans Act and apply to contractors with a contract entered into or modified after December 1, 2003. The existing regulations, located at 41 CFR § 250, remain intact and apply to contractors with a contract entered into before December 1, 2003. 

The three main updates to the regulations include:   

·         Increasing the dollar amount threshold for covered contractors from $25,000 to $100,000. In addition, a single contract of $100,000 or more is required; values of contracts are not aggregated for the purposes of these regulations.

·         Adding the category of Armed Forces service medal to the Veterans covered, deleting Vietnam era Veteran, expanding the definition of disabled Veteran to include any service-related disability, and updating recently separated Veteran from one to three years from date of separation. 

·         Updating the job listing requirement to include state or local employment service notification when job openings occur. This notification can be via hard copy, fax, e-mail, or other electronic notification method. Third party systems can be utilized to aid in the delivery of the job postings. 

The OFCCP clarifies that since most of the requirements are the same (with the exception of the dollar amount and category changes noted above), a single AAP will suffice for contactors with contracts before and after the December 1, 2003 date. Additionally, any government modification made after December 1, 2003 to contracts awarded before that date would subject the contractor to the new regulations. Therefore, if all contracts have been recently reviewed and modified/extended it is possible that the contractor is only covered under one set of regulations. For the purposes of this analysis, two items will be discussed: the contractor’s tracking and self ID form for soliciting Veteran status, and options for posting positions with the appropriate employment service under the new regulations.

Contractors with new or amended contracts after December 1, 2003 would need to track the following categories:

Disabled Veteran -- (1) A Veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.

Recently Separated Veteran -- any Veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.

Armed Forces Service Medal Veteran -- any Veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.

Other Protected Veteran -- a Veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.

Contractors with agreements before December 1, 2003 would need to track the following categories:

Special Disabled Veteran -- (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.

Veteran of the Vietnam Era -- 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.

Other Protected Veteran -- a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense.

Recently Separated Veteran -- any Veteran during the one-year period beginning on the date of such Veteran's discharge or release from active duty.

Contractors with agreements both before and after the December 1, 2003 data would need to track all seven Veteran categories (note that Other protected Veterans are duplicated, with minor verbiage updates). If status of contracts cannot be determined, Berkshire recommends collecting information for all groups.

In regards to the posting requirements, OFCCP requires that all open positions be posted with the state or local workforce agency where the job is located. Exceptions to this requirement include executive level positions (as defined by the revised FLSA exemption provisions), positions expected to be filled from within, and positions lasting three days or less. Notifications can take the form of email, fax, or regular mail, and contractors must retain submission records of the positions. During an onsite audit, the OFCCP may verify compliance with this requirement by requesting a list of posted positions from the state or local agency and reconciling it with a list of newly hired positions included in the plan. The OFCCP allows for third party systems to be used, but makes it clear that the contractor bears the burden of verifying that the positions are posted to the state or local workforce agency. In addition, notification must be sent to the appropriate state or local workforce agency at the same time as the temporary agency.

In an analysis of options available, contractors currently have four options: to post open positions directly with a state employment agency; to manually post positions to a third party site; to subscribe to a third party site, which allows for automatic posting; or to build automatic posting capability using in-house capabilities. Ideally, some of the contractor-focused job posting boards and/or applicant tracking systems will build this technical expertise into their systems for future use. 

Contractors can manually post with the state or local workforce agency. While this is helpful because it does not require a local contact for each position, unfortunately, it still represents a burden on large contractors who operate in multiple states. For contractors wishing to explore the manual posting route, the OFCCP has compiled a list of state workforce agencies located at http://www.jobbankinfo.org/. 

Alternatively, contractors can explore the possibility of using a third party to update their postings. As of this writing, two providers appear to have the capacity to comply with the posting regulations, the Direct Employers Association and NaviSite. Based on initial research, both sites appear to offer free manual posting of single jobs, but automated posting capability will cost contractors upwards of $10,000 - $15,000 per year.   

The Direct Employers Association operates www.jobcentral.com, a job board similar to American’s Job Bank (AJB). Also available is VetCentral, which is a branded search engine of the job central site billed as “job preference for veterans”. According to their website, JobCentral uses an indexing process to identify links to jobs on corporate web sites. Job seekers who click on a job title on JobCentral’s search results page are taken directly to the job listing on the company web site. Indexed jobs are included on JobCentral and distributed to the appropriate state workforce agency career sites. Jobs entered as single postings and from member companies are tracked and recorded for compliance as required by the OFCCP.

NaviSite has maintained AJB for several years and has used that experience to create a new site, America’s Job Exchange (AJE, located at www.americasjobexchange.comThe subscription fee will be based on the number of jobs posted. ) that is similar in look and feel to AJB. According to their website, AJE offers a site that will minimize the transition costs and disruption for current users of AJB and attract new users as usability and functionality are improved. AJE is currently working with states, employers, and job seekers to provide a solution which will allow an easy transition for previous users of AJB.

The final option for very large contractors is to build an in-house technical solution that would peruse the careers section of their website for new postings and automatically feed those listings to the appropriate state agencies. This option is probably only realistic for contractors with large IT departments as it will take a significant amount of time and technical expertise to implement.

Contractors are reminded that the OFCCP will continue to examine the good faith efforts put forth by the contractor to recruit veterans during audits. Specifically, the OFCCP states that contractors are also expected to:

Additionally, contractors should be sure to keep confirmations of all jobs posted with the state or local workforce agency, and verify that processes are in place to ensure all positions are posted with the agency on an ongoing basis. For further information, the OFCCP has published a list of FAQs about the revised regulations located at http://www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm.

Berkshire’s software clients will receive a service release in September to address these changes as well as routine maintenance of the program. Berkshire recommends that clients with a plan date after the effective date of September 7, 2007 complete their plans using the new version. If you have any questions about these new regulations, please feel free to contact Berkshire at 800.882.8904 or email bai@berkshireassociates.com. Berkshire will continue to monitor the tools available to aid contractors with their compliance efforts in this area and will notify clients if other alternatives become available.