OFCCP Publishes Notice of Proposed Rules to Update Veteran AAP Regulations

The Office of Federal Contract Compliance Programs (OFCCP) has published proposed rules to change the regulations that govern how federal contractors complete their Veterans affirmative action plan (AAP). The rules are open for public comment for 60 days, after which the OFCCP will issue final regulations with an implementation date. While no action is needed at this time, once the implementation date is established, all plans will need to comply with the changes.

There are some significant analysis and recordkeeping obligations that would be placed on federal contractors if these changes are adopted. The notice itself can be found here.

Availability: The most significant proposed change would require contractors to gather and retain data to assess the effectiveness of their affirmative action program for Veterans. This requirement is proposed as a way of determining availability of protected Veterans in the workforce. Contractors would be required to document and maintain the following on an annual basis: 

  • The number of priority referrals of protected Veterans received from applicable Employment Service Delivery Systems (ESDS)—formerly referred to as the State employment service or agency
  • The number of total referrals received from applicable employment service delivery systems
  • The ratio of priority referrals of Veterans to total referrals (referral ratio)
  • The number of applicants who self-identified as protected Veterans
  • The total number of job openings and total number of jobs filled
  • The ratio of jobs filled to job openings
  • The total number of applicants for all jobs
  • The ratio of protected Veteran applicants to all applicants (applicant ratio)
  • The number of protected Veteran applicants hired
  • The total number of applicants hired
  • The ratio of protected Veterans hired to all hires (hiring ratio)
 
Some of the items listed above are already maintained by contractors to fulfill the requirements of the VETS-100/VETS-100A reports. However, the retention period for the above data is proposed to be five years, rather than the existing two years.
 
Self-Identification for Applicants: The proposed changes would require contractors to invite applicants to self-identify as a protected Veteran without specifying the type of Veteran. The requirement to collect the specific classification information would remain in effect at the post offer stage to allow for VETS-100/100A reporting.  
 
Benchmarks: The proposed rule outlines that contractors would use the information above to establish annual hiring benchmarks expressed as a percentage of total hires. Contractors would also use other data provided from sources such as Bureau of Labor Statistics and Department of Labor’s (DOL) Veteran’s and Employment Training Service.
 
Terms and Definitions: Within this rule proposal there are possible changes to terminology and definitions. The term ‘VEVRAA,’ an acronym for Vietnam Era Veterans’ Readjustment Assistance Act of 1974, would be changed to ‘Section 4212’ to cover the many amendments to VEVRAA since the regulations were implemented in 1976.

The term ‘other protected Veterans’ would change to ‘active duty wartime or campaign badge Veterans.’ Additionally, the term ‘covered Veterans’ would change to ‘protected Veterans,’ which includes all four of the following classifications of protected Veterans: 

·        Qualified special disabled Veterans
·        Veterans of the Vietnam era
·        Recently separated Veterans
·        Active duty wartime or campaign badge Veterans
 
The changes above do not change the affirmative action requirement for Veterans, nor does it change the requirements for the VETS-100/100A reports. 
 
Program changes: Annually, contractors would be required to provide more information to the ESDS (the state employment service) such as federal contractor status, hiring official at each location, and a request for priority referrals of protected Veterans. Job posting information must be provided to the ESDS in the manner or format prescribed by the ESDS, and this requirement applies to third party vendors who act on behalf of the contractor.
 
Contractors who have employees not working at an established company worksite would be required to satisfy their posting obligations by making them available in electronic format. This is in response to the many alternate work arrangements available to employees and employers.
Berkshire will continue to monitor these proposed changes as they move toward adoption.
 
If you would like to submit comments to the agency through Berkshire’s response, please email your comments to comments@berkshireassociates.com. Our experts will compile comments from our clients into a single response.
 
In the meantime, if you have any questions please contact Berkshire Associates at 800.882.8904.