OFCCP Proposes Comprehensive Revision of Veterans Affirmative Action Obligations

For the first time since 1976, the Office of Federal Contract Compliance Programs (OFCCP) has proposed significant revisions to strengthen the affirmative action regulations for the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended. The proposed revisions, while intended to increase lagging employment for protected veterans, place considerable burdens on covered employers. The first proposed change is the deletion of the reference to “VEVRAA” as the operative law, in favor of “Section 4212,” due to the misleading inference that it covers only Vietnam-era veterans. The Notice of Proposed Rulemaking and information for submission of comments, can be found here.

While the Notice proposes changes in virtually all aspects of veteran affirmative action, the most significant, and likely the most controversial, are:
Regarding recruitment and outreach efforts, the current rule suggests that employers make contact with specified veterans groups to facilitate veteran referrals and other assistance. The proposed rule would require that such contact be in writing. Employers would also have to: (1) enter into a written agreement with the nearest Local Veterans’ Employment Representative office; (2) enter into agreements with at least one enumerated veterans group; and (3) establish agreements with at least one of the veterans organizations listed in the Employer Resources section of the National Resource Directory.
The proposed rules would also direct employers to give more detailed attention to the effectiveness of recruitment and outreach efforts by requiring them to annually analyze and document the effectiveness of their efforts using data for the current and previous two years. To aid that analysis, employers would for the first time be required to track and document referral and applicant data in addition to the hiring data already collected. This would also—for the first time—require employers to invite applicants to identify as “protected veterans.” As a tool for assessing recruitment and hiring effectiveness, the proposed rules also require employers to calculate annual ratios for the following: (1) protected veteran referrals/total referrals; (2) protected veteran applicants/total applicants; (3) protected veteran hires/total hires; and (4) total jobs filled/total job openings.
Finally, the proposed rules would require employers to use their effectiveness analyses and ratio calculations, along with veteran availability data to be provided by the U.S. Department of Labor, to set hiring benchmarks “expressed as the percentage of total hires that are protected veterans that the contractor will seek to hire.” And, employers will need to document and justify the reasonableness of the benchmark, “detailing each of the factors … and the relative significance of each of these factors” used to establish the benchmark.
Comments on the proposed rules must be made to the OFCCP by June 27, 2011. For further information, please contact MSEC’s Affirmative Action Planning Services.