Guide for Federal Contractors to 2014 OFCCP Compliance
Requirements Related to Veteran Hiring Under VEVRAA
Current as of June 1, 2014 - minor supplements added June 30, 2014
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Ongoing Program: This is not a limited-time
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Guide for Federal Contractors to 2014 OFCCP Compliance
Requirements Related to Veteran Hiring Under VEVRAA
Table of Contents
Acknowledgement........................................................................... i
Foreword by U.S. Senator Joe Manchin III.................................... ii
Is Your Business or Organization a Federal Contractor?........... iii
I. Introduction............................................................................. 1
II. Office of Federal Contract Compliance Programs...............2
III. Overview of VEVRAA............................................................... 2
IV. Veterans Protected Under VEVRAA.......................................3
V. National Guard Members Who Qualify as Protected
Veterans................................................................................. 4
VI. Obligations of a Contractor Under VEVRAA.........................5
VII. Obligations of a Contractor to Prepare a Written
Affirmative Action Program (AAP).......................................6
VIII. Reporting Requirements Relating to Recruitment
and Hiring of Protected Veterans......................................10
IX. Effective Date of VEVRAA Regulations...............................10
X. Summary of Obligations Under VEVRAA.............................11
XI. Checklist of Steps to Take Now to Comply.........................12
XII. More Information..................................................................12
Glossary.........................................................................................13
© 2014 Center for America. This publication may be freely distributed in PDF form provided this copyright
notice remains present and author’s credit is given. For more information, please contact Steve Nowlan,
President, Center for America. [email protected]
Acknowledgement
Center for America gratefully acknowledges the assistance of Baker & McKenzie and its partners,
Bob Mignin and Celina Joachim, in preparing this booklet to help veterans, National Guard
members and Reservists in honor of their service to our country.
Founded in 1949, Baker & McKenzie advises many of the world’s most dynamic and successful
business organizations through more than 4,100 locally qualified lawyers and 6,000 professional
staff in 75 offices in 47 countries.
Robert J. Mignin represents employers in employment, labor and litigation matters throughout
the United States, including administrative proceedings before the EEOC, DOL, OFCCP and similar
state agencies, as well as in single plaintiff and class or collective action
employment disputes in federal and state courts and arbitration concerning
allegations of discrimination, whistle blowing, retaliation, violation of wage
and hour laws and enforcement of confidentiality/non-compete agreements.
He also represents employers in labor relations matters pertaining to unions
and union organizing activities, collective bargaining, arbitrations and NLRB
proceedings. Mr. Mignin has authored or co-authored various publications,
articles and papers on a broad spectrum of labor and employment law
matters. He also regularly presents workshops and training programs on
positive employee relations and achieving a culture of compliance and
diversity, and speaks extensively in the U.S. and internationally on a broad selection of labor and
employment law topics.
Celina R. Joachim regularly advises clients on employment matters, and has considerable
experience representing management in all aspects of labor and employment law, including
employment litigation, and traditional labor law. Her experience includes
defending employers in employment discrimination, retaliation, whistleblower
laws, workers’ compensation retaliation claims, wage and hour, breach of
employment contract, ERISA, and other employee related tort claims. She
regularly counsels on OFCCP-related matters, including implementation of
affirmative action plans, as well as other federal government contractor
issues. Ms. Joachim likewise conducts training for management and human
resources personnel regarding various employment law issues, including
discrimination and harassment matters, leave laws, equal employment
opportunity and OFCCP matters, and hiring, discipline, and discharge issues.
300 E. Randolph Street, Suite 5000, Chicago, IL 60601 312-861-2520
www.BakerMcKenzie.com
i
Foreword
“If you want to help a vet, hire a vet.” This has been my mantra since I was Governor of West
Virginia and one that I live by today.
As the longest war in American history draws to a close a new generation of veterans is
searching for employment. The outstanding men and women of our military services are not
looking for charity or a hand out. They are in search of organizations and businesses eager to
grow and prosper. The training and experience that our nation’s service members gain from the
military is exceptional and they are true assets to any organization. As a former small business
owner, I understand the need for experience.
As Governor, and now Senator, I have also witnessed the less visible qualities of our nation’s
fighting force and remain forever impressed. These qualities are the ones often not found on a
resume. Leadership, teamwork, drive, audacity, ingenuity, focus, honor,
integrity, and trustworthiness are but a few descriptors that resonate
with each and every veteran. These are the qualities that our nation’s
businesses need, but are so hard to recognize during the hiring
process.
As I write this, there are more than 6 million working age veterans,
including 1 million who are unemployed. Moreover, as our Services
transform in the coming years, as many as 130,000 additional
veterans may be entering the workforce.
Businesses that capitalize on the employment of veterans are investing in long-term stability
and proven reputations. They are investing in a network of extraordinary individuals with the
training, experience and values every business is searching for. Let’s invest in the future of our
nation by connecting business with veterans. The American Jobs for America’s Heroes campaign
is an effective resource to help businesses accomplish this goal.
U.S. Senator Joe Manchin III is a member of the Senate Armed Services Committee and CoChair of the Congressional Vets Jobs Caucus helping to improve employment for our nation’s
veterans.
ii
Is Your Business or Organization a Federal Contractor?
This Guide explains new government regulations for federal contractors relating to the
recruitment and hiring of veterans. You probably already know whether your employer is a
federal contractor. If you are uncertain about this, take a minute to review these criteria.
First, does your employer have a contract to provide goods or services to a federal or federally
assisted agency? Or, receive federal funds for a construction project? Or, provide goods or
services to another business that in turn, provides goods or services to a federal agency or
receives federal construction funds?
Second, does your employer have at least one federal contract with a value of $10,000 or
more? If so, then your employer is a federal contractor and is required to comply with Executive
Order 11246, issued in 1965 by President Johnson to prohibit employment discrimination
by federal contractors, and Section 503 of the Rehabilitation Act of 1973 that precludes
discrimination by federal contractors in the employment of individuals with disabilities.
Third, does your employer have at least one federal contract with a value of $100,000 or more
in value? If so, then your employer is a federal contractor subject to the new regulations issued
under the Vietnam Era Veterans’ Rehabilitation Assistance Act (VEVRAA) that became effective
on March 24, 2014. (Contracts are not aggregated in determining federal contractor status.
A business that has several contracts with the federal government, each valued at less than
$100,000, would not be subject to these regulations.)
This Guide will help you understand the new VEVRAA regulations, which is its primary focus. It
also provides some helpful notes about the compliance requirements prescribed by the newly
issued Section 503 regulations that provide additional employment protection to individuals
with disabilities.
While the actual federal regulations for VEVRAA run to 60 pages in the Federal Register, this
summary in “business English” highlights the key actions that you and your colleagues need to
take for your business to be in compliance. You’ll find many hyperlinks in this PDF edition that
give you immediate access to required forms and further resources.
Since this booklet is free, please consider making copies for all of your colleagues whose
activities fall within the requirements of VEVRAA so they can learn how their performance
contributes to compliance. You are welcome to distribute copies of this Guide at your
association meetings too.
Don’t hesitate to email your suggestions and questions! This Guide will be updated periodically
and everyone will benefit when we can incorporate your feedback.
www.CenterforAmerica.org
iii
I. Introduction
The number of unemployed veterans, National Guard members and Reservists continues to
be very high. Congress and the administration believe that contractors who benefit from doing
business with the federal government should make a greater effort to hire military candidates to
help solve the problem.
Thus, the Office of Federal Contract Compliance Programs (OFCCP) issued expanded
regulations which became effective on March 24, 2014. This expansion of the Vietnam Era
Veterans’ Readjustment Assistance Act (VEVRAA) requires additional compliance activities by
businesses with at least one federal contract or subcontract equaling $100,000 or more.
Many companies have very successfully hired veterans, National Guard members and
Reservists and found them to be excellent employees who contribute a great deal to their
employers. This being true, what is the federal government trying to accomplish by expanding
compliance requirements for veteran hiring?
It seems the government has two goals. One is to require companies to develop a more
continuous, systematic process of seeking out veteran candidates and hiring a greater number.
A second goal is to raise the visibility and priority of veteran hiring so that senior company
leadership will support and sustain successful hiring efforts.
As you would expect, VEVRAA compliance requirements for contractors with more than 50
employees are more significant — requiring a written Affirmative Action Program (AAP) and
detailed results reporting — than they are for companies with fewer than 50 employees.
No employer likes to have more government regulations added to the list. That said, employers
that consistently hire veterans — such as the utility industry for which nearly 20% of their
employee base comprises veterans — readily cite the bottom-line benefits of having these
dedicated and skilled employees on board.
The silver lining of the VEVRAA regulations is that more companies will develop greater
proficiency in recruiting veterans to their great benefit. More veterans’ families will have
financial stability and our communities will be strengthened by having more people working.
The “skills shortage” reported by the news media will be reduced.
The American Jobs for America’s Heroes (AJAH) campaign has published this Guide because
part of our mission is to help employers achieve greater success in hiring National Guard
members and veterans. We hope it will familiarize you with your VEVRAA compliance obligations
and help you see how you can utilize the VEVRAA framework to your advantage in hiring
excellent employees.
To learn how the AJAH campaign can help you recruit National Guard members and veterans as
part of your VEVRAA compliance efforts, please review the inside front cover of this Guide.
1
II. Office of Federal Contract Compliance Programs (OFCCP)
The OFCCP is the agency within the U.S. Department of Labor that ensures that employers
doing business with the federal government comply with certain affirmative action and
nondiscrimination requirements in their employment practices.
The OFCCP administers and enforces:
1. Executive Order 11246 that prohibits discrimination and requires affirmative action to
ensure that all employment decisions are made without regard to race, color, religion, sex
or national origin.
2. The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) that prohibits
discrimination against protected veterans and requires affirmative action in the
recruitment and hiring of these veterans. New VEVRAA regulations, the primary focus of
this Guide, went into effect on March 24, 2014.
3. Section 503 of the Rehabilitation Act of 1973 prohibits discrimination and requires
affirmative action in the employment of certain persons with disabilities. The OFCCP also
issued new Section 503 regulations that expand the obligations of federal contractors to
recruit, hire and retain individuals with disabilities, including disabled veterans. Section
503 regulations also apply to disabled members of the National Guard who may not
qualify as veterans, and as such would not be eligible for protection under VEVRAA.
III. Overview of VEVRAA
VEVRAA and its regulations describe the legal obligations of a federal contractor to recruit and
hire certain types of veterans. Enacted in 1974, VEVRAA was one of the measures taken by
Congress to prevent employment discrimination against returning Vietnam veterans seeking
civilian employment. It has been amended several times since it was first passed by Congress
to include an ever-widening group of veterans.
The law provides that certain federal contractors and subcontractors cannot discriminate
against “protected veterans” in the hiring process, and that they must take affirmative action
to ensure that protected veterans have equal employment opportunities without regard to their
status.
Because of the high unemployment rate among veterans, the OFCCP has issued new regulations
to require federal contractors and subcontractors to increase their efforts to recruit and hire
protected veterans. These changes are intended to ease veterans’ transition to civilian life by
eliminating some of the barriers they frequently encounter in their civilian job searches.
The OFCCP now requires federal contractors and subcontractors to take affirmative action to
ensure that a certain percentage of all applicants hired for any position are veterans protected
under VEVRAA. That percentage is based on the national percentage of veterans in the civilian
labor force and will be updated annually by the Department of Labor. As of March 2014, the
percentage of veterans in the labor force is 7.2%.
2
IV. Veterans Protected Under VEVRAA
The VEVRAA regulations designate four categories of protected veterans. (For details on how this
applies to National Guard members, see the next section below.)
1. Disabled Veterans: Any veteran entitled to compensation under laws administered by
the Secretary of Veterans Affairs, or a person discharged from duty because of a serviceconnected disability.
Example: Veterans with Post-Traumatic Stress Disorder (PTSD) resulting from their
service; veterans who suffered injury, heart attack or stroke during training or active
duty.
Note: There is more information about the veterans who are entitled to compensation
under the laws administered by the Department of Veterans Affairs on its website.
2. Recently Separated Veterans: All veterans during the three-year period following the
veteran’s discharge or release from active duty in the U.S. military, ground, naval or air
service.
Example: Members of the National Guard called to federal active duty and
subsequently released with a better than dishonorable discharge, for three years
following their release from federal active duty.
3. Active Duty Wartime or Campaign Badge Veterans: All veterans who served on active
duty during a war or in a campaign for which a campaign badge has been authorized.
Example: Recipients of the Afghanistan Campaign Medal (for veterans who served
in direct support of Operation Enduring Freedom on or after September 11, 2001, to
a future date to be determined by the Secretary of Defense or the cessation of the
operation).
Note: Businesses can contact the Department of Defense or the branch of the military
that issued the campaign badge if they have questions about whether a particular
badge qualifies for coverage.
4. Armed Forces Service Medal Veterans: All veterans who were awarded a service medal
for actions during active duty service, including veterans who participated in a significant
military operation but who encountered no foreign-armed opposition or imminent hostile
action.
Example: Individuals who served with the United Nations Mission in Haiti, U.S. Forces
Haiti or U.S. Support Group Haiti.
3
V. National Guard Members Who Qualify as Protected Veterans
A member of the National Guard must also qualify as a veteran before being eligible to be a
protected veteran under VEVRAA.
To qualify as a veteran, members of the National Guard must have also served on active duty
as part of the U.S. Army or U.S. Air Force, and been discharged or released from the active duty
forces under circumstances other than dishonorable. Only members of the National Guard who
have been called up for federal active duty by the President or the Secretary of Defense are
eligible for veteran status.
Regular Drilling Member This is a “term of art” used frequently by the National Guard to
describe a member of the Guard who has not been activated for
federal service — and thus does not qualify as a “veteran” for
purposes of the federal definition of “veteran” — but who may have
been activated by the state Governor for various types of state
emergencies.
Veteran
Member of the National Guard who has served on federal active duty
and who has received a discharge from federal service other than
dishonorable.
Protected Veteran
Member of the National Guard who qualifies as a “veteran” and who
is protected under VEVRAA because he or she is included in one of
the following categories:
1. Disabled Veterans: Any veteran entitled to compensation under
laws administered by the Secretary of Veteran Affairs, or a person
discharged from duty because of a service-connected disability.
2. Recently Separated Veterans: All veterans during the three-year
period following the veteran’s discharge or release from active
duty in the U.S. military, ground, naval or air service.
3. Active Duty Wartime or Campaign Badge Veterans: All veterans
who served on active duty during a war or in a campaign for which
a campaign badge has been authorized.
4. Armed Forces Service Medal Veterans: All veterans who were
awarded a service medal for actions during active duty service,
including veterans who participated in a significant military
operation but who encountered no foreign-armed opposition or
imminent hostile action.
Note: Regular drilling members of the National Guard who do not qualify under VEVRAA, may
still qualify for the anti-discrimination and affirmative action protections of Section 503 if they
are disabled.
4
VI. Obligations of a Contractor Under VEVRAA
Businesses with a contract or subcontract of $100,000 or more (non-aggregated) with the
federal government, regardless of the number of employees, must comply with the following
VEVRAA requirements:
1. Include an Equal Opportunity Clause in all Contracts.
Covered businesses must include particular language, in bold print, in all subcontracts and
purchase orders. The purpose of this requirement is to incorporate by reference the regulatory
equal opportunity clauses into those documents. The following clause combines the equal
opportunity clause requirements under VEVRAA, Section 503 and Executive Order 11246.
“This contractor and subcontractor shall abide by the requirements of 41
CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit
discrimination against qualified individuals based on their status as protected
veterans or individuals with disabilities, and prohibit discrimination against all
individuals based on their race, color, religion, sex, or national origin. Moreover,
these regulations require that covered prime contractors and subcontractors take
affirmative action to employ and advance in employment individuals without regard
to race, color, religion, sex, national origin, protected veteran status or disability.”
Note: This clause must be in bold, and it must make reference to 41 CFR §§
60-1.4(a), 60-300.5(a) and 60-741.5(a). This requirement pertains to all contracts
entered into after the March 24, 2014 effective date.
2. List and Post All Job Openings.
Covered businesses will be required to:
• List all job vacancies with the local “employment service delivery system” (ESDS) in
a format and manner required by the ESDS so that it can give priority referral of job
openings to protected veterans.
Note: The ESDS is typically the state workforce agency or job bank. The job openings
must be posted with the appropriate ESDS in the state where the jobs are located.
Recruiting, hiring and/or Human Resources personnel should familiarize themselves with
the appropriate ESDS in order to comply with the regulations.
• Provide the appropriate ESDS with the following information: (i) the name(s) and
location(s) of each of the federal contractor’s office(s) in the state where the ESDS is
located; (ii) contact information for the individual(s) responsible for hiring in the state(s)
where jobs are being posted; (iii) verification that the contractor is a federal contractor (by
noting for example, “VEVRAA Federal Contractor”); and (iv) a request that the ESDS notify
the contractor of priority referrals of protected veterans.
In addition to working with ESDS, contractors may use other third party recruiters, such as
American Jobs for America’s Heroes, or job search firms as part of their efforts to recruit and
hire protected veteran candidates.
5
3. Include Equal Opportunity Language in Job Advertisements.
Covered businesses must state in all job solicitations and advertisements that they are an equal
opportunity employer of protected veterans. For example:
“We are an equal opportunity employer and all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, national
origin, disability status, protected veteran status or any other characteristic
protected by law.”
If the contractor posts notices and job postings electronically, this language must be included in
any emails to employees or appear conspicuously on the contractor’s intranet or website.
4. Retain Records for Two Years.
Covered businesses are generally required to retain veterans’ employment records for two years.
In the case of contractors with fewer than 150 employees or a federal contract with a value
less than $150,000, veterans’ employment records may be retained for one year. Employment
records include requests for reasonable accommodation, job postings, applications and
resumes, interview notes and other employment records.
Example: Contractors with fewer than 150 employees regardless of the size of the
contract (assuming it is at least $100,000), or contractors with federal contracts valued
at less than $150,000 regardless of the number of employees may retain records for one
year. Contractors with federal contracts valued at $100,000 or more with more than 150
employees are subject to the two-year retention requirement
Note: Businesses required to implement a written Affirmative Action Program (AAP)
must still maintain records related to the AAP for three years. This includes any records
related to: 1) outreach and recruitment efforts; 2) hiring benchmarks for veterans; and 3)
data on the total number of hires/applicants, jobs posted and filled, and the total number
of veterans who applied and were hired. (See below.)
5. Develop a Written Affirmative Action Program (AAP).
Covered businesses with 50 or more employees must develop a written AAP for veteran
recruitment and hiring. (See the next section below.)
VII. Obligations of a Contractor to Prepare a Written Affirmative
Action Program (AAP)
Covered businesses with 50 or more employees must develop a written VEVRAA Affirmative
Action Program (AAP) for veteran recruitment and hiring for each year the contract is in effect.
Simply put, an AAP is a written workplan that includes, among other sections, a numerical
analysis of an employer’s workforce. A VEVRAA AAP must include the following:
• An affirmative action policy statement;
• A description of actions the contractor will take to ensure equal opportunity;
6
• A schedule for the periodic review of job qualification standards to ensure they do not
create unnecessary barriers to employment;
• A guarantee that the contractor will provide appropriate reasonable accommodations;
• Procedures to safeguard against harassment;
• Quantitative data collection analysis;
• An action plan for outreach to and recruitment of protected veterans.
Note: In addition to AAP requirements under VEVRAA, contractors may have additional
AAP requirements under Section 503 or Executive Order 11246.
Preparing A Written AAP Workplan
When developing a written AAP workplan, covered businesses with 50 or more employees must
comply with the following VEVRAA requirements:
1. Outreach and Recruitment Activities.
• Conduct special outreach and recruitment activities to connect with and recruit protected
veterans.
Contractors can determine the most appropriate outreach and recruitment activities for
their businesses. Such activities may include posting jobs through the American Jobs
for America’s Heroes campaign, enlisting the support of various veterans organizations,
holding briefing sessions to discuss veteran recruiting efforts, and using special efforts to
reach protected veterans who are enrolled in community college or training programs.
• Evaluate the effectiveness of the outreach and recruitment activities in a written report.
The written assessment report must include: (i) the criteria the contractor used to assess
the effectiveness of each outreach and recruitment activity, and (ii) the contractor’s
conclusion as to the effectiveness of the program. If the contractor concludes its outreach
program was not effective, it must substitute or add additional outreach efforts.
2. Self-Identification of Applicants and Employees.
Covered businesses with 50 or more employees are required to invite applicants and employees
to voluntarily self-identify as protected veterans at both the pre-offer and post-offer stages of
the hiring process.
The purpose of this requirement is to allow contractors to track applicants to assess the
effectiveness of their outreach and recruitment efforts.
At the Pre-Offer Stage:
• Contractors are encouraged to use the pre-offer, sample invitation to self-identify found
in the Appendix B of the VEVRAA Final Rule (see page 70 of the PDF). If contractors
create their own self-identification form, it must contain certain statements including:
(i) completion of the form by the applicant is voluntary; (ii) all information will be kept
7
confidential; (iii) completion of the form will not subject the applicant to any adverse
treatment ; and (iv) the information provided will be used only in ways not inconsistent
with the VEVRAA..
• Contractors are allowed only to ask applicants to identify themselves as protected
veterans at this pre-offer stage. Contractors may not ask applicants to disclose their
specific veteran category.
• Contractors may ask applicants only to voluntarily self-identify as protected veterans if
the applicant: (i) has expressed interest in the position(s); (ii) has the basic credentials
for such position(s); (iii) is being considered for the particular position(s); and (iv) did not
remove himself/herself from consideration for the position(s) prior to receiving an offer of
employment.
At the Post-Offer Stage:
• Contractors must invite individuals to self-identify their protected veteran status after the
offer is made but before the applicant begins work.
• Contractors are encouraged to use the post-offer, sample invitation to self-identify
provided in Appendix B of the VEVRAA Final Rule (see page 70 of the PDF).
• If contractors create their own post-offer self-identification form, it must contain certain
statements including that: (i) completion of the form by the applicant is voluntary; (ii) all
information will be kept confidential; and (iii) completion of the form will not subject the
applicant to any adverse treatment.
• After the individual has been offered the job, contractors must then offer the individual
the opportunity to self-identify as being in one of the four categories of protected veterans.
Note: The employer must offer the individual the opportunity to self-identify at the postoffer stage even though the offer was made at the pre-offer stage and the applicant
voluntarily self-identified at that time.
Note: Under Section 503, there are additional requirements to invite applicants to
voluntarily self-identify their disability status. The OFCCP has provided the mandatory
Section 503 self-identification form on its website.
3. Data Collection Analysis.
Covered businesses with 50 or more employees are now required to document and analyze the
number of protected veterans who apply for jobs compared to the number of protected veterans
who are actually hired. Data must be collected and analyzed for each contractor facility.
This information is necessary for contractors to evaluate the effectiveness of their outreach and
recruitment efforts and to assess the availability of protected veterans in their applicant pool or
workforce.
Each year, contractors are required to document the total number of:
• Job openings and jobs filled;
8
• Applicants who have self-identified as protected veterans;
• Applicants for all jobs;
• Protected veterans hired; and,
• Applicants hired.
Note: Contractors should keep careful records of the protected veteran status of
applicants and hires, as well as the total number of applicants and hires for each
position and the number of job openings and jobs filled.
The following is a sample collection chart under VEVRAA:
Sample Veteran Data Collection Chart
for Entire Facility Workforce in AAP Year
Total job openings at facility
Total total jobs filled at facility
Total applicants at facility
Total applicants who self-identified as protected veterans at facility
Percentage of applicants who self-identified as protected veterans at
facility
Total hires at facility
Total hires who self-identified as protected veterans at facility
Percentage of hires who self-identified as protected veterans at facility
100
100
200
20
10%
100
9
9%
4. Hiring Benchmarks.
By collecting data on the protected veteran status of applicants and new hires at each facility,
covered businesses with 50 or more employees will also be able to fulfill another requirement,
that of establishing annual hiring benchmarks for veterans. The purpose of the benchmarks
is to give contractors a quantifiable means to measure their progress towards achieving equal
employment opportunities for protected veterans.
The VEVRAA Benchmark Database is posted on the OFCCP website. It provides additional
information about establishing hiring benchmarks and gives easy access to national and state
data that may be needed to establish these benchmarks.
Contractors have the option of using one of the following two methods to establish a benchmark
for veteran hiring across the contractor’s entire workforce:
(i) National Percentage Method: This national percentage benchmark is equal to the
current national percentage of veterans in the civilian workforce. This percent was
updated in March 2014 to 7.2% and will continue to be updated annually by the OFCCP.
Most employers will use this benchmark.
Example: The contractor in the Sample Veteran Data Collection Chart shown above
hired 100 people, 9 of whom were protected veterans. Thus, 9% of those hired were
protected veterans, exceeding the March 2014 7.2% benchmark.
9
(ii) Five Factors Method: Alternatively, employers may elect to develop their own
benchmark by using five criteria specified on the OFCCP website. The criteria include:
(1) average percentage of veterans in the state(s) the contractor is located, (2) number
of veterans in state; (3) applicant and hiring ratio in previous year, (4) assessments
of outreach and recruitment efforts, and (5) other factors which would affect veteran
availability.
The VEVRAA hiring benchmark is not a quota, and a contractor’s failure to meet the benchmark
will not automatically result in a compliance violation. However, contractors must review their
recruitment efforts and hiring practices each year. If the contractor concludes that its efforts
were not effective, it must implement new or additional steps designed to create better results.
Note: Section 503 regulations include a utilization goal of 7% with respect to employing
and retaining individuals with disabilities so that federal contractors can measure the
success of their efforts.
5. Three-Year Record Retention.
Under VEVRAA, records relating to a contractor’s AAP, including assessment of outreach and
recruitment, data collection analysis, and hiring benchmark method and analysis must be
retained for three years.
VIII. Reporting Requirements Relating to Recruitment and Hiring of
Protected Veterans
All federal contractors and subcontractors subject to VEVRAA must file a form with the Veterans’
Employment & Training Service (VETS) each year of the contract, stating the number of veteran
employees in the workforce. The form must be filed by September 30th following the calendar
year the contract was in effect. The form is available at the VETS page on the DOL website and
may be filed electronically.
Note: Historically the VETS form sought information from contractors regarding the
number of employees in particular categories of veterans. Proposed changes to the
form seek to require employers to report veteran data in the aggregate, not in particular
veteran job categories. This aggregate approach is more consistent with the VEVRAA
AAP requirements contractors have with respect to data collection and hiring benchmark
analysis of veterans.
IX. Effective Date of VEVRAA Regulations
The new VEVRAA regulations became effective March 24, 2014.
Contractors with AAPs in place that are compliant with the old regulations, may delay creating a
new AAP compliant with the current regulations until the start of their next annual AAP period.
Example: Suppose a contractor has an AAP in place dated December 12, 2013 and it
complies with the VEVRAA regulations that were in effect on that date. The contractor
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may continue to operate with this AAP until the expiration of the 12 months for which the
AAP was prepared, in this case, December 11, 2014. At the start of the new AAP year, the
contractor will be required to comply with the new regulations (including self-identification
procedures, data collection and analysis, and hiring benchmarks).
Note: The OFCCP encourages contractors to begin compliance as soon as practicable, so
a contractor is welcome to revise and improve its AAP before the required time to do so.
X. Summary of Obligations Under VEVRAA
Obligations of Covered Businesses
The following obligations apply to all covered businesses regardless of number of employees:
Category
Mandatory Job Listings
Equal Opportunity Rights
Equal Opportunity Clause
Job Solicitations Language
Employer Obligation
List job vacancies with local “employment service delivery
system” (ESDS) in format and manner required by ESDS
Provide notices of equal opportunity rights and obligations to
applicants and employees
Include required bolded equal opportunity clause in all
contracts/subcontracts
Include equal opportunity employer of protected veterans
language in job solicitations and advertisements
Additional Obligations of Covered Businesses With 50 or More Employees
The following obligations — which must be addressed by a written Affirmative Action Program
(AAP) — apply only to covered businesses with 50 or more employees. For those contractors
and subcontractors with AAPs in place before March 24, 2014, these obligations can be delayed
until the start of the next AAP year:
Category
Outreach and Recruitment
Self-Identification
Employer Obligation
Must undertake appropriate activities, e.g., ongoing contact
with veterans’ groups; seeking out veterans who are students
or enrolled in training programs; holding meetings with military
employment counselors; inviting military candidates to tour
company facilities and hear briefings on job opportunities;
participating in job fairs; posting jobs through military hiring
campaigns such as American Jobs for America’s Heroes;
including assessment of such outreach and recruitment.
Pre-offer and post-offer invitation for all applicants to selfidentify their veteran status. OFCCP has included a sample
form in Appendix B to the VEVRAA Final Rule starting on page
70 of the linked OFCCP PDF.
Continues next page ....
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Data Collection
Hiring Benchmark Analysis
Collect number of applicants (total and vets); number of job
openings/jobs filled; number of hires (total and vets).
Using data collection, analyze data using the National
Percentage Method (7.2% as of March 2014) or the Five Factor
Method.
XI. Checklist of Steps to Take Now to Comply
Covered businesses with a federal contract or subcontract of $100,000 or more and which
have 50 or more employees should:
1. Make sure IT, HR and Legal receive necessary training on the new regulations.
2. Identify existing obligations under VEVRAA (and the other laws enforced by the OFCCP).
3. Identify targets for compliance (e.g., by the date of the start of the next AAP year, if the
employer has an AAP in place before March 24).
4. Notify relevant parties about equal opportunity clause requirements in contracts and
to employees. Relevant parties can include procurement, contract managers, account
executives and other operational areas that deal with contracts.
5. Notify recruiting personnel about listing jobs with ESDS and ensure required language for
job solicitations and advertisements is properly included.
6. Work with IT to incorporate self-identification forms on employer’s online application systems
and with HR to set up procedures for post-offer self-identification forms.
7. Begin data collection process and analysis and set up hiring benchmarks.
XII. More Information
• The OFCCP website is available here.
• For an overview of the VEVRAA Final Rule, visit the OFCCP VEVRAA page or the OFCCP
FAQ page.
• OFCCP Section 503 Final Rule Frequently Asked Questions Page.
• OFCCP VEVRAA Final Rule Frequently Asked Questions Page.
• The full 500+ page OFCCP Online Compliance Manual in PDF format is available at:
http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf.
• The VEVRAA regulations published in th Federal Register are available at http://www.
gpo.gov/fdsys/pkg/FR-2013-09-24/pdf/2013-21227.pdf.
• The Veterans’ Employment and Training Service (VETS) website is available at http://
www.dol.gov/vets/.
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Glossary
Active Duty: Full-time duty in the active military service of the U.S. (as opposed to service in one
of the reserve components such as the National Guard or Reserves). This type of service is a
pre-requisite to achieving veteran status.
Affirmative Action Program(s) (AAP): Under VEVRAA, a formal, written document that defines
an employer’s program to hire, promote and retain protected veterans. It is only required
when an employer has a federal contract with a value of $100,000 or more and 50 or more
employees.
Covered Businesses: Businesses with a contract or subcontract of $100,000 or more (nonaggregated) with the federal government. For purposes of this Guide, this term refers to
businesses subject to VEVRAA and not those that may be subject to Executive Order 11246 and
Section 503.
Employment Service Delivery System (ESDS): Publicly funded state employment agency
that administers unemployment benefits, employment services, training programs, and other
services for unemployed individuals in a single location. Veteran job seekers receive priority
referrals for jobs and training as well as special employment services and assistance.
Executive Order 11246: Presidential directive that has the force of federal law that applies to
businesses that have contracts or subcontracts with a value equal to or more than $10,000.
Prohibits discrimination and requires affirmative action to ensure that all employment decisions
are made without regard to race, color, religion, sex or national origin.
Federal Active Duty: Full-time duty in the active military service of the U.S. by a member of the
National Guard. Also known as “Title 10 Service”.
Federal Contractor(s): An employer or business that has a contract with the federal government
that meets certain threshold dollar amounts.
Federal Contract(s): A contract or subcontract to provide goods or services to a federal or
federally-assisted agency; receive funds for a construction project; or provide goods or services
to another business that provides goods or services to a federal agency or receives construction
funds.
Hiring Benchmark(s): The percentage of total hires that are protected veterans that the federal
contractors seek to hire each year. The benchmark, 7.2% as of March 2014, is a point of
reference to measure the effectiveness of the federal contractor’s hiring efforts, not a quota.
Failure to meet this benchmark will not result in an automatic compliance violation.
Office of Federal Contract Compliance Program (OFCCP): The agency within the U.S.
Department of Labor that ensures that employers doing business with the federal government
comply with certain affirmative action and nondiscrimination requirements in their employment
practices.
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Protected Veteran(s): One of four categories of veterans protected by VEVRAA, i.e., Disabled
Veterans; Recently Separated Veterans; Active Duty Wartime or Campaign Badge Veterans;
Armed Forces Service Medal Veterans.
Reserve Component: The National Guard and Reserve branches of the U.S. military service
that augment the active duty (full-time) military when necessary. Members of a reserve
component typically combine military service with a civilian career.
Regular Drilling Member: Term of art used informally to describe National Guard member
who has not been federally activated for service but who may have been called up for duty by
the Governor of the state in response to state emergencies. The regular drilling member of the
National Guard has not yet gained veteran status.
Section 503 of the Rehabilitation Act of 1973: Federal law that applies to businesses that
have contracts or subcontracts with the federal government with a value equal to or more than
$10,000. Prohibits discrimination against certain individuals with disabilities and requires
affirmative action in the hiring, recruiting and retention of individuals with disabilities by federal
contractors.
Utilization Goal(s): The percentage of hires in each job group who are individuals with
disabilities that a federal contractor seeks to hire each year. This goal, currently 7%, is not a
quota, but a method of determining whether the employer’s equal employment opportunity
objectives are being met. Failure to comply with this goal will not result in an automatic
compliance violation. Employers with fewer than 100 employees can apply this utilization goal
across their entire workforce, rather than on a job group basis.
Veteran(s): A person who served in the active branch of the U.S. military and who received a
discharge other than dishonorable.
Veterans’ Employment and Training Service (VETS): The agency within the U.S. Department
of Labor that provides resources and expertise to assist and prepare veterans and service
members to obtain meaningful careers, maximize their employment opportunities and protect
their employment rights.
Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA): Federal law that applies to
businesses that have a contract or subcontract with the federal government with a value equal
to or more than $100,000. Prohibits discrimination against certain groups of veterans and
requires affirmative action in the recruitment and hiring of these veterans.
Legal Disclaimer
This booklet is for informational purposes only and should not be regarded as rendering
legal advice to any person or entity. It is not privileged and does not create an attorneyclient relationship with Baker & McKenzie, or any of the firm’s lawyers, or with the Center
for America. If you have any questions, and before you act on or rely upon this information,
you should consult your own legal advisor.
14
Free Employer Guides to Help You Manage Your Military
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