[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Proposed Rules]
[Pages 50080-50112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23638]
[[Page 50079]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Federal Contract Compliance Programs
_______________________________________________________________________
41 CFR Part 60-250
Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Special Disabled Veterans and Vietnam Era
Veterans; Proposed Rule
Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Proposed Rules
[[Page 50080]]
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: Proposed Rule.
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SUMMARY: The proposal published today would revise the current
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
proposal makes two general types of revisions to the VEVRAA
regulations. First, it would generally conform the VEVRAA regulations
to the Office of Federal Contract Compliance Programs' final rule
revising the regulations implementing Section 503 of the Rehabilitation
Act of 1973, as amended (Section 503). Second, it would withdraw
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 rule which pertain to VEVRAA.
DATES: Comments are invited from the public and other Federal agencies
regarding both the proposal to revise the current VEVRAA regulations
and the proposal to partially withdraw the final rule of 1980. To be
assured of consideration, comments must be in writing and must be
received on or before November 25, 1996.
ADDRESSES: Comments should be sent to Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, Room C3325, 200
Constitution Avenue, N.W., Washington, D.C. 20210.
As a convenience to commenters, the Office of Federal Contract
Compliance Programs will accept public comments transmitted by
facsimile (FAX) machine. The telephone number of the FAX receiver is
(202) 219-6195. Only public comments of six or fewer pages will be
accepted via FAX transmittal. This limitation is necessary in order to
assure access to the equipment. Comments sent by FAX in excess of six
pages will not be accepted. Receipt of FAX transmittals will not be
acknowledged, except that the sender may request confirmation of
receipt by calling the Office of Federal Contract Compliance Programs
at (202) 219-9430.
Comments received will be available for public inspection in Room
C3325, from 9 a.m. to 5 p.m., Monday through Friday, except legal
holidays, from October 8, 1996 until the Department publishes this rule
in final form. Persons who need assistance to review the comments will
be provided with appropriate aids such as readers or print magnifiers.
To schedule an appointment, call (202) 219-9430 (voice), 1-800-326-2577
(TDD).
Copies of this notice of proposed rulemaking are available in the
following alternative formats: large print, electronic file on computer
disk, and audio-tape. Copies may be obtained from the Office of Federal
Contract Compliance Programs by calling (202) 219-9430 (voice) or 1-
800-326-2577 (TDD).
FOR FURTHER INFORMATION CONTACT: Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, 200 Constitution
Avenue, N.W., Room C3325, Washington, D.C. 20210. Telephone: (202) 219-
9475 (voice), 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Overview of Proposed Rule
1. Revision of Current Regulations
The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212
(Section 4212 or VEVRAA) require parties holding Government contracts
and subcontracts 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,
Public Law 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 exclusive
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 is customarily performed (e.g., changes in work assignments) that
enables a qualified special disabled veteran to enjoy equal employment
opportunities.
Today's proposal is precipitated, in part, by OFCCP's publication
of a final rule revising the regulations 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 those 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 Section 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'' (see the
discussion regarding proposed Sec. 60-250.2(n) below). The current
VEVRAA
[[Page 50081]]
regulations are identical to the former Section 503 regulations except
where differences are 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 proposes to
revise the Section 4212 regulations to conform them to the Section 503
final rule. Thus, today's proposal, 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 veterans
of the Vietnam era.
Specific changes are discussed in the Section-by-Section Analysis
below.
2. Partial Withdrawal of the 1980 Final Rule
OFCCP also proposes to partially withdraw 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 (30 FR 12319, September 28, 1965), 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 notice (at 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 proposal. However, OFCCP has determined not
to go forward with some of the other revisions to the regulations. For
instance, unlike today's proposal (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.
Significant differences between this proposal, the current
regulations and the 1980 final rule are discussed in detail in the
Section-by-Section Analysis below. (Provisions contained in the 1980
final rule which are substantially similar to the parallel provisions
in the current regulations are not separately discussed.) In order to
avoid conflict between today's proposal and the 1980 final rule, OFCCP
proposes to withdraw all provisions of the 1980 rule that pertain to
Section 4212.
Request for Comments
Interested parties, including public and private veterans'
organizations and employers, are invited to participate in this
proposed rulemaking by submitting written views.
Section-by-Section Analysis
This proposed 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 a
revision to the definition of ``special disabled veteran.'' 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. In general, 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 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 proposed
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 a consistent enforcement approach with that used under
Executive Order 11246 (which OFCCP also enforces), 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 are also revised to reflect an amendment to Section 4212.
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, the proposal 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
[[Page 50082]]
guidance with respect to parallel provisions of this proposal.
The following analysis focuses on a comparison of today's proposal
with the current Section 4212 regulation and the 1980 final rule. The
analysis discusses the parallel changes in the Section 503 final rule
where necessary to place today's proposal in context. This proposal
uses a long form amending procedure in which all sections of the
regulations are republished (except for those deleted in their
entirety), including sections for which no changes are proposed and
sections for which the only proposed change would be the section
number. Use of the long form procedure ensures maximum clarity.
Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-250.1 Purpose, Applicability and Construction
This section is derived from current Sec. 60-250.1 (``Purpose and
application'') and is generally consistent with that section. A number
of clarifying revisions are proposed. As reflected in its Purpose and
application section (Sec. 60-1.1), the 1980 final rule would have
consolidated provisions (e.g., its definitions provisions) which are
applicable to both Section 4212 and Executive Order 11246 into 41 CFR
Part 60-1. Further, Sec. 60-1.1 of the 1980 final rule 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. Today's proposal does not consolidate any
of the Section 4212 regulations with those implementing the Executive
Order. OFCCP believes that consolidation of provisions in this way is
not practical at this time. However, like the 1980 final rule, today's
proposal incorporates some of the Executive Order enforcement
procedures, including the show cause notice procedure.
Proposed paragraph (a) states in part that Section 4212 requires
contractors to take affirmative action with respect to the employment
of qualified ``special disabled veterans.'' Section 60-250.1 of the
current regulations makes reference instead to ``disabled veterans.''
This proposed change in terminology is based on amendments to VEVRAA
which have not been previously incorporated into the Section 4212
regulations (see Sec. 60-250.2(n) defining ``special disabled
veteran'').
Paragraph (b) clarifies that contracts under which the Government
is a purchaser as well as those under which it is a seller are covered
by the Act. (See discussion regarding the definition of ``Government
contract'' contained in Sec. 60-250.2(i).) Additionally, paragraph (b)
provides that compliance by a covered contractor with Part 60-250 will
not generally determine its compliance with other statutes, and that
the reverse is also true.
The purpose and application section of the 1980 final rule
(Sec. 60-250.1) states that Part 60-250 applies to all Government
contracts, ``including Federal deposit and share insurance.'' The
preamble to the 1980 final rule (45 FR 86218) states that OFCCP
believes that Federal deposit and share insurance are contracts within
the meaning of Section 4212. In the course of preparing its 1996 final
rule implementing Section 503, OFCCP conducted a careful and detailed
reevaluation of its position in light of changes in some of the
statutes affecting the financial industry. Based upon that review,
OFCCP continues to believe in the soundness of its position.
However, today's proposal differs from the 1980 final rule in that
it does not expressly state that the regulations cover Federal deposit
and share insurance. The proposal does not otherwise make reference to
the precise subject matter of particular types of covered contracts,
and therefore OFCCP no longer considers it necessary to single out
deposit and share insurance for express mention in the regulations.
OFCCP wishes to reemphasize that it will continue to maintain its
long-standing policy of imposing sanctions other than debarment of
financial institutions from future deposit or share insurance, or
cancellation, termination or suspension of a financial institution's
deposit or share insurance for violations of Section 4212.
Paragraph (c)(1) states that the interpretative guidance set out as
an appendix to the EEOC's ADA regulations may be relied on in
interpreting the parallel provisions of this part. This provision
reflects the fact that Part 60-250, as revised, incorporates the large
majority of the EEOC's nondiscrimination regulations without
substantive change (i.e., it incorporates the standards contained in
the Section 503 final rule, which, in turn, adopted the EEOC's
standards).
The first sentence of paragraph (c)(2), relationship to other laws,
states that Part 60-250 does not invalidate or limit the protections or
procedures of other laws that provide greater or equal protection for
the rights of special disabled veterans or veterans of the Vietnam era.
This parallels a provision of the Section 503 final rule (first
sentence of Sec. 60-741.1(c)(2)), which, in turn, is based on an
analogous provision in the EEOC regulations (Sec. 1630.1(c)(2)).
The second sentence of paragraph (c)(2) is modeled on parallel
provisions of the Section 503 regulation, which parallels
Sec. 1630.15(e) of the EEOC regulations. Paragraph (c)(2) of today's
proposal 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. This provision would permit, for
example, the use of medical and safety standards or inquiries that are
mandated or necessitated by other Federal laws or regulations. For
instance, under this provision, 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). Some of these standards
necessitate the review and analysis of workers' medical information by
employers as well as by agency officials; such action by a contractor,
absent this provision, might violate proposed Sec. 60-250.23 on Medical
examinations and inquiries.
Section 60-250.2 Definitions
The proposal substantially supplements the definitions section
contained in the current Section 4212 regulations (Sec. 60-250.2) by
incorporating a number of new terms and by modifying or deleting a
number of existing terms. Most notably, the proposal incorporates into
the definitions section relevant terms and definitions from the Section
503 final rule at Sec. 60-741.2 without substantive change. This was
done to foster consistency between the two sets of regulations. A
number of these terms were adopted by the Section 503 final rule from
the ADA's regulations (``essential functions,'' ``reasonable
accommodation,'' ``undue hardship,'' ``qualification standards,'' and
``direct threat''). Accordingly, the interpretative guidance contained
in the EEOC's ADA regulations may be consulted regarding the
application of these specific terms (with the exception of
``qualification standards,'' which the guidance does not address). A
number of existing definitions also would be deleted or revised in
order to conform to the parallel provisions in the Section 503
[[Page 50083]]
final rule. Similarly, several definitions that are not in the existing
VEVRAA rule, but were included in the 1980 final rule, would not be
carried forward here. Further, the proposal incorporates amendments
that have been made to Section 4212 since the regulations were
originally issued in 1976. Moreover, in contrast to the existing rule,
which sets out the defined terms in alphabetical order, the proposal
arranges the definitions by subject matter, and sets out each defined
term as a letter-designated paragraph. This change in organization is
intended to make the terms more easily understandable and to conform to
the Section 503 final rule.
Section 60-250.2(a) ``Act''
This definition of ``Act'' is substantially identical to the
current definition.
Section 60-250.2(b) ``Equal Opportunity Clause''
OFCCP proposes to substitute the term ``equal opportunity clause''
for the term ``affirmative action and nondiscrimination clause''--which
is used in the current regulations and refers to a specific set of
obligations imposed under Section 4212 that must be set out in all
contracts and subcontracts covered by the Act (see proposed Sec. 60-
250.5). The purpose of this revision is to conform the terminology used
in the Section 4212 regulations with that used in OFCCP's regulations
implementing Executive Order 11246 (see 41 CFR Part 60-1) (which also
is adopted by the Section 503 final rule).
Section 60-250.2(c) ``Secretary''
OFCCP proposes to revise the definition of ``Secretary''--which
refers to the Secretary of Labor in the current regulations--to include
a designee of the Secretary. This revision would permit the Secretary
to delegate authority under Section 4212 to the Deputy Secretary and
other subordinates. The definition of the term ``Assistant Secretary,''
which appears in the current regulations, is therefore no longer
necessary, and thus is omitted in this proposal. Similarly, the
definition of ``rules, regulations and relevant orders of the Secretary
of Labor'' contained in the current regulations, which makes reference
to the designee of the Secretary, also is omitted as it is unnecessary.
Section 60-250.2(d) ``Deputy Assistant Secretary''
OFCCP proposes to substitute a definition of ``Deputy Assistant
Secretary'' for the definition of ``Director'' in the current
regulations to reflect a corresponding redesignation of the position
effective February 14, 1994. This substitution is made throughout the
proposal.
Section 60-250.2(e) ``Government''
The proposed definition of this term is substantially identical to
the current definition.
Section 60-250.2(f) ``United States''
OFCCP proposes to revise the current definition of ``United
States'' by deleting the references contained therein to the Panama
Canal Zone and the Trust Territory of the Pacific Islands, and by
incorporating references to the Northern Mariana Islands and Wake
Island.
Section 60-250.2(g) ``Recruiting and Training Agency''
The proposal incorporates the current definition of this term
without change.
Section 60-250.2(h) ``Contract''
The proposed definition of ``contract'' revises the current
regulatory definition--``any Government contract''--to subsume the term
``subcontract.'' This approach is consistent with that used in the 1980
final rule (Sec. 60-1.3), and is intended to obviate the need to make a
separate reference to ``subcontract'' each time ``contract'' is
referenced to demonstrate that a particular provision applies to both
contracts and subcontracts. Accordingly, the proposal generally
references the term ``subcontract'' only when necessary to the context.
Section 60-250.2(i) ``Government Contract''
The definition of ``Government contract'' is revised, consistent
with the definition of the term contained in the Section 503 final
rule, to clarify that covered contracts include those under which the
Government is a seller of goods or services as well as those under
which it is a purchaser. Hence, the proposal substitutes a reference to
contracts for the ``purchase, sale or use'' of goods or services for
the existing reference to the ``furnishing'' of goods or services. The
proposal also revises the definition to make it clear, consistent with
the language of the Act, that only contracts regarding personal
property (including those for the use of real property where such use
constitutes personal property) and ``nonpersonal'' services are
covered. Further, the proposed revision consolidates within the
definition of ``Government contract'' definitions for four terms
referenced therein which are separately defined in the current
regulations (``modification,'' ``contracting agency,'' ``person,'' and
``construction''), and establishes a subdefinition for ``personal
property,'' which is not contained in the current regulations. (The
definition of the term ``agency'' in the current regulations--``any
contracting agency of the government''--has been deleted as
unnecessary; references to ``contracting agency'' have been substituted
in this proposal for references to ``agency'' wherever appropriate to
the context.) The relevant subdefinitions are made applicable to the
definition of ``subcontract'' at Sec. 60-250.2(l) as well. Under the
1980 final rule, the definition of ``Government contract'' contains a
clarification with regard to the coverage of personal property, which
is similar to, but less precise than, the clarification contained in
today's proposal.
Section 60-250.2(j) ``Contractor''
Currently, the term is defined as a prime contractor or
subcontractor; the proposal revises the definition to refer to a prime
contractor or subcontractor ``having a contract of $10,000 or more.''
Because the term ``contractor'' encompasses the term ``subcontractor,''
references to the latter term generally have been deleted from the
regulations by the proposal.
Section 60-250.2(k) ``Prime Contractor''
The proposal revises the definition of ``prime contractor'' to
incorporate a reference to persons holding a contract ``of $10,000 or
more.''
Section 60-250.2(l) ``Subcontract''
The proposal incorporates changes which conform the current
definition of ``subcontract'' to the proposed definition of
``Government contract'' (Sec. 60-250.2(i)); that is, as revised, the
definition references agreements for the ``purchase, sale or use of
personal property or nonpersonal services (including construction).''
Section 60-250.2(m) ``Subcontractor''
The proposed definition is substantially identical to the current
regulatory definition. The 1980 final rule's definition contains a
subdefinition of ``First-tier subcontractor.'' OFCCP no longer believes
that such a subdefinition is necessary.
Section 60-250.2(n) ``Special Disabled Veteran''
The current regulations (at Sec. 60-250.2) make reference to the
term ``disabled veteran'' rather than the term ``special disabled
veteran,'' which is employed by the proposal. ``Disabled
[[Page 50084]]
veteran'' is defined under current Sec. 60-250.2 as a person entitled
to disability compensation under laws administered by the Veterans
Administration for disability rated at 30 percent or more, or a person
whose discharge or release from active duty was for a disability
incurred or aggravated in the line of duty. The proposed definition
incorporates amendments to Section 4212 and the Act's definitional
section (42 U.S.C. 4211) which resulted in a change in terminology and
an expansion of the class of veterans protected under the Act. See the
Veterans' Rehabilitation and Education Amendments of 1980 (Pub. L. 96-
466, 94 Stat. 2207); the Veterans' Compensation, Education, and
Employment Amendments of 1982 (Pub. L. 97-306, 96 Stat 441); the
Veterans' Compensation and Program Improvements Amendments of 1984
(Pub. L. 98-223, 98 Stat. 43); and the Department of Veterans Affairs
Codification Act (Pub. L. 102-83, 95 Stat. 403).
The 1980 amendments substituted the term ``special disabled
veteran'' for ``disabled veteran'' and a reference to a service-
connected disability for the reference to a disability incurred or
aggravated in the line of duty. The 1982 amendments revised the
definition of ``special disabled veteran'' so as to include veterans
who are not in receipt of compensation from the Veterans Administration
because they have elected to receive military retirement pay in lieu
thereof. The 1984 amendments expanded the term to include veterans with
disability ratings of 10 or 20 percent. Finally, in order to reflect
the redesignation of the name of the Veterans' Administration, the 1991
amendments substituted a reference to laws administered by the
Secretary of the Department of Veterans Affairs--for the reference to
laws administered by the Veterans Administration. For the sake of
clarity, the proposal incorporates a subdefinition (at subparagraph
(2)) for the term ``serious employment handicap,'' which is derived
from the definition of the term contained in 38 U.S.C. 3101).
Section 60-250.2(o) ``Qualified Special Disabled Veteran''
Currently, the regulations define the term as one who is capable of
performing a particular job with reasonable accommodation. The proposal
parallels the counterpart definition (``qualified individual with a
disability'') contained in the Section 503 final rule, which was
modeled on the counterpart ADA definition. The proposal specifies that
one is ``qualified'' if he or she satisfies the job-related
requirements of the position held or sought, and can perform the
essential functions of the position with or without reasonable
accommodation. It should be noted that, with respect to the application
process, an applicant will be deemed qualified if he or she meets
eligibility requirements applicable to that process with or without
reasonable accommodation.
Section 60-250.2(q) ``Essential Functions''
The proposal incorporates the Section 503 definition of ``essential
functions,'' which states that the term refers to the fundamental job
duties, but not marginal functions, of the position in question. The
current regulations do not contain an analogous definition.
Section 60-250.2(r) ``Reasonable Accommodation''
The proposal incorporates a definition which parallels the Section
503 final rule definition. The current Section 4212 regulations do not
contain a definition of the term. However, the adoption of the
definition does not represent a change in OFCCP policy. Appendix A
should be consulted for general guidance on a contractor's duty to
provide reasonable accommodation.
Section 60-250.2(s) ``Undue Hardship''
The proposal adopts the Section 503 final rule definition, which
provides that ``undue hardship'' means a significant difficulty or
expense related to the provision of an accommodation, as determined in
light of specific enumerated factors, including the net cost of the
accommodation (after deducting available outside funding) and the
overall financial resources of the facility providing the accommodation
and of the contractor. Although ``undue hardship'' is not defined in
the current regulations, there is a reference to the concept in current
Sec. 60-250.6(d). That section, similar to the proposal, states that a
contractor must make a reasonable accommodation for a special disabled
veteran, unless such accommodation would impose an undue hardship, and
that the extent of the accommodation duty is determined based on such
factors as business necessity and financial cost. Thus, the proposed
definition is consistent with current OFCCP requirements.
Section 60-250.2(t) ``Qualification Standards''
The proposal adopts the definition set forth in the Section 503
final rule. The current regulations do not contain an analogous
definition, but the proposed definition does not represent a change in
current OFCCP policy.
Section 60-250.2(u) ``Direct Threat''
The definition found in the Section 503 final rule has been
incorporated. The definition states that a ``direct threat'' is a
significant safety or health risk--as determined based on an
individualized assessment in light of specified factors--that cannot be
eliminated or reduced by reasonable accommodation. The factors
considered include the duration of the risk, the nature and severity of
the potential harm, the likelihood that the potential harm will occur
and the imminence of the potential harm. OFCCP's current regulations do
not contain a parallel definition. However, OFCCP has relied on
essentially the same concept when applying its current regulations.
Section 60-250.6(c)(2) of the current regulations requires that when a
contractor uses a job qualification requirement which tends to screen
out special disabled veterans, the contractor shall demonstrate that
such requirement is consistent with business necessity and safe
performance of the job in question. In determining whether a particular
health or safety risk is sufficient to justify, consistent with the
requirements of that section, the exclusion of a special disabled
veteran from an employment opportunity, OFCCP currently considers
essentially the same factors (the likelihood, seriousness and imminence
of potential injury associated with the disability) as are set out by
the proposal.
Section 60-250.3 Exceptions to the Definitions of ``Special Disabled
Veteran'' and ``Qualified Special Disabled Veteran''
Paragraph (a)(1) establishes an exclusion from the Act's protection
with respect to alcoholics whose current use of alcohol prevents
performance of the essential functions of the job in question or which
would pose a direct threat to property or to health or safety. A
parallel exclusionary proviso is contained in the Section 503 final
rule at Sec. 60-741.3(a). This Section 503 provision was derived from
an amendment to the Rehabilitation Act by Section 512(a) of the ADA
providing that the terms ``individual with a disability'' and
``qualified individual with a disability'' do not include alcoholics
whose current alcohol use poses such a threat. The revision does not
represent a substantive change in the scope of protection for special
disabled veterans under Section 4212 or a change in OFCCP policy.
Rather, the proposal merely clarifies that when a special disabled
veteran's current
[[Page 50085]]
alcohol use would prevent performance of the essential functions of the
job in question or would pose a direct threat to property or to health
or safety, he or she is not protected under the statute. It is
axiomatic that such individuals would not be otherwise protected under
this proposal (and under the current regulations) because their alcohol
use either prevents performance of essential job functions, and thus
renders them ``unqualified'' (see definition of ``Qualified special
disabled veteran'' at Sec. 60-250.2(o)), or constitutes a direct threat
(see definition of ``Direct threat'' at Sec. 60-250.2(u) and Direct
threat defense at Sec. 60-250.22). Paragraph (a)(2) clarifies that the
contractor has the same obligation to provide a reasonable
accommodation for the mental and physical limitations of an alcoholic--
in an effort to enable the individual to perform the essential
functions of the job in question or to eliminate or reduce the direct
threat posed by an alcoholic's current use of alcohol--as the
contractor has with respect to any other disabling condition. OFCCP
believes that this provision is necessary to clarify that paragraph
(a)(1) does not create a blanket exclusion for all alcoholics whose
condition presents a direct threat.
Paragraph (b) establishes an exclusion from the Act's protection
with respect to currently contagious diseases or infections that is
analogous to the exclusion regarding alcoholics set forth in paragraph
(a)(1). The provision is patterned after a proviso set out in the
Section 503 final rule at Sec. 60-741.3(c) (which was derived from a
1988 amendment to the Rehabilitation Act by the Civil Rights
Restoration Act, Public Law 100-259, 29 U.S.C.A. 706(8)(D) (West Supp.
1992)). The proviso does not represent a substantive change in the
scope of protection under Section 4212 or a change in OFCCP policy.
Rather, it merely provides a clarification regarding the scope of
protection under the Act similar to that set out in paragraph (a)(1).
Paragraph (c)(2) sets out a clarification regarding a contractor's
duty to provide reasonable accommodation for a covered veteran with a
currently contagious disease or infection which is analogous to
paragraph (a)(2) above.
Today's proposal does not adopt the Section 503 final rule's
exclusion regarding illegal drug use (see Sec. 60-741.3(a) of those
regulations). That provision states that the terms ``individual with a
disability'' and ``qualified individual with a disability'' do not
include a person who is currently engaging in the illegal use of drugs,
when the contractor acts on the basis of such use. The language was
derived from an amendment to the definition section of the
Rehabilitation Act by Section 512(a) of the ADA (29 U.S.C.A.
706(8)(C)(i) (West Supp. 1992)) which significantly altered the
existing coverage provisions for drug users under Section 503. The
statutory amendment did not affect Section 4212, and OFCCP declines to
adopt an analogous regulatory exclusion with respect to Section 4212.
Section 60-250.4 Coverage and Waivers
Proposed paragraph (a)(1), which sets out the general monetary
jurisdiction requirement, is derived from existing Sec. 60-250.3(a)(1),
and is substantially identical to that section.
Proposed paragraph (a)(2), which relates to contracts for
indefinite quantities, is derived from existing Sec. 60-250.3(a)(2),
and is substantially identical to that section.
Proposed paragraph (a)(3) narrows the existing provision regarding
the applicability of Part 60-250 to work performed outside the United
States. The proposal is consistent with the Section 503 final rule. It
makes VEVRAA applicable only to employment activities within the United
States, which includes actual employment within the United States and,
in limited circumstances, decisions made within the United States
regarding employment abroad. Proposed paragraph (a)(4) is identical to
current Sec. 60-250.3(a)(4), and proposed paragraph (a)(5) is identical
to current Sec. 60-250.3(a)(5).
For the sake of clarity, proposed paragraph (b) consolidates
current Secs. 60-250.3(b)(1) and (3), which relate to waivers and
withdrawal of waivers, respectively. The portion of the paragraph
relating to the grant of waivers has been revised to permit the Deputy
Assistant Secretary for Federal Contract Compliance Programs to
unilaterally grant waivers in the national interest. Currently,
Sec. 60-250.3(b)(1) permits the head of an agency to grant such a
waiver with the concurrence of the Deputy Assistant Secretary. When
this provision was issued, enforcement responsibilities under the Act
were carried out by individual Federal compliance agencies as well as
by OFCCP. During this period, the granting of waivers was coordinated
between these compliance agencies and OFCCP. All compliance
responsibility was consolidated into OFCCP in 1978; accordingly, such a
requirement is no longer appropriate.
Proposed paragraph (b)(2), which relates to national security
waivers, is substantially identical to current Sec. 60-250.3(b)(2).
Paragraph (5) of the current rule, `` Facilities not connected with
contracts,'' has been integrated as subparagraph (b)(3) to provide
clarity and be consistent with Section 503.
Section 60-250.5 Equal Opportunity Clause
This section is derived from current Sec. 60-250.4. The current
heading for the section, ``Affirmative action clause,'' has been
revised to read ``Equal opportunity clause,'' in order to conform it
with the analogous provision contained in the Section 503 final rule
(Sec. 60-741.5) and the regulations implementing Executive Order 11246
(41 CFR 60-1.4). The heading for the clause itself has been revised to
reference ``Equal Opportunity'' rather than ``Affirmative Action.''
With respect to paragraph (a)1 (current paragraph (a)), the proposal
expands and reorganizes the listing of the prohibited types of
disability discrimination to conform to the parallel provisions in the
Section 503 final rule, which in turn, were derived from analogous
provisions in the EEOC ADA regulations (Sec. 1630.4). Further, in
contrast to the current paragraph (a), the proposal states that the
discrimination prohibition applies also to apprenticeship and on-the-
job training under 38 U.S.C. 3687. This provision, which is set out in
current Sec. 60-250.6(a) Affirmative action policy, practice and
procedures, is more properly included in the equal opportunity clause.
(The statutory citation has been revised to reflect an amendment which
resulted in its redesignation.)
Proposed paragraph (a)2, which is based on current paragraph (b),
provides that the contractor shall immediately list its employment
openings with the local office of the state employment service system.
In contrast to the proposal, current paragraph (b) states that the
contractor shall also provide other reports to such local office as may
be required. It is not possible to ascertain burden reduction since the
requirement was suspended by OMB on January 29, 1982 (47 FR 4258).
OFCCP has found that this additional reporting requirement is
unnecessary, and therefore, declines to carry the provision forward.
Further, current paragraph (b) exempts state and local government
agencies covered by Section 4212 from the reporting requirements set
out in paragraphs (d) and (e). As discussed below, the reporting
requirement in current paragraph (d) is not carried forward by this
proposal, and therefore, the reference to that requirement is omitted
from the proposed equal opportunity clause.
[[Page 50086]]
Proposed paragraph 3 is identical to current paragraph (c). Current
paragraph (d) is not carried forward by today's proposal. That
paragraph requires that the contractor file, on a quarterly basis,
reports with the state employment service system regarding the number
of disabled veterans and veterans of the Vietnam era that the
contractor hired during the reporting period. This provision was
suspended on January 29, 1982 (47 FR 4258) because the reporting
requirement had not been approved by OMB under the Paperwork Reduction
Act. The suspension was to remain in effect pending final action on the
Department's 1980 proposal to amend Part 60-250. A similar annual
reporting requirement is currently imposed on contractors covered under
Section 4212 pursuant to 41 CFR Part 61-250; that requirement is
administered by the Department's Office of the Assistant Secretary for
Veterans' Employment and Training. Accordingly, the requirements set
out in current paragraph (d) are no longer necessary.
Proposed paragraphs 4 and 5 are identical to current paragraphs (e)
and (f), with the exception of a few minor editorial changes. The
provisions of current paragraph (g) have been incorporated into
proposed paragraph 6. Proposed paragraphs 6 (i), (ii) and (iv), which
define terms used in connection with the mandatory listing requirement,
are identical to the current paragraphs (h) (1), (2) and (3), with the
exception of one minor editorial change. Proposed paragraph 6(iii),
which defines the term ``executive and top management,'' is new.
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.
Our proposed definition of ``executive and top management'' is based
upon the definition of ``executive'' found in the regulations
implementing the Fair Labor Standards Act, 29 CFR 541.1, except that we
do not propose to adopt the compensation levels specified in subsection
(f) of that regulation. Proposed paragraphs 7, 8, 10 and 11, which set
out additional contractor requirements, are substantially identical to
current paragraphs (i) through (m), respectively, with the exception of
a number of editorial changes. For instance, proposed paragraph 10
(current paragraph (l)) makes reference to a ``labor organization''
rather than to a ``labor union.''
Proposed paragraph 9, regarding contractor posting of notices, is
similar to current paragraph (k). In conformance with the final Section
503 rule, the posting requirement specifically commits the contractor
to ensure that the notices are accessible to applicants and employees
who are special disabled veterans. A contractor may make these notices
accessible, for example, by having the notice read to a visually
disabled individual or by lowering the posted notice so that it may be
read by a person in a wheelchair.
Further, current Secs. 60-250.20 to 60-250.24 have been
consolidated (without substantive change) into this section as
paragraphs (b)-(f), respectively. These provisions, which relate to the
equal opportunity clause, are more logically included here than as
separate sections. Proposed paragraph (d) provides that the contractor
may make the equal opportunity clause a part of the contract by simply
citing to Sec. 60-250.5. In contrast, current Sec. 60-250.22 states
that the equal opportunity clause may be incorporated into the contract
by reference. The intent of the proposal is to clarify the current
requirement. The proposal does not use the term ``incorporation by
reference,'' inasmuch as the regulations of the Office of Federal
Register at 1 CFR Part 51 preclude the use of the term in this context.
Subpart B--Discrimination Prohibited
Section 60-250.20 Covered Employment Activities
This section, which lists various types of employment practices to
which Part 60-250 applies, is substantially identical to Sec. 60-741.20
of the Section 503 final rule. In turn, the Section 503 regulation is
patterned after Sec. 1630.4 of the EEOC regulations. The current
Section 4212 regulations contain a similar, but less detailed, listing
in the affirmative action clause (Sec. 60-250.4(a)).
Section 60-250.21 Prohibitions
This section, which sets out in detail the various types of
prohibited discriminatory practices, parallels the Section 503 final
rule (Sec. 60-741.21), which, in turn, generally adopts and
consolidates the EEOC regulations at Sec. 1630.5 through 1630.11. A
number of the prohibitions set out in this section are paralleled in
the current Section 4212 regulations or are implicit from those
regulations. However, the analogous existing provisions are organized
under the rubric of ``affirmative action policy, practices, and
procedures'' (Sec. 60-250.6). As noted above, today's proposal
reorganizes the regulations so as to clearly define which obligations
are components of the affirmative action program requirement, and thus
applicable only to contractors that employ 50 or more persons and hold
a contract valued at $50,000 or more (see discussion of Subpart C
below).
The introductory sentence of this section, which states that
``discrimination'' includes the acts described in proposed Secs. 60
250.21 and 60-250.23, is patterned after the final sentence of
Sec. 1630.4 of the EEOC regulations. Paragraph (a), which sets out a
general prohibition regarding disparate treatment discrimination, is
patterned after Sec. 60-741.21(a) of the Section 503 regulations. The
Section 503 final rule has no direct counterpart in the EEOC
regulations, but rather was proposed to clarify that disparate
treatment is one form of prohibited discrimination under those
regulations. Paragraphs (b) through (h), which specify other types of
prohibited discrimination, are new to the Section 4212 regulations and
parallel their EEOC and Section 503 final rule counterparts, except as
discussed below.
Proposed paragraph (f)(1), which provides that it is unlawful to
fail to make reasonable accommodation, unless the contractor can
demonstrate an undue hardship, is substantially similar to current
Sec. 60-250.6(d). As stated in the discussion in the EEOC's
interpretative guidance appendix, the contractor is not required to
provide a reasonable accommodation unless the special disabled veteran
informs the contractor that an accommodation is needed. However, if an
employee who is a known special disabled veteran is having difficulty
performing his or her job, the contractor may inquire whether the
employee is in need of a reasonable accommodation. (This contrasts with
the duty of a contractor covered by the written affirmative action
program requirement; such a contractor must inquire about the need for
an accommodation in that circumstance. See proposed Sec. 60-250.44(d).)
Further, although proposed paragraph (f)(2), which states that it is
unlawful to deny employment opportunities based on the need to make a
reasonable accommodation, is not paralleled in the current regulations,
that obligation is implicit in current Sec. 60-250.6(d).
The first sentence of proposed paragraph (g)(1)--which prohibits
the use of selection criteria that screen out special disabled veterans
or veterans of the Vietnam era, unless the selection criteria are shown
to be job-related and consistent with business necessity--is
essentially the same as the requirements contained in parallel
provisions of the Section 503 final rule (Sec. 60-741.21(g)(1)) and the
EEOC regulation (Sec. 1630.10), as well as the current VEVRAA
regulation
[[Page 50087]]
(Sec. 60-250.6(c)(2)). The last sentence in that paragraph, which
limits the purposes for which a contractor may rely on a covered
veteran's military record, is substantially similar to language
contained in current Sec. 60-250.6(b). Paragraph (g)(2) provides that
the Uniform Guidelines on Employee Selection Procedures (which, among
other things, set out certain requirements for validating employee
selection procedures which adversely affect particular race, sex or
ethnic groups) do not apply to Part 60-250. An analogous statement is
made by EEOC in its appendix discussion of the parallel EEOC regulation
(Sec. 1630.10).
Paragraph (h) requires that the contractor administer employment
tests to eligible applicants or employees with impaired sensory,
manual, or speaking skills in a format that does not require the use of
the impaired skills, unless such skills are the factors that the test
purports to measure. This provision is substantially identical to the
counterpart provision in the Section 503 final rule, which, in turn, is
derived from Sec. 1630.11 of the EEOC regulations.
Paragraph (i), compensation, is derived from current Sec. 60-
250.6(e), and (with the exception of some editorial changes) is
substantially similar to that section.
Section 60-250.22 Direct Threat Defense
This section clarifies that a contractor may exclude from
employment opportunities persons who cannot perform essential functions
without posing a direct health or safety threat to themselves or
others. This provision is substantially identical to the parallel
provision in the Section 503 final rule (Sec. 60-741.22), which is
derived from, and substantially similar to, Sec. 1630.15(b)(5) of the
EEOC regulations.
Section 60-250.23 Medical Examinations and Inquiries
This section incorporates the Section 503 final rules' provisions
regarding prohibited and permitted medical examinations and inquiries
(Sec. 60-741.23), which, in turn, are patterned after the counterpart
provisions in the EEOC's regulations (Secs. 1630.13 and 1630.14).
The provisions contained in this section generally have no
counterpart in the current Section 4212 regulations. In some cases, the
provisions in this section significantly contrast with the current
regulations. In this regard, proposed paragraph (b)(2) permits the
contractor to require an employment entrance medical examination or
inquiry after making an offer of employment to a job applicant and to
condition an offer of employment on the results of such an examination
or inquiry if all similarly situated employees are subjected to such an
examination or inquiry, and proposed paragraph (b)(3) permits a
contractor to require a job-related medical examination or inquiry of
an employee. Proposed paragraph (b)(5) specifies that examinations
conducted pursuant to paragraph (b)(2) need not be job-related;
however, if a special disabled veteran is screened out from an
employment opportunity as a result of such examination or as the result
of another examination, the contractor must demonstrate that the
exclusionary criteria are job-related and consistent with business
necessity. In contrast, the current Section 4212 regulations do not
limit the use of medical examinations to the post-employment-offer
context or require that examinations or inquiries of employees be job-
related. Rather, current Sec. 60-250.6(c)(3) states that a contractor
may conduct a pre-employment medical examination, provided that the
results of such examination are used consistently with other
requirements in Sec. 60-250.6 (Affirmative action policy, practices,
and procedures). However, similar to proposed paragraph (b)(5), current
Sec. 60-250.6(c)(2) provides that the contractor may not use physical
or mental qualification requirements to screen out qualified disabled
veterans, unless such requirements are shown to be job-related and
consistent with business necessity.
Proposed paragraph (c), Invitation to self-identify, references
Sec. 60-250.42, which specifies that a contractor shall invite
applicants to self-identify as being covered by the Act and wishing to
benefit under the affirmative action program. Proposed paragraph (d)
specifies, with certain limited exceptions, that information obtained
under this section shall be kept confidential.
Section 60-250.24 Drugs and Alcohol
Proposed paragraph (a), which sets out permitted types of
contractor practices relating to the regulation of workplace drug and
alcohol use, and proposed paragraph (b), which governs the permissible
use of drug testing, are identical to the revised Section 503
regulation (60-741.24), which, in turn, is patterned after the EEOC
regulations at Secs. 1630.16(b) and (c), respectively. As discussed
below, paragraphs (a) and (b) contain minor technical changes (as well
as a number of editorial changes) from the EEOC rule. This section is
not paralleled by any provisions contained in the current Section 4212
regulations. Sections 1630.16(b)(5) and (6) of the EEOC regulations
state that employees may be required to comply with the regulations of
the Departments of Defense and Transportation and of the Nuclear
Regulatory Commission regarding alcohol and drugs. In contrast,
proposed paragraphs (a)(5) and (a)(6) state that employees also may be
required to comply with similar regulations of other Federal agencies.
Paragraph (b)(3) states that any medical information obtained from
a drug test, except information regarding the illegal use of drugs, is
subject to the requirements of Secs. 60-250.23(b)(5) and (d). In turn,
proposed Sec. 60-250.23(b)(5) states that the contractor must
demonstrate that criteria which are used to screen out special disabled
veteran applicants or employees are job-related and consistent with
business necessity; and proposed Sec. 60-250.23(d) provides for certain
confidentiality requirements with regard to medical information. The
parallel EEOC regulation (Sec. 1630.16(c)(3)) fails to reference
medical confidentiality requirements, but the EEOC appendix discussion
regarding the section notes that the information in question should be
treated as a confidential medical record.
Section 60-250.25 Health Insurance, Life Insurance and Other Benefit
Plans
Proposed paragraphs (a), (b), (c) and (e) of this section provide
that the contractor may administer benefit plans in a manner which is
not inconsistent with state law, or administer a benefit plan that is
not subject to state laws that regulate insurance, provided that such
activities are not used as a subterfuge to evade the purposes of Part
60-250. These provisions are substantially identical to the Section 503
final rule at Sec. 60-741.25. Paragraphs (a), (b), (c) and (e) of those
regulations, in turn, are patterned after EEOC's regulations at
Sec. 1630.16(f)(1)-(f)(4), respectively. Proposed paragraph (d), which
provides that the contractor may not deny a qualified special disabled
veteran equal access to insurance based on disability alone if the
disability does not pose increased risks, is derived from the EEOC
appendix discussion regarding Sec. 1630.16(f).
Subpart C--Affirmative Action Program
Subpart C is derived from Secs. 60-250.5 (Applicability of the
affirmative action program requirement) and 60-250.6 (Affirmative
action policy, practice, and procedures) of the current Section 4212
regulations. This subpart revises and reorganizes those sections to
incorporate only obligations which are applicable to
[[Page 50088]]
contractors with a written affirmative action program requirement,
i.e., those that employ 50 or more employees and hold a contract of
$50,000 or more. See proposed Sec. 60-250.40(a). Provisions currently
in Sec. 60-250.6 that are applicable to all covered contractors have
been incorporated into proposed Subparts B (Discrimination Prohibited)
or E (Ancillary Matters).
Section 60-250.40 Applicability of the Affirmative Action Program
Requirement
Paragraph (a), which has no parallel in the current Section 4212
regulations, clarifies the application of the requirements of Subpart
C. Paragraphs (b) and (c)--which specify the contractor's duties with
regard to the preparation and maintenance of its affirmative action
program (AAP), and the updating of its AAP, are derived from current
Secs. 60-250.5(a) and (b), respectively. Minor clarifying changes or
organizational changes have been made with respect to these provisions.
For instance, current Sec. 60-250.5(a) states that the AAP shall set
forth the contractor's policies, practices and procedures ``in
accordance with Sec. 60-250.6 of this part.'' The reference to this
particular section has been omitted to clarify that the contractor's
AAP should address all relevant practices under Part 60-250, not only
those that relate to this particular section. Current Sec. 60-250.5(a)
also states that contractors presently holding contracts shall update
their AAPs within 120 days of the effective date of Part 60-250. This
provision has been incorporated into a separate effective date section
(Sec. 60-250.86). Current Sec. 60-250.5(d), which sets out the ``self-
identification'' procedures, has been incorporated with revisions at
proposed Sec. 60-250.42.
Paragraph (d) states that the contractor shall generally submit its
AAP within 30 days of a request by OFCCP and that it shall also make
the document promptly available on-site upon such request. These
provisions, which are not contained in the current regulations, have
been included in order to help ensure that OFCCP has access to the
contractor's AAP as soon as needed.
Section 60-250.41 Availability of Affirmative Action Program
With the exception of some stylistic differences, this section,
which provides that the AAP shall be available to any applicant or
employee at a location and time which shall be posted at each
establishment, is identical to current Sec. 60-250.5(c).
Section 60-250.42 Invitation to Self-identify
On ____________, 1996, OFCCP published (______ F.R. ______) an
interim rule amending Sec. 60-250.5(d) of the current regulations
relating to invitations to self-identify. The purpose of the interim
rule was to conform the invitation to self-identify requirement under
VEVRAA with the requirement contained in the new Section 503 final rule
(______ F.R. ______).
This proposal mirrors the VEVRAA interim rule and the Section 503
final rule. Paragraph (a) requires the contractor, after making an
offer of employment and before the applicant begins his or her
employment duties, to invite applicants to self-identify in order to
benefit from the contractor's affirmative action program. In addition,
under paragraphs (b) and (c) a pre-offer invitation is permitted only
in two limited circumstances: if the invitation is made when the
contractor actually is undertaking affirmative action at the pre-offer
stage; and if the invitation is made pursuant to a Federal, state or
local law requiring affirmative action for special disabled or Vietnam
era veterans. This approach is 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.''
Paragraph (d) of the proposed rule requires that the invitation
inform the individual that the request to benefit under the
contractor's affirmative action program may be made immediately or at
any time in the future. This is intended to help ensure that the
individual is aware that he or she is not precluded from making the
request at any time in the future merely because an initial request was
made or because he or she failed to make the request immediately in
response to the invitation. For example, a special disabled veteran
simply may not choose to self-identify before beginning work, but may
wish to do so later.
The contractor may develop its own invitation for this purpose,
although an acceptable form of such invitation is set forth in Appendix
B.
Section 60-250.43 Affirmative Action Policy
This section, which sets out the contractor's fundamental
affirmative action obligations, clarifies that such obligations include
a duty to refrain from discrimination; that the contractor is required
to take affirmative action efforts with respect to all levels of
employment, including the executive level; and that such requirements
apply to all employment activities. This provision is substantially
similar to current Sec. 60-250.6(a) (which does not contain the
reference to the prohibition against discrimination). The remaining
paragraphs of current Sec. 60-250.6 are comprised of the specific
required affirmative action policy, practices and procedures. As
discussed below, these provisions have been incorporated with
modification into proposed Sec. 60-250.44.
Section 60-250.44 Required Contents of Affirmative Action Programs
The provisions contained in this section were derived from existing
Sec. 60-250.6, and have been organized, as stated in this section's
introductory sentence, to set out the minimum required AAP ingredients.
Although a number of the requirements are also applicable to
contractors that do not have a written AAP obligation, i.e., those
contractors that do not employ 50 or more employees and hold a contract
of $50,000 or more, all requirements applicable to AAP contractors are
included in this section for the sake of clarity. In addition, this
section sets out suggested affirmative action activities that the
contractor is encouraged to undertake in order to comply with the
specified minimum affirmative action requirements. The contractor has
discretion in undertaking these suggested activities or other
activities in satisfying the mandatory requirements. In some cases,
obligations that are not mandatory under the current regulations have
been made mandatory in this proposal and vice versa.
Paragraph (a) states that the contractor's AAP shall include an
equal opportunity policy statement and specifies the contents--both
suggested (relevant information about the contractor's policy) and
required (notification that the contractor is obligated, as specified
in proposed Sec. 60-250.69, to refrain from harassment or
intimidation). The proposal is intended as a clarification of an
existing regulatory provision. Current Sec. 60-250.6(g) states that the
contractor should adopt, implement and disseminate an equal opportunity
policy (through various enumerated methods), but does not expressly
require that it be included in the contractor's AAP or indicate what
should be contained in the statement.
With the exception of its third sentence, paragraph (b), which
specifies that the contractor must ensure that its personnel processes
provide for careful consideration of the job qualifications of known
special disabled veterans or veterans of the Vietnam era, is
substantially similar to existing Sec. 60-
[[Page 50089]]
250.6(b). The third sentence of the paragraph, which states that the
contractor shall ensure that its personnel processes are free from
stereotyping, is derived from current Sec. 60-250.6(i)(2), except that
the requirement is made mandatory in the proposal, and is a suggested
method of compliance in the current regulation. OFCCP believes that
this requirement is central to the Act's affirmative action obligation,
and therefore should be mandatory.
Paragraphs (c)(1) and (2) are substantially similar to current
Secs. 60-250.6(c)(1) and (2), respectively. Like current Sec. 60-
250.6(c)(1), proposed paragraph (c)(1) requires that the contractor
periodically review all physical and mental job qualification standards
to ensure that qualification standards that tend to screen out special
disabled veterans are job-related for the position in question and
consistent with business necessity. In contrast to the proposal, the
current regulation also states that such standards must be consistent
with safe performance of the job. It is unnecessary to incorporate the
reference to ``safe performance'' in the proposal because that concept
is subsumed by the concept of business necessity. Proposed paragraph
(c)(1), also in contrast with the current regulation, clarifies that
the contractor must ensure that such exclusionary job standards concern
essential functions of the job in issue. This clarification is based on
the counterpart provision in the Section 503 final rule (Sec. 60-
741.44(c)(1)), which, in turn, is based on the EEOC's interpretation of
analogous requirements under the ADA. (See the discussion regarding
Sec. 1630.10 in the appendix to the ADA's regulations.) Proposed
paragraph (c)(2) requires that the contractor demonstrate that its use
of physical or mental selection standards which tend to screen out
qualified special disabled veterans is job-related and consistent with
business necessity. This paragraph contains the same type of
modifications that have been incorporated into proposed paragraph
(c)(1).
Paragraph (c)(3) incorporates, for the sake of clarity, a statement
similar to the statement in proposed Sec. 60-250.22 that the contractor
may exclude from employment opportunities persons who pose a direct
threat to health or safety.
Paragraph (d) requires the contractor to make reasonable
accommodation for a known otherwise qualified special disabled veteran,
unless it can demonstrate an undue hardship on the operation of its
business. The proposal is similar to current Sec. 60-250.6(d) (first
sentence), except that it clarifies that the accommodation duty is owed
only to an ``otherwise qualified'' special disabled veteran. As stated
in proposed Appendix B, a special disabled veteran is ``otherwise
qualified'' if he or she is qualified for a job, except that, because
of a disability, he or she needs a reasonable accommodation to be able
to perform the job's essential functions. The second sentence of the
current regulation, which sets out factors that are relevant to the
determination of the extent of the contractor's accommodation
obligation, is not incorporated in proposed paragraph (d). A similar
more detailed listing of factors is included in the proposed definition
of ``undue hardship'' (Sec. 60-250.2(s)(2)). Proposed paragraph (d)
also requires that where an employee who is a known special disabled
veteran is having 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 inquire
whether the employee is in need of a reasonable accommodation. The
current regulations do not contain a parallel provision. This
requirement is an essential component of the contractor's affirmative
action duty. Absent such a requirement, the contractor would be free to
take adverse action against a known special disabled veteran (who might
be otherwise qualified) merely because the veteran failed to request an
accommodation. A special disabled veteran who is in need of an
accommodation may fail to seek out an accommodation for any number of
reasons; for instance, he or she may not perceive the need for an
accommodation or may be unaware of his or her right to obtain an
accommodation. Because the provision applies only to an employee the
contractor knows to be a special disabled veteran (that is, in the
situation where it is reasonable to conclude that a performance problem
may be related to a veteran's disability) and does not require the
contractor to speculate about the need for accommodation in equivocal
situations, OFCCP believes that it fairly balances the rights of both
the veteran and employer.
Paragraph (e) provides that the contractor must develop procedures
to ensure that its employees are not harassed because of their
disability or Vietnam era veteran status. The current regulations, at
Sec. 60-250.6(h)(1)(ii), contain a similar provision which is not
mandatory (supervisors ``should'' be advised that the contractor is
obligated to prevent harassment). Upon reconsideration, OFCCP believes
that harassment is a sufficiently important issue to warrant mandatory
affirmative steps to ensure that it does not occur.
Paragraph (f) provides that the contractor has a duty to take
actions such as outreach and recruitment activities to effectively
recruit special disabled veterans and veterans of the Vietnam era as
are appropriate in light of the circumstances, including the
contractor's size and resources and the extent to which existing
practices are adequate. The paragraph also sets out a listing of
appropriate activities that contractors should take in this regard, and
specifies that the contractor has discretion in undertaking these or
other activities. This section is generally consistent with current
Sec. 60-250.6(f), but incorporates a number of clarifying
modifications. Some of the suggested outreach and recruitment
activities listed in the current regulations concern policies regarding
the internal dissemination of the contractor's policy, and therefore
have been incorporated into proposed Sec. 60-250.44(g), which addresses
that subject.
Also, the proposal consolidates into paragraph (f) (without
substantive change) some portions of current Sec. 60-250.6(f) (positive
recruitment and external dissemination of policy), and Sec. 60-250.6(i)
(development and execution of AAPs). Proposed paragraph (f)(1), which
states that the contractor should obtain assistance from specified
types of recruitment sources, is derived from current Sec. 60-
250.6(f)(4). That provision has been edited for clarity and references
to recruitment sources have been updated. Proposed paragraph (f)(2),
which states that the contractor should conduct formal briefing
sessions with recruitment source representatives, is derived from
current Sec. 60-250.6(i)(4). Proposed paragraph (f)(3), which relates
to recruitment efforts at educational institutions, consolidates
current Secs. 60-250.6(i)(7) and (8). Proposed paragraph (f)(5), which
specifies that special disabled veterans and veterans of the Vietnam
era should participate in outreach and recruitment activities, is based
on current Secs. 60-250.6(i)(6).
Proposed paragraph (f)(8) establishes a new suggested recruitment
activity (which parallels Sec. 60-741.44(f)(7) of the Section 503 final
rule) that has no counterpart in the current regulations. That
paragraph states that the contractor, in making hiring decisions,
should consider applicants who are known special disabled veterans or
veterans of the Vietnam era for other positions for which they may be
qualified when the position applied for is unavailable. OFCCP believes
that such a practice will be effective in helping to maximize the
employment
[[Page 50090]]
opportunities of special disabled veterans and veterans of the Vietnam
era. In many cases, the consideration of applicants for such
alternative jobs will not place any added burdens on the contractor's
personnel system (because, for instance, that practice is already
standard for applicants in general). Indeed, this practice may
frequently benefit a business inasmuch as it can obviate the need to
seek additional qualified candidates.
Proposed paragraph (g)(1), which sets out requirements which are
complementary to proposed paragraph (f), states that the contractor
must develop internal procedures to assure supervisory, management and
other employee cooperation and participation in the contractor's
efforts to implement its affirmative action obligation. Like paragraph
(f), paragraph (g)(2) lists suggested procedures that the contractor
should undertake to communicate its affirmative action obligation
internally. For the most part, the provisions in these paragraphs are
derived from existing Sec. 60-250.6(g). However, in contrast to the
proposal, that section provides that the contractor's duty to engage in
internal dissemination activities is not mandatory. Upon
reconsideration, OFCCP concludes, as stated in proposed paragraph
(g)(1) itself, that the contractor's outreach program will not be
effective without internal support, which, in turn, requires that the
contractor engage in reasonable efforts to disseminate its affirmative
action policy to all employees. Accordingly, OFCCP believes that the
internal communication duty should be mandatory. Further, paragraph
(g)(1) incorporates a clarification (like that contained in proposed
paragraph (f)) that the scope of the contractor's efforts shall depend
on all the relevant circumstances.
Moreover, as noted above, relevant provisions from current Sec. 60-
250.6(f) are consolidated (without substantive change) into this
paragraph as well: proposed paragraph (g)(1) combines provisions from
current Secs. 60-250.6(f)(1) and (g) (introductory sentence). Proposed
paragraph (g)(2)(ii), which states that the contractor should inform
all employees and prospective employees of its affirmative action
policy and schedule employee meetings to discuss the policy, is derived
from current Secs. 60-250.6(f)(3) and (g)(4). Current Sec. 60-
250.6(g)(9) states that the contractor, as a suggested internal
dissemination procedure, should post its affirmative action policy,
including a statement that employees and applicants who are special
disabled veterans are protected from disability-related harassment, on
company bulletin boards. Today's proposal incorporates this provision
as a mandatory requirement at Sec. 60-250.44(a).
Paragraph (h), which requires the contractor to implement an audit
system to measure the effectiveness of its AAP and to undertake
necessary action to bring its program into compliance, is derived
(without substantive modification) from current Sec. 60-250.6(h)(3)
(where the provision is set out as one of several specified
responsibilities of the contractor's affirmative action manager). In
contrast to the current regulation, today's proposal sets out the
provision as a separate subsection in order to emphasize its
importance. Further, the proposal clarifies that the requirement is
mandatory.
Paragraph (i) provides that the contractor shall designate an
official of the company as an affirmative action manager and provide
that individual with necessary top management support and staff. This
provision is derived from current Sec. 60-250.6(h). In view of the
importance of designating an official as responsible for the
implementation of the contractor's AAP, the proposal, in contrast to
the current regulation, provides that the contractor's duty in this
regard is mandatory. Additionally today's proposal does not incorporate
the current regulation's listing of activities in which the affirmative
action manager should engage, inasmuch as such a listing would
unnecessarily duplicate other provisions contained in the proposal.
Paragraph (j), which is based on current Sec. 60-250.6(i)(3),
requires the contractor to train all employees involved in the
personnel process to ensure that the contractor's AAP commitments are
implemented. Because of the importance of this requirement, the
proposal, in contrast to the current regulations, specifies that it is
mandatory and sets it out as a separate subsection.
Subpart D--General Enforcement and Complaint Procedures
As stated above, this subpart expands the current provisions
contained in Subpart B of the current regulations and conforms many of
those provisions to the parallel provisions contained in the
regulations implementing Executive Order 11246 (41 CFR Part 60-1,
Subpart B), which have been incorporated in the Section 503 final rule.
Upon careful consideration, OFCCP has concluded that in the specific
instances where the regulations are conformed there is no reason to
apply different procedures under the Act, the Executive Order or
Section 503. Further, this subpart incorporates one stylistic change
throughout. The current regulations in some instances make reference to
violations of (or compliance with) the affirmative action clause (i.e.,
equal opportunity clause) and/or to violations of (or compliance with)
the Act or this part. For the sake of consistency, the proposal
generally makes reference to violations (or compliance with) ``the Act
or this part.''
OFCCP recognizes that differences and disputes about the
requirements of the Act and the regulations may arise between
contractors and special disabled veterans and veterans of the Vietnam
era as a result of misunderstandings. Such disputes frequently can be
resolved more effectively through informal negotiation or mediation
procedures, rather than through the formal enforcement process set out
in the regulations. Accordingly, OFCCP will encourage efforts to settle
such differences through alternative dispute resolution, provided that
such efforts do not deprive any individual of legal rights under the
Act or the regulations. (See the Department of Labor's policy on the
use of alternative dispute resolution. 40 FR 7292, Feb. 28, 1992.)
Section 60-250.60 Compliance Reviews
Paragraph (a) of this section clarifies existing regulatory
authority for OFCCP to conduct compliance reviews with regard to
contractors' implementation of their affirmative action obligations,
and provides that the review shall consist of a comprehensive analysis
of all relevant practices, and that recommendations for appropriate
sanctions shall be made. Paragraph (b) specifies that where
deficiencies are found, reasonable conciliation efforts shall be made
pursuant to Sec. 60-250.62. Paragraph (c) provides that, during a
compliance review, OFCCP will verify whether the contractor has
properly filed its annual Veterans' Employment Report (VETS-100) with
the Assistant Secretary for Veterans' Employment and Training (OASVET)
(as required under 41 CFR Part 61-250), and that OFCCP will notify
OASVET if the contractor has not done so.
Paragraphs (a) and (b) have no parallel in the current section 4212
regulations, but are generally patterned after selected portions of the
compliance review provisions of the regulations implementing Executive
Order 11246 (41 CFR 60-1.20(a) and (b), respectively). However, the
statement
[[Page 50091]]
authorizing OFCCP to conduct compliance reviews in proposed paragraph
(a), which is included for the sake of clarity, is a new provision and
is not contained in the Executive Order regulations. Proposed
paragraphs (a) and (b) are consistent with OFCCP's existing authority
under Section 4212 and Sec. 60-250.25 of the current regulations, and
with current OFCCP practice.
Proposed paragraphs (a) and (b) are generally consistent with the
relevant provisions of the 1980 final rule at Sec. 60-1.20. The final
rule, however, does not contain an express statement regarding OFCCP's
authority. Further, in contrast to the proposal, the 1980 final rule,
in Secs. 60-1.20(a) and (b), discusses various technical internal
agency procedures regarding the conduct of compliance reviews (e.g.,
noting in paragraph (a) that compliance reviews normally are conducted
in three stages). Upon further consideration, OFCCP has determined that
it is unnecessary to incorporate these procedural statements into
today's proposal.
Moreover, today's proposal does not adopt the 1980 final rule's
preaward compliance reviews provision (Sec. 60-1.21), which is
essentially a modified version of the preaward procedures contained in
the Executive Order regulations (Sec. 60-1.21(d)). The current Section
4212 regulations do not contain a similar provision. In substance, the
1980 final rule would have required that all prospective
nonconstruction contractors and subcontractors seeking contracts
exceeding $1 million be subject to a compliance review under the Act
before the award of the contract. The 1980 final rule also would have
specified criteria that OFCCP should apply in establishing priorities
for the conduct of preaward reviews, and would have established
requirements regarding the clearance of the contract. OFCCP has
determined not to adopt a preaward compliance review procedure in
today's proposal because it believes, upon reconsideration, that the
diversion of necessary resources to support such a compliance
initiative would unduly impair its ability to effectively conduct other
compliance activities.
Paragraph (c) has no parallel in the current regulations. The
proposal, however, reflects current OFCCP practice.
Section 60-250.61 Complaint Procedures
Paragraph (a), a provision not paralleled in the current
regulations, cross-references OFCCP's and EEOC's procedural regulations
at 41 CFR Part 60-742 which govern the processing of complaints
cognizable under both Section 503 and the ADA, and specifies that
complaints filed under Part 60-250 that are cognizable under Section
503 and the ADA will be processed in accordance with those regulations.
All other procedural provisions contained in paragraphs (b) through (f)
of this proposed section shall be applicable with regard to the
processing of such complaints as well. The procedural regulations
require, among other things, that OFCCP (acting as EEOC's agent)
process and resolve complaints of employment discrimination based on
disability for purposes of the ADA (as well as for Section 503) when
there is jurisdiction under both statutes. In doing so, OFCCP is
required to apply legal standards which are consistent with the
substantive legal standards applied under the ADA. (It should be
understood that OFCCP has no enforcement authority under the ADA beyond
that specified in the procedural regulations.) The purpose of the
proposal is to ensure that an aggrieved individual's rights under the
ADA are preserved, including the right to file a private lawsuit.
(Section 4212 does not provide for a private right of action. The
complaint procedures provide the only means by which an individual may
seek redress for a violation of the Act.)
The proposal drops the provision in current Sec. 60-250.25 that the
Director of OFCCP shall be primarily responsible for the investigation
of complaints and other matters as necessary to ensure the effective
enforcement of the Act. The intent of this provision, which was
included in the regulations prior to the delegation of all compliance
authority under Section 4212 to OFCCP, was to ensure that OFCCP had
primary control with regard to the administration of the Act. The
provision is no longer necessary. The 1980 final rule would have
established similar provisions in Sec. 60-1.27 to state that the
Director may assume jurisdiction over any matter when necessary to the
enforcement of Section 4212, and that the Director may reconsider any
pending matter under the Act. OFCCP concludes that these provisions are
unnecessary, and thus declines to incorporate them in today's proposal.
Further, the provision from the 1980 final rule (Sec. 60-1.48) that
states that a contractor which has complied with the recommendations or
orders of OFCCP which it believes to be erroneous may request a hearing
and review of the alleged erroneous action, is unnecessary and is not
carried forward. That provision relates to preaward compliance reviews
(specifically, it is a means by which a contractor can avoid a contract
``pass over'' while still contesting OFCCP's review findings) and is
not needed because, as stated above, OFCCP will not be conducting
preaward reviews under the Act.
Paragraph (b), which is derived from current Sec. 60-250.26(a),
specifies that a person may, personally or by an authorized
representative, file a written complaint alleging an individual or
class-wide violation of the Act or the regulations within 300 days of
the alleged violation with OFCCP (at a specified location) or with the
Veterans' Employment and Training Service (VETS) directly or through
the Local Veteran's Employment Representative (LVER) or his or her
designee at the local state employment service office. The provision
also specifies that such parties will assist veterans in preparing
complaints and will promptly refer them to the OFCCP. In contrast to
the proposal, current Sec. 60-250.26(a) provides that an individual may
file a complaint only with VETS (current Sec. 60-250.26(a) is otherwise
identical in substance to the proposal with regard to the
responsibilities of LVERs and the state employment service). OFCCP's
proposal is based on an amendment to the complaint procedure set out in
Section 4212(b) by section 509 of the Veterans' Rehabilitation and
Education Amendments of 1980. Public Law 96-466, 94 Stat. 2207. The
amendment deleted from Section 4212(b) a provision that specified that
complaints may be filed with the Veterans' Employment Service and
promptly referred to the Secretary of Labor, and substituted a
provision that specifies that complaints may be filed with the
Secretary, who shall promptly investigate such complaints and take
appropriate action. The intent of this amendment was to permit the
Secretary of Labor the flexibility to designate a representative, in
addition to VETS, to receive complaints directly from aggrieved
individuals. See H.R. Rep. No. 1154, 96th Cong., 2d Sess. 77 (1980).
The Department has determined, in view of OFCCP's current role in
processing complaints, that the agency should act in that capacity.
(The Secretary previously delegated authority for enforcement of
Section 4212 to the Department's Employment Standards Administration,
the parent agency of OFCCP. 52 FR 48466, December 22, 1987.)
The current regulation requires that the complaint be filed within
180 days of the alleged violation, and does not indicate the location
where the complaint should be filed. The proposal adopts a 300-day
filing deadline, which
[[Page 50092]]
is consistent with the complaint-filing deadline in the Section 503
final rule. The current provision, unlike the proposal, does not
specify the office at which the complaint may be filed. The location
for filing is included to assist the complainant.
Further, the proposal does not incorporate the internal review
procedure contained in current Sec. 60-250.26(b) or in the 1980 final
rule (Sec. 60-250.23(f)). The current regulation provides that, when an
employee of a contractor files a complaint, and the contractor has an
internal review procedure, the contractor will be permitted 60 days to
process the complaint under that procedure. If there is no resolution
of the matter which is satisfactory to the complainant within 60 days,
the complaint then is processed by OFCCP. The 1980 final rule would
have provided that the complaint may be referred to the contractor for
internal review with the employee's consent. OFCCP has found that the
current procedure has not been particularly effective in providing
expeditious and satisfactory complaint resolutions. Therefore, OFCCP
has decided not to carry forward either a mandatory or voluntary
complaint referral procedure. Although there is no regulatory
requirement regarding informal resolution of complaints, OFCCP
nevertheless strongly encourages parties to attempt to do so whenever
possible.
Paragraph (c)(1) specifies the required contents of complaints, and
generally is consistent with current Sec. 60-250.26(c). In contrast to
the current regulation, the proposal specifies that the complainant
must state the pertinent dates concerning the alleged violation (the
information need only be provided to the best of the complainant's
recollection). Also, the description of the documentation that the
individual must submit to show that he or she is a special disabled
veteran or a veteran of the Vietnam era has been updated (see proposed
paragraph (b)(1)(iii)). The proposal drops current Sec. 60-250.7, which
specifies the type of documentation that a complainant must submit
regarding his or her special disabled status, because it is
unnecessarily duplicative of proposed paragraph (b)(1)(iii).
Paragraph (c)(2) establishes new Section 4212 procedures regarding
third party complaints. The procedures are patterned after the
analogous provisions of the Section 503 final rule (Sec. 60-
741.61(c)(2)), and the EEOC's procedural regulations applicable to the
ADA (29 CFR 1601.7(a)). This paragraph specifies that a third party
complaint need not identify by name the person on whose behalf it is
filed, although the person filing the complaint shall provide
identifying information to OFCCP and other information required under
paragraph (c)(1); and that OFCCP shall verify the authorization of the
complaint by the person on whose behalf it is made, who may request
that his or her identity remain confidential. The purpose of these
provisions is to help prevent retaliation against persons seeking to
exercise rights protected under the Act by preserving the
confidentiality of the complaint process while also ensuring both that
OFCCP has sufficient information to properly investigate the complaint
and that the complaint is properly authorized. The 1980 final rule
would have provided (at Sec. 60-250.23(c)) that signed third party
complaints will be accepted whether or not the third party signing the
complaint is the authorized representative. Upon reconsideration, OFCCP
believes that authorization to file a complaint is an appropriate
requirement.
Paragraph (d), which establishes procedures for handling a
complaint which contains insufficient information, is substantially
identical to current Sec. 60-250.26(d).
Paragraph (e), which is based on the first sentence of current
Sec. 60-250.26(e), provides that the Department of Labor shall promptly
investigate complaints. OFCCP has determined not to incorporate the
statement contained in the second sentence of the current regulation
regarding the contents of a complete case record, inasmuch as this is
primarily an internal procedural matter, and thus need not be a part of
the regulations.
Paragraph (f)(1), which states that the complainant and the
contractor shall be notified where the complaint investigation finds no
violation or the Deputy Assistant Secretary decides not to refer the
matter to the Solicitor of Labor for enforcement proceedings against
the contractor, is consistent with the first sentence of current
Sec. 60-250.26(g). However, the proposal does not incorporate the final
sentence of that provision, which states that the complainant may
request that the Deputy Assistant Secretary review the finding or
decision. Instead, the paragraph incorporates a provision which
specifies that the Deputy Assistant Secretary, on his or her own
initiative, may reconsider the finding or decision. OFCCP has found
that the existing review procedure has not been productive and has
therefore determined to drop the procedure.
Paragraph (f)(2) provides that the Deputy Assistant Secretary will
review all determinations of no violation that involve complaints that
are not also cognizable under the ADA. This will help ensure accuracy
of determinations regarding claims raised by persons who would not have
an opportunity to seek relief in Federal court. OFCCP believes that the
proposed review procedure will provide an adequate check on its no
violation findings and decisions not to initiate proceedings.
Paragraph (f)(3) sets out notification procedures regarding the
Deputy Assistant Secretary's reconsideration of investigative findings.
Paragraph (f)(4), which states that the contractor shall be invited
to participate in conciliation pursuant to Sec. 60-250.62 where there
is a finding of violation, is substantially similar to the first
sentence of current Sec. 60-250.26(g)(2). As discussed immediately
below, the proposal incorporates (with modification) other portions of
that section into a separate section on conciliation agreements.
Section 60-250.62 Conciliation Agreements and Letters of Commitment
The purpose of this section is to conform the Section 4212
regulatory procedures regarding conciliation agreements and letters of
commitment to the substance of the parallel procedures contained in the
Executive Order regulations (41 CFR 60-1.33). Proposed paragraph (a),
which incorporates without substantive change paragraph (a) of the
Executive Order regulation, requires OFCCP, where it finds a material
violation of the Act, to enter into a written agreement with the
contractor which provides for appropriate remedial action, provided
that the contractor is willing to do so and OFCCP determines that
settlement on that basis (rather than referral for potential
enforcement) is appropriate. The proposal is conceptually similar to
the corresponding current Section 4212 regulation (Sec. 60-
250.26(g)(2)), but incorporates a number of clarifying changes which
reflect current OFCCP practice under Section 4212. For instance,
although the current regulation, like the proposal, provides for the
use of written settlement agreements under which the contractor shall
commit to take corrective action, it does not: use the term
``conciliation agreement''; expressly state that ``make whole
remedies'' shall be addressed by the agreement; or expressly require
that OFCCP determine that settlement through such an agreement (rather
than referral for potential enforcement) is appropriate. The last
sentence of the proposal, which is derived from the current Section
4212 regulation,
[[Page 50093]]
provides that the agreement shall specify the date for the completion
of the needed remedial action, which shall be the earliest date
possible.
However, the proposal does not incorporate the provision from the
current regulation which states that the contractor may be considered
in compliance on condition that the commitments contained in the
agreement are kept. Further, the proposal does not incorporate a
related provision from the 1980 final rule. The 1980 rule, at Sec. 60-
1.20(c), states the taking of corrective actions by the contractor
pursuant to a conciliation agreement does not preclude OFCCP from
making future determinations of noncompliance where OFCCP either finds
that the contractor's actions are not sufficient to achieve compliance,
or it uncovers violations not previously revealed in an investigation.
Upon reconsideration, OFCCP concludes that these provisions are
unnecessary and should not be incorporated into the regulations,
because the concerns they reflect are addressed by general legal
principles.
Paragraph (b), which clarifies the distinction between conciliation
agreements and letters of commitment, is incorporated without
substantive change from paragraph (b) of the Executive Order regulation
(41 CFR 60-1.33(b)).
The 1980 final rule (at Sec. 60-1.26(a)) is substantially similar
to proposed paragraph (a), but would have made a number of technical
revisions that are not reflected in the proposal (e.g., paragraph (c)
of the final rule clarified when a conciliation agreement becomes
effective). OFCCP has determined not to incorporate these technical
revisions, inasmuch as relevant guidance is already provided in OFCCP's
Federal Contract Compliance Manual.
Section 60-250.63 Violation of Conciliation Agreements and Letters of
Commitment
This section, which specifies the required notification and
enforcement procedures relating to the contractor's violation of a
conciliation agreement or letter of commitment, is derived from the
Executive Order regulations (41 CFR 60-1.34), and contains a number of
clarifying modifications. Most notably, paragraph (a)(4) of the
proposal contains a clarification that in enforcement proceedings
related to violation of a conciliation agreement, OFCCP is not required
to present proof of the underlying violations resolved by the
agreement. The intent of this provision is to remove any doubt that
OFCCP need not litigate claims that have already been resolved through
the agreement. Although the current Section 4212 regulations do not
contain provisions parallel to the proposal, the proposal reflects
OFCCP's current practice under the Act.
Section 60-250.64 Show Cause Notices
This section is substantially identical to Sec. 60-1.28 of the
Executive Order regulations. It provides that when the Deputy Assistant
Secretary finds a violation he or she may issue to the contractor a
notice requiring it to show cause, within 30 days, why enforcement
proceedings should not be instituted; the provision also states that
such a notice is not a prerequisite to enforcement proceedings. The
current Section 4212 regulations do not contain a comparable provision.
The 1980 final rule (at Sec. 60-1.25) would have incorporated
considerably more detailed procedures regarding show cause notices than
are contained in the proposal; for instance, that rule would have
incorporated specific rules on the issuance of the notice and its
contents. OFCCP believes that it is more appropriate to incorporate
such procedures into its Compliance Manual, and has done so.
Section 60-250.65 Enforcement Proceedings
This section generally conforms the provisions governing Section
4212 enforcement proceedings to those under the Executive Order
regulations (Sec. 60-1.26(a)(2)), and reflects OFCCP's long-standing
practice under the Act. Similar to the Executive Order regulation,
proposed paragraph (a)(1) provides, in part, that where a violation has
not been corrected in accordance with applicable conciliation
procedures, an administrative enforcement proceeding may be instituted
to enjoin the violations, to seek appropriate make whole relief and to
impose appropriate sanctions. The current Section 4212 regulations are
consistent with this part of proposed paragraph (a)(1), but do not
expressly state what relief will be sought in the proceedings. See
Secs. 60-250.26(g)(3) and 60-250.28(a) (the contractor shall be
provided a formal hearing where a violation has not been resolved by
informal means) and 60-250.29(a) (an opportunity for a formal hearing
shall be provided where a violation is not resolved informally and a
hearing is requested or the Director proposes to impose a sanction).
The above-referenced provisions from the current regulations are
subsumed within proposed paragraph (a)(1), and therefore are not
separately adopted by the proposal. The proposal at paragraph (a)(1)
also differs from the current Section 4212 regulations as well as the
Executive Order regulation in the following respects: It provides that
enforcement proceedings also may be instituted where OFCCP determines
that referral for formal enforcement (rather than settlement) is
appropriate; and it specifies that the enforcement referral will be
made to the Solicitor of Labor. Further, paragraph (a)(1) of the
proposal clarifies that OFCCP may seek relief for aggrieved individuals
identified either during a compliance review or a complaint
investigation whether or not such individuals have filed a complaint
with OFCCP. This clarification responds to an argument that has
sometimes been raised by contractors that relief under the Act is
available only to persons who have filed a complaint with OFCCP. OFCCP
concludes that such a limitation on available relief is clearly
inconsistent with the Act.
Finally, paragraph (a)(1) (paralleling the counterpart provision in
the Section 503 final rule at Sec. 60-741.65(a)(1)), again contrasting
with both the current Section 4212 regulations and the Executive Order
regulations, states that interest on back pay shall be compounded
quarterly at the percentage rate established by the Internal Revenue
Service for the underpayment of taxes. This provision responds to the
ruling of the Department of Labor's Assistant Secretary for Employment
Standards in OFCCP v. Washington Metropolitan Area Transit Authority,
84-OFC-8 (orders dated August 23 and November 17, 1989) that simple
interest, rather than compounded interest, should be used in the
calculation of back pay awards under Section 503. The rationale of that
ruling is equally applicable to Section 4212. OFCCP had a longstanding
policy of requiring that interest on back pay awards under Section 4212
be compounded; such policy is consistent with the case law under Title
VII of the Civil Rights Act of 1964. OFCCP believes that it must
reinstate this policy in order to ensure that aggrieved individuals
obtain ``make whole'' relief.
Proposed paragraph (a)(2) provides that the Deputy Assistant
Secretary, in addition to the use of administrative enforcement
proceedings, may seek appropriate judicial action, including injunctive
relief, to enforce the contractual provisions set forth in the
regulations' equal opportunity clause. This provision is substantially
identical to current Sec. 60-250.28(b).
The proposal differs substantively from the 1980 final rule's
enforcement procedures, which appear at Sec. 60-1.29, in that it does
not incorporate the
[[Page 50094]]
procedures contained in paragraphs (i) and (j) of that section.
Paragraph (i) of that section provides that the Department may refer
alleged violations of the Act by financial institutions to an
appropriate financial regulatory agency, and states that such agency
may take whatever action it deems appropriate. OFCCP considers this
provision unnecessary at this time, and therefore does not propose to
carry it forward. Paragraph (j) states an enforcement policy under
which the Department will not debar financial institutions from future
Federal deposit or share insurance, or cancel, terminate or suspend
existing Federal deposit or share insurance. OFCCP wishes to reassure
the public that it does not intend to debar or cancel a financial
institution's deposit or share insurance. This has been OFCCP's long-
standing policy, even in the absence of a regulation mandating that
result. Indeed, OFCCP has repeatedly stated on the record in litigation
regarding financial institutions that it does not seek debarment or
cancellation of deposit and share insurance. OFCCP will maintain that
policy. Upon reconsideration, however, OFCCP believes that it is
unnecessary to specify this policy in the regulations. The regulations
do not generally specify the precise manner in which the agency will
exercise its enforcement powers with regard to particular types of
contractors.
Proposed paragraph (b), which pertains to hearing practice and
procedure under the Act, is derived from Sec. 60-250.29(b) of the
current Section 4212 regulations. Proposed paragraph (b)(1), like
current paragraph (b)(1), provides that hearings conducted under the
Act shall be governed by the hearing rules applicable to enforcement of
Executive Order 11246 (41 CFR Part 60-30). Proposed paragraph (b)(1),
revising current paragraph (b)(1), states that the Rules of Evidence
set out in the hearing rules applicable to the Department's
Administrative Law Judges shall also apply to such hearings. These
rules, which were issued in 1990, are generally applicable to the
Department's formal adversarial adjudications. In contrast to the
current regulation, proposed paragraph (b)(1) requires that the
Department's final administrative order under a Section 4212 case be
issued within one year from the date of the issuance of the
Administrative Law Judge's recommended decision, or the submission of
the parties' exceptions and responses to exceptions to such decision
(if any), whichever is later. OFCCP believes that this time limit is
needed in order to ensure that aggrieved individuals obtain expeditious
relief.
Proposed paragraph (b)(2), which designates the specific officials
in the Office of the Solicitor who may file administrative complaints,
corresponds to the last sentence of current paragraph (b)(1). This
proposed paragraph incorporates some changes in nomenclature.
Proposed paragraph (b)(3), which incorporates conforming changes to
the terminology in the hearing rules for purposes of Part 60-250, is
substantially identical to current paragraph (b)(2).
Section 60-250.66 Sanctions and Penalties
Paragraphs (a) and (b), which respectively specify that OFCCP may
seek to withhold progress payments on a contract or terminate a
contract to enforce compliance with the Act, are substantially
identical to current Secs. 60-250.28 (c) and (d). Similarly, proposed
paragraph (d), which provides that the contractor shall be provided an
opportunity for a formal hearing before the imposition of sanctions or
penalties, is substantially similar to current Sec. 60-250.29(a).
Proposed paragraph (c) authorizes OFCCP to impose fixed-term
debarments. However, proposed paragraph (c)--which provides that a
contractor may be debarred from future contracts for either a fixed
period of not less than six months but no more than three years--
contrasts with the current regulations, which expressly permit only
indefinite-period debarments. In this regard, the current regulations
(at Sec. 60-250.28(e)) simply establish authority for the imposition of
debarments, and (at Sec. 60-250.50) provide that a debarred contractor
may be reinstated as an eligible contractor by demonstrating that it
has established and will continue to carry out employment practices in
compliance with the Act. Explicit regulatory authority to impose
debarment for a minimum fixed-term is necessary to ensure the continued
future compliance of some contractors. OFCCP wishes to ensure the
regulated community that it does not intend to seek a fixed term
debarment for minor, technical violations of the law. (This change is
consistent with Sec. 60-741.66(c) of the Section 503 final rule.)
OFCCP believes the fixed-term debarment sanction will be
particularly effective in encouraging compliance among the limited
class of recalcitrant contractors who repeatedly break their promises
of future compliance with respect to affirmative action and
recordkeeping requirements. Fixed-period debarments will serve as a
more effective deterrent in these cases than the current practice of
reinstating the contractor upon its demonstration of compliance. Under
the current procedure the contractor may be reinstated without
incurring any economic loss for some violations (e.g., a contractor
which has failed to develop an AAP can simply do so to be eligible for
reinstatement, provided that it can demonstrate that it will remain in
compliance). As discussed below, pursuant to proposed Sec. 60-250.68, a
contractor debarred for a fixed term will not be automatically
reinstated upon such a showing. In making his or her determination as
to whether reinstatement of such a contractor is appropriate under
proposed Sec. 60-250.68, the Deputy Assistant Secretary shall
additionally consider, among other factors, the severity of the
violation which resulted in the debarment and whether the contractor's
reinstatement would impede the effective enforcement of the Act or this
part.
The proposal drops the provision contained in current Sec. 60-
250.27 that noncompliance with the contractor's affirmative action
clause obligations is a ground for taking appropriate action for
noncompliance. This issue is already addressed in proposed Sec. 60-
250.66.
Section 60-250.67 Notification of Agencies
This proposed section, which provides that OFCCP shall ensure that
the heads of all agencies are notified of debarments, is substantially
similar to current Sec. 60-250.30, which requires the Director to
notify agencies ``of any action for noncompliance taken against a
contractor.'' However, in contrast to the proposal, current Sec. 60-
250.30 also addresses the granting by a contracting agency of waivers
in the national interest. This provision is not carried forward,
because, as discussed above (see discussion regarding proposed Sec. 60-
250.4(b)(1)), OFCCP unilaterally grants such waivers, and no longer
shares enforcement under Section 4212 with other agencies.
Moreover, the proposal drops current Sec. 60-250.31, which requires
the Director to distribute a list of debarred contractors to all
executive departments and agencies. This function is currently
performed by the General Services Administration. The 1980 final rule
would have required (at Sec. 60-1.30) that OFCCP promptly notify the
Comptroller General of the United States regarding contract
cancellations and debarments. OFCCP, which currently follows this
practice, does not believe it necessary to
[[Page 50095]]
incorporate this provision into the regulations. Further, that section
of the final rule would have required that OFCCP take appropriate steps
to notify prime contractors of the debarred contractor's ineligibility
for subcontracts. Upon reconsideration, OFCCP concludes that the
incidence of prime contractors contracting with debarred firms is not
significant enough to justify the administrative burdens this provision
would place on the agency.
Section 60-250.68 Reinstatement of Ineligible Contractors
This section provides that a contractor that is debarred for an
indefinite period may request reinstatement at any time, and that a
contractor debarred for a fixed period may request reinstatement after
six months. In the case of either type of debarment the contractor is
required to show that it has established and will carry out employment
practices in compliance with the Act. Additionally, in determining
whether reinstatement is appropriate for a contractor that has been
debarred for a fixed period, the Deputy Assistant Secretary also shall
consider such factors as the severity of the violation which resulted
in the debarment, the contractor's attitude towards compliance, the
contractor's past compliance history and whether the contractor's
reinstatement would impede the effective enforcement of the Act or this
part. The section is derived from current Sec. 60-250.50. The current
regulation, in contrast to the proposal, does not address fixed-period
debarments and does not provide the contractor an opportunity to appeal
a denial of its request for reinstatement.
As discussed above, OFCCP believes that the use of fixed-term
debarments is necessary to provide an effective deterrent with regard
to aggravated or willful violations, including failure to make or
maintain records (see discussion regarding proposed Sec. 60-250.66(c)).
Thus, contractors that have committed such violations should not be
reinstated based merely upon a showing that they are and will remain in
compliance, as in the case of indefinite-term debarments. Rather, in
addition to this showing, the Deputy Assistant Secretary's
determination should be made on a case-by-case basis after
consideration of the additional specified factors. OFCCP believes that
imposing a mandatory six-month waiting period during which the
reinstatement request may not be submitted will help deter such
violations. The proposed appeal procedure in paragraph (b) for
contractors whose reinstatement requests are denied is intended to
ensure that contractors' requests receive full and fair consideration.
The proposal adopts some of the 1980 final rule's reinstatement
procedures (Sec. 60-1.31). For instance, like the final rule, the
proposal specifies that the contractor may be subject to a compliance
review before it is reinstated, and that the matter may be referred to
an Administrative Law Judge before a final determination is made on the
reinstatement request. In contrast to the final rule, the proposal
permits the contractor to submit a petition to the Secretary appealing
a denial of a reinstatement request. The final rule would have provided
for a review by the Secretary (pursuant to the post-hearing procedures
set out in 41 CFR Part 60-30) of the Director's denial of a request
only where the Director decided to remand the matter to an
Administrative Law Judge. The final rule would have established some
additional detailed procedures that OFCCP, upon reconsideration, does
not believe need be incorporated into the regulations.
Section 60-250.69 Intimidation and Interference
Currently, the regulations provide (at Sec. 60-250.51) that the
sanctions and penalties contained therein may be exercised against any
contractor which fails to ensure that no person intimidates, threatens,
coerces or discriminates against any individual because he or she files
a complaint or otherwise participates in compliance activity under the
Act. The proposal contains a similar prohibition but specifies that the
contractor itself shall not engage in such activities and that the
contractor shall ensure that all persons under its control do not do
so, that the prohibition applies with respect to participation in
compliance activities under a Federal, state or local law which
requires equal opportunity for special disabled veterans and Vietnam
era veterans and that harassment is also prohibited. Moreover, the
proposal states that the prohibition applies with respect to an
individual's opposition to any practice that is unlawful under the Act
or similar Federal, state or local laws, and to the exercise of any
other right protected by the Act. The proposal is substantially similar
to the counterpart provision in the 1980 final rule (Sec. 60-1.28). The
intent of the proposal is to incorporate strengthened provisions that
ensure that individuals fully enjoy all rights protected under the Act,
the regulations and comparable Federal, state and local laws without
the threat of harassment or intimidation. OFCCP may seek the same range
of sanctions for a violation of this provision (such as debarment and/
or back pay) as it does for other violations of the Act.
Section 60-250.70 Disputed Matters Related to Compliance With the Act
This section clarifies that the regulations govern disputes
relative to the compliance under the Act but not other incidental
disputes such as those relating to contract costs connected with the
contractor's efforts to comply with the Act. The proposal is
substantially identical to current Sec. 60-250.32.
Subpart E--Ancillary Matters
Section 60-250.80 Responsibilities of State Employment Service Offices
This section is substantially identical to current Sec. 60-250.33
(with the addition of a few editorial changes).
Section 60-250.81 Recordkeeping
Under the current regulations (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 the proposal revises this obligation in several ways:
first it makes the record retention obligation applicable to any
personnel or employment record made or kept by the contractor, and sets
out a listing of examples of the types of records that must be
retained. This provision conforms to the analogous recordkeeping
requirement under the Section 503 (Sec. 60-741.81(a)), which, in turn,
is consistent with the requirements under Title VII of the Civil Rights
Act of 1964. (Thus, most contractors are already required to comply
with this requirement.) OFCCP proposes this change because it believes
that to monitor and enforce the Act effectively it must be assured that
it can obtain all of the contractor's personnel records (not only those
involving complaints). Access to these records will better enable OFCCP
to effectively investigate compliance with the Act by, for instance,
allowing it to evaluate the contractor's employment policies and
practices with respect to applicants and employees who are special
disabled veterans or veterans of the Vietnam era in comparison to
policies and practices that have been applied to similarly situated
applicants and employees who are not covered veterans.
Second, proposed paragraph (a) extends 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
[[Page 50096]]
contract of $150,000 or more. This approach is consistent with the
Section 503 final rule. OFCCP believes that a two-year period provides
greater assurance that relevant records will be available during
compliance reviews (during which the agency generally reviews
employment practices and activity going back two years).
Third, proposed paragraph (a) requires that when a contractor has
been notified that a complaint has been filed, that a compliance review
has been initiated or that an enforcement action has been commenced,
the contractor shall preserve all relevant personnel records until the
final disposition of the action. This provision conforms to the
corresponding recordkeeping requirement applicable to the Section 503
final rule, which, in turn, is based on the requirement applicable to
the ADA and Title VII. The purpose of this requirement is obvious--to
ensure that OFCCP can obtain all relevant documents during a compliance
investigation or enforcement action.
Proposed paragraph (b), which is generally consistent with current
Sec. 60-250.52(b), provides that the failure to preserve the records
required by proposed paragraph (a) constitutes noncompliance with the
Act. Additionally, proposed paragraph (b), in a provision that is not
paralleled in the current regulations, states that where a contractor
has destroyed or failed to preserve required records, there may be a
presumption that such records would have been unfavorable to the
contractor. Paragraph (b) further specifies, however, that the
presumption shall not apply where the contractor shows that the
destruction or failure to preserve records results from circumstances
that are outside of its control. This provision is consistent with the
corresponding provision in the Section 503 final rule (Sec. 60-
741.81(b)), which is consistent with Sec. 632.3(b)(2)(ii) of EEOC's
Compliance Manual. The intent of this provision is to deter contractors
from deliberate attempts to frustrate OFCCP's compliance monitoring and
enforcement efforts by destroying or failing to preserve records. The
adverse inference established by paragraph (b) would be used by OFCCP
in both investigations of compliance and in enforcement litigation.
Proposed paragraph (c), which has no parallel in the current
regulations, clarifies that the contractor is obligated to preserve
only those records which are created or kept on or after the effective
date of the regulations. The record retention requirements under the
current regulations remain in effect until this proposal becomes
effective in final form.
Section 60-250.82 Access to Records
This section provides that the contractor shall permit OFCCP access
to its place of business in order to conduct investigations and to
inspect and copy relevant records, and that the information obtained in
this manner shall be used only in connection with the administration of
the Act. The proposal is generally consistent with the current
corresponding Section 4212 regulation (Sec. 60-250.53). For the sake of
consistency and clarity, this section tracks the language in the
parallel Executive Order regulation (41 CFR 60-1.43).
Section 60-250.83 Labor Organizations and Recruiting and Training
Agencies
The proposal provides at paragraph (a) that when a revision of a
collective bargaining agreement may be required to conform it to the
requirements of the Section 4212 regulations, labor organizations which
are parties to such an agreement shall be given adequate opportunity to
present their views to OFCCP. Paragraph (b) states that OFCCP shall
make efforts to cause labor organizations involved with work performed
by a contractor to cooperate in the implementation of the Act. The
proposal is substantially identical to the current regulations at
Sec. 60-250.9. Similarly, proposed paragraphs (a) and (b) are
substantially identical to Secs. 60-1.9(c)(2) and (a), respectively, of
the 1980 final rule. However, the 1980 final rule would have
implemented some additional provisions: Sec. 60-1.9(b) of that rule
states that the Director of OFCCP may hold hearings with regard to the
practices and policies of labor organizations to ensure compliance with
Section 4212; Sec. 60-1.9(c)(1) provides that collective bargaining
representatives shall be given written notice of any on-site compliance
investigations; and Sec. 60-1.9(d) states that the Director may notify
any Federal, state or local agency of his or her conclusions with
respect to any labor organization's failure to cooperate with the
implementation of the Act, and that he or she may notify appropriate
Federal agencies regarding violations of Federal law. Upon further
consideration, OFCCP does not believe these additional provisions need
be incorporated into the regulations.
Section 60-250.84 Rulings and Interpretations
The proposal, which provides that rulings and interpretations of
the Act and the regulations shall be made by the Deputy Assistant
Secretary, contrasts with the corresponding current regulation
(Sec. 60-250.54), which provides that the Secretary or his or her
designee shall perform this function. The proposal designates the
Deputy Assistant Secretary as the responsible official in order to
reflect current OFCCP practice.
Section 60-250.85 Effective Date
The first sentence of this provision specifies when the regulations
take effect, and that they do not apply retroactively. The second
sentence is substantially identical to the last sentence of current
Sec. 60-250.5(a) (Applicability of the affirmative action program
requirement), but it clarifies that contractors presently holding
Government contracts are required to update their affirmative action
programs within 120 days of the effective date of these regulations
only to the extent necessary to comply with the changes made by the
final rule.
Appendix A--Guidelines on a Contractor's Duty to Provide Reasonable
Accommodation
It has been OFCCP's experience that one of the most difficult
issues that contractors encounter in attempting to comply with Section
4212 relates to the duty to provide reasonable accommodation for
special disabled veterans, and that the absence of readily accessible
clear and concise guidance on the subject has contributed to this
difficulty. The intent of proposed Appendix A, which parallels a
corresponding appendix contained in the Section 503 final rule, is to
provide such guidance. The current regulations contain no comparable
guidance. As stated at the end of the appendix, it is largely derived
from and is consistent with the discussion on the duty to provide
reasonable accommodation contained in the appendix to the EEOC
regulations. (The second paragraph of the proposed appendix, however,
contains a discussion regarding the contractor's affirmative action
duties pursuant to proposed Secs. 60-250.42 and 60-250.44(d), which is
not paralleled in the EEOC appendix.)
For the sake of brevity, proposed Appendix A condenses and
summarizes the most significant portions of the EEOC appendix regarding
the reasonable accommodation duty. The relevant portions of the EEOC
appendix are those that relate to the failure to make reasonable
accommodation (Sec. 1630.9) and to the definitions for ``reasonable
accommodation'' (Sec. 1630.2(o)) and ``undue hardship''
[[Page 50097]]
(Sec. 1630.2(p)). Additionally, some guidance in the proposed appendix
is based on a discussion from the ADA's legislative history that is not
incorporated into the EEOC's appendix. The discussion provides some
practical examples of methods that may be used to carry out the
reasonable accommodation duty (e.g., resources to consult to obtain
assistance and specific types of accommodations for particular
disabilities). Moreover, the proposed appendix (in the next to last
paragraph) provides specific guidance on the issue of providing
reasonable accommodation with respect to the employment application
process; this discussion is drawn from Appendix C of OFCCP's December
30, 1980, proposed rule (45 FR 86214).
Appendix B--Sample Invitation to Self-Identify
On May 1, 1996, OFCCP published (61 FR 19366) an interim rule
amending Appendix A of the current regulations relating to invitations
to self-identify. The purpose of the interim rule was to conform the
invitation to self-identify requirement under VEVRAA with the
requirement contained in the new Section 503 final rule (61 FR 19336).
This appendix is patterned after the VEVRAA interim rule and the
Section 503 final rule. However, this proposal also includes in the
sample invitation definitions for the terms ``special disabled
veteran'' and ``veteran of the Vietnam era.''
Appendix C--Review of Personnel Processes
Proposed Appendix C sets out an example of an appropriate set of
procedures that contractors may 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.) This appendix is generally consistent with current
Appendix B. However, the proposal drops a provision contained in the
current appendix (paragraph 3) that requires, in cases where an
applicant or employee who is a special disabled veteran or veteran of
the Vietnam era is rejected for an employment opportunity, that the
contractor append to the individual's application or personnel form a
statement comparing the qualifications of the rejected individual with
those of the person selected for the opportunity. OFCCP proposes to
omit this requirement because it has not provided sufficient assistance
to OFCCP in its enforcement and monitoring efforts under the Act to
justify the continued imposition of this fairly significant burden on
contractors.
Regulatory Procedures
Executive Order 12866
The Department is issuing this proposed rule in conformance with
Executive Order 12866. This proposal has been determined not to be
significant for purposes of Executive Order 12866 and therefore need
not be reviewed by OMB. This proposal 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 proposed 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 proposed rule, if promulgated in final, will clarify existing
requirements for Federal contractors. In view of this fact and because
the proposed rule does not substantively change existing obligations
for Federal contractors, 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 proposed rule, if promulgated in final,
will not create an unfunded Federal mandate upon any State, local or
tribal government.
Unfunded Mandates Reform Act of 1995--This proposed rule, if
promulgated in final, 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 proposed rule: extends the current one-year record retention
period to two years (for larger contractors) and makes the retention
obligation applicable to a broader range of records; requires 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
requires those contractors who, for affirmative action purposes, choose
to invite applicants and employees to identify themselves as special
disabled veterans or veterans of the Vietnam era to maintain a separate
file on such applicants and employees. The recordkeeping provisions of
this proposed rule are consistent with those contained in the Section
503 final rule. Therefore, although the recordkeeping provisions are
more expansive than those in the current VEVRAA regulations, they do
not result in increased recordkeeping burdens. Information collection
under the Section 503 regulations, and under the VEVRAA regulations, is
covered by OMB control number 1215-0072.
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, and Veterans.
Signed at Washington, D.C., this 23rd day of August, 1996.
Robert B. Reich,
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 proposed to
be withdrawn, and in Parts 60-1 and 60-30, all references to Section
402 of the Vietnam Era Veterans' Readjustment Assistance Act are
proposed to be withdrawn; and, under authority of 38 U.S.C. 4212, Title
41 of the Code of Federal Regulations, Chapter 60 is proposed to be
amended as follows:
Part 60-250 is revised to read as follows:
[[Page 50098]]
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 Exceptions to the definitions of ``special disabled
veteran'' and ``qualified special disabled veteran.''
60-250.4 Coverage and waivers.
60-250.5 Equal opportunity clause.
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 reviews.
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 Responsibilities of state employment service offices.
60-250.81 Recordkeeping.
60-250.82 Access to records.
60-250.83 Labor organizations and recruiting and training agencies.
60-250.84 Rulings and interpretations.
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 herein, 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 paragraphs (i) and (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 paragraphs (i) and (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 paragraphs (i) and (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
[[Page 50099]]
supervision, inspection, and other on-site functions incidental to the
actual construction.
(6) Personal property, as used in paragraphs (i) and (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 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)(1) 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.
(2) See Sec. 60-250.3 for exceptions to the definition in paragraph
(o)(1) of this section.
(p) Veteran of the Vietnam era means a person who:
(1) Served on active duty for a period of more than 180 days, any
part of which occurred between August 5, 1964, and May 7, 1975, and was
discharged or released therefrom with other than a dishonorable
discharge; or
(2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed
between August 5, 1964, and May 7, 1975.
(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.
[[Page 50100]]
(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 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 Exceptions to the definition of ``special disabled
veteran'' and ``qualified special disabled veteran.''
(a) Alcoholics--(1) In general. As used in this part, the terms
special disabled veteran and qualified special disabled veteran do not
include an individual who is an alcoholic whose current use of alcohol
prevents such individual from performing the essential functions of the
employment position such individual holds or desires or whose
employment, by reason of such current alcohol abuse, would constitute a
direct threat to property or to the health or safety of the individual
or others.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(a)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (a)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desires, or when the accommodation
will eliminate or reduce the direct threat to property or the health or
safety of the individual or others posed by such individual, provided
that such individual satisfies the requisite skill, experience,
education and other job-related requirements of such position.
(b) Contagious disease or infection--(1) In general. The terms
special disabled veteran and qualified special disabled veteran do not
include an individual who has a currently contagious disease or
infection and who, by reason of such disease or infection, would
constitute a direct threat to the health or safety of the individual or
others or who, by reason of the currently contagious disease or
infection, is unable to perform the essential functions of the
employment position such individual holds or desires.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(b)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (b)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desires, or when the accommodation
will eliminate or reduce the direct threat to the health or safety of
the individual or others posed by such individual, provided that such
individual satisfies the requisite skill, experience, education and
other job-related requirements of such position.
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
[[Page 50101]]
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 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
office of the state employment service system wherein the opening
occurs.
3. Listing of employment openings with the employment service
system 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 employment service system 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
system, there is no need to advise the state system of subsequent
contracts. The contractor may advise the state system 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) Appropriate local office of the state employment service
system means the local office of the Federal-state national system
of public employment offices with assigned responsibility for
serving the area where the employment opening is to be filled,
including the District of Columbia, Guam, the Commonwealth of Puerto
Rico, and the Virgin Islands.
(iii) 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 workweek to activities which are not
directly and closely related to the performance of the work
described in (a) through (d) of this paragraph 6.(iii); Provided,
that (e) of this paragraph 6.(iii) 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.
(iv) 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
[[Page 50102]]
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.
(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
[[Page 50103]]
(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 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.
[[Page 50104]]
(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 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) Except as provided in paragraphs (b) and (c) of this section,
the contractor shall, after making an offer of employment to a job
applicant and before the applicant begins his or her employment duties,
invite the applicant to inform the contractor whether the applicant
believes that he or she may be covered by the Act and wishes to benefit
under the affirmative action program.
(b) The contractor may invite special disabled veterans to self-
identify prior to making a job offer only 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
[[Page 50105]]
affirmative action for special disabled veterans.
(c) The contractor may invite veterans of the Vietnam era to self-
identify prior to making a job offer only when:
(1) The invitation is made when the contractor actually is
undertaking affirmative action for veterans of the Vietnam era at the
pre-offer stage; or
(2) The invitation is made pursuant to a Federal, state or local
law requiring affirmative action for veterans of the Vietnam era.
(d) The invitation referenced in paragraphs (a) through (c) 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 invitation also shall summarize the relevant portions of
the Act and the contractor's affirmative action program. Furthermore,
the invitation 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. If an
applicant so identifies himself or herself, 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 on persons who have self-identified and
provide that file to OFCCP upon request. This information may be used
only in accordance with this part. (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 an applicant 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.)
(e) 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.
(f) 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 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
review, 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
[[Page 50106]]
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.
The contractor shall 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. 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 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 state 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 those listed.
These procedures shall be designed to foster understanding, acceptance
and support among the contractor's executive, management, supervisory
and other employees and to encourage such persons to take the necessary
actions to aid the contractor in meeting this obligation. 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 practices are adequate.
(2) The contractor should implement and disseminate this policy
internally as follows:
(i) Include it in the contractor's policy manual;
[[Page 50107]]
(ii) Inform all employees and prospective employees of its
commitment to engage in affirmative action to increase employment
opportunities for qualified special disabled veterans and veterans of
the Vietnam era. The contractor should periodically schedule special
meetings with all employees to discuss policy and explain individual
employee responsibilities;
(iii) Publicize it in the company newspaper, magazine, annual
report and other media;
(iv) Conduct special meetings with executive, management, and
supervisory personnel to explain the intent of the policy and
individual responsibility for effective implementation, making clear
the chief executive officer's attitude;
(v) Discuss the policy thoroughly in both employee orientation and
management training programs;
(vi) Meet with union officials and/or employee representatives to
inform them of the contractor's policy, and request their cooperation;
(vii) Include articles on accomplishments of special disabled
veterans and veterans of the Vietnam era in company publications; and
(viii) When employees are featured in employee handbooks or similar
publications for employees, include special disabled veterans.
(h) Audit and reporting system. (1) The contractor shall design and
implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative
action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives
have been attained;
(iv) Determine whether known special disabled veterans and veterans
of the Vietnam era have had the opportunity to participate in all
company sponsored educational, training, recreational and social
activities; and
(v) Measure the contractor's compliance with the affirmative action
program's specific obligations.
(2) Where the affirmative action program is found to be deficient,
the contractor shall undertake necessary action to bring the program
into compliance.
(i) Responsibility for implementation. An official of the
contractor shall be assigned responsibility for implementation of the
contractor's affirmative action activities under this part. His or her
identity should appear on all internal and external communications
regarding the company's affirmative action program. This official shall
be given necessary top management support and staff to manage the
implementation of this program.
(j) Training. All personnel involved in the recruitment, screening,
selection, promotion, disciplinary, and related processes shall be
trained to ensure that the commitments in the contractor's affirmative
action program are implemented.
Subpart D--General Enforcement and Complaint Procedures
Sec. 60-250.60 Compliance reviews.
(a) OFCCP may conduct compliance reviews to determine if the
contractor maintains nondiscriminatory hiring and employment practices
and is taking affirmative action to ensure that applicants are employed
and that employees are placed, trained, upgraded, promoted, and
otherwise treated in accordance with this part during employment. The
compliance review shall consist of a comprehensive analysis and
evaluation of each aspect of the aforementioned practices, policies,
and conditions resulting therefrom. Where necessary, recommendations
for appropriate sanctions shall be made.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion
pursuant to Sec. 60-250.62.
(c) VETS-100 Report. During a compliance review, OFCCP will verify
whether the contractor has complied with its obligation, pursuant to 41
CFR Part 61-250, to file its annual Veterans' Employment Report (VETS-
100 Report) with the Office of the Assistant Secretary for Veterans'
Employment and Training (OASVET). If the contractor has failed to file
a timely VETS-100 Report, OFCCP will notify OASVET.
Sec. 60-250.61 Complaint procedures.
(a) Place and time of filing. Any applicant for employment with a
contractor or any employee of a contractor may, personally, or by an
authorized representative, file a written complaint alleging a
violation of the Act or the regulations in this part. The complaint may
allege individual or class-wide violation(s). Such complaint must be
filed within 300 days of the date of the alleged violation, unless the
time for filing is extended by OFCCP for good cause shown. Complaints
may be submitted to the OFCCP, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210, or to any OFCCP regional, district, or area
office. Complaints may also be submitted to the Veterans' Employment
and Training Service of the Department of Labor directly, or through
the Local Veterans' Employment Representative (LVER) or his or her
designee at the local state employment service office. Such parties
will assist veterans in preparing complaints, promptly refer such
complaints to OFCCP, and maintain a record of all complaints which they
receive and forward. OFCCP shall inform the party forwarding the
complaint of the progress and results of its complaint investigation.
The state employment service shall cooperate with the Deputy Assistant
Secretary in the investigation of any complaint.
(b) Contents of complaints--(1) In general. A complaint must be
signed by the complainant or his or her authorized representative and
must contain the following information:
(i) Name and address (including telephone number) of the
complainant;
(ii) Name and address of the contractor who committed the alleged
violation;
(iii) Documentation showing that the individual is a special
disabled veteran or veteran of the Vietnam era. Such documentation must
include a copy of the veteran's form DD-214, and, where applicable, a
copy of the veteran's Benefits Award Letter, or similar Department of
Veterans Affairs certification, updated within one year prior to the
date the complaint is filed, indicating the veteran's level (by
percentage) of disability, and whether the veteran has been determined
by the Department of Veterans Affairs to have a serious employment
handicap under 38 U.S.C. 3106;
(iv) A description of the act or acts considered to be a violation,
including the pertinent dates (in the case of an alleged continuing
violation, the earliest and most recent date that the alleged violation
occurred should be stated); and
(v) Other pertinent information available which will assist in the
investigation and resolution of the complaint, including the name of
any known Federal agency with which the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized
representative need not identify by name the person on whose behalf it
is filed. The person filing the complaint, however, shall provide OFCCP
with the name, address and telephone number of the person on whose
behalf it is made, and the other information specified in paragraph
(b)(1) of this section. OFCCP shall verify the authorization of such a
complaint by the person on whose behalf the complaint is made. Any such
[[Page 50108]]
person may request that OFCCP keep his or her identity confidential,
and OFCCP will protect the individual's confidentiality wherever that
is possible given the facts and circumstances in the complaint.
(c) Incomplete information. Where a complaint contains incomplete
information, OFCCP shall seek the needed information from the
complainant. If the information is not furnished to OFCCP within 60
days of the date of such request, the case may be closed.
(d) Investigations. The Department of Labor shall institute a
prompt investigation of each complaint.
(e) Resolution of matters. (1) If the complaint investigation finds
no violation of the Act or this part, or if the Deputy Assistant
Secretary decides not to refer the matter to the Solicitor of Labor for
enforcement proceedings against the contractor pursuant to Sec. 60-
250.65(a)(1), the complainant and contractor shall be so notified. The
Deputy Assistant Secretary, on his or her own initiative, may
reconsider his or her determination or the determination of any of his
or her designated officers who have authority to issue Notifications of
Results of Investigation.
(2) The Deputy Assistant Secretary will review all determinations
of no violation that involve complaints that are not also cognizable
under Title I of the Americans with Disabilities Act.
(3) In cases where the Deputy Assistant Secretary decides to
reconsider the determination of a Notification of Results of
Investigation, the Deputy Assistant Secretary shall provide prompt
notification of his or her intent to reconsider, which is effective
upon issuance, and his or her final determination after
reconsideration, to the person claiming to be aggrieved, the person
making the complaint on behalf of such person, if any, and the
contractor.
(4) If the investigation finds a violation of the Act or this part,
OFCCP shall invite the contractor to participate in conciliation
discussions pursuant to Sec. 60-250.62.
Sec. 60-250.62 Conciliation agreements and letters of commitment.
(a) If a compliance review, complaint investigation or other review
by OFCCP finds a material violation of the Act or this part, and if the
contractor is willing to correct the violations and/or deficiencies,
and if OFCCP determines that settlement on that basis (rather than
referral for consideration of formal enforcement) is appropriate, a
written conciliation agreement shall be required. The agreement shall
provide for such remedial action as may be necessary to correct the
violations and/or deficiencies noted, including, where appropriate (but
not necessarily limited to) such make whole remedies as back pay and
retroactive seniority. The agreement shall also specify the time period
for completion of the remedial action; the period shall be no longer
than the minimum period necessary to complete the action.
(b) The term conciliation agreement does not include letters of
commitment, which are appropriate for resolving minor technical
deficiencies.
Sec. 60-250.63 Violation of conciliation agreements and letters of
commitment.
(a) When OFCCP believes that a conciliation agreement has been
violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth
the violation alleged and summarizing the supporting evidence. The
contractor shall have 15 days from receipt of the notice to respond,
except in those cases in which OFCCP asserts that such a delay would
result in irreparable injury to the employment rights of affected
employees or applicants.
(2) During the 15-day period the contractor may demonstrate in
writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result
in irreparable injury to the employment rights of affected employees or
applicants, enforcement proceedings may be initiated immediately
without proceeding through any other requirement contained in this
chapter.
(c) In any proceedings involving an alleged violation of a
conciliation agreement OFCCP may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement.
(d) When OFCCP believes that a letter of commitment has been
violated, the matter shall be handled, where appropriate, pursuant to
Sec. 60-250.64. The violation may be corrected through a conciliation
agreement, or an enforcement proceeding may be initiated.
Sec. 60-250.64 Show cause notices.
When the Deputy Assistant Secretary has reasonable cause to believe
that the contractor has violated the Act or this part, he or she may
issue a notice requiring the contractor to show cause, within 30 days,
why monitoring, enforcement proceedings or other appropriate action to
ensure compliance should not be instituted. The issuance of such a
notice is not a prerequisite to instituting enforcement proceedings
(see Sec. 60-250.65).
Sec. 60-250.65 Enforcement proceedings.
(a) General. (1) If a compliance review, complaint investigation or
other review by OFCCP finds a violation of the Act or this part, and
the violation has not been corrected in accordance with the
conciliation procedures in this part, or OFCCP determines that referral
for consideration of formal enforcement (rather than settlement) is
appropriate, OFCCP may refer the matter to the Solicitor of Labor with
a recommendation for the institution of enforcement proceedings to
enjoin the violations, to seek appropriate relief, and to impose
appropriate sanctions, or any of the above in this sentence. OFCCP may
seek back pay and other make whole relief for aggrieved individuals
identified during a complaint investigation or compliance review. Such
individuals need not have filed a complaint as a prerequisite to OFCCP
seeking such relief on their behalf. Interest on back pay shall be
calculated from the date of the loss and compounded quarterly at the
percentage rate established by the Internal Revenue Service for the
underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Deputy Assistant Secretary may, within the limitations of
applicable law, seek appropriate judicial action to enforce the
contractual provisions set forth in Sec. 60-250.5, including
appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the Act and this
part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges contained in 29 CFR part 18,
subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended
findings, conclusions and decision of the Administrative Law Judge, or
the submission of exceptions and responses to exceptions to such
decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights, Regional Solicitors and Associate Regional
Solicitors.
[[Page 50109]]
(3) For the purposes of hearings pursuant to this part, references
in 41 CFR Part 60-30 to ``Executive Order 11246'' shall mean the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended;
to ``equal opportunity clause'' shall mean the equal opportunity clause
published at 41 CFR 60-250.5; and to ``regulations'' shall mean the
regulations contained in this part.
Sec. 60-250.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the
Deputy Assistant Secretary so much of the accrued payment due on the
contract or any other contract between the Government contractor and
the Federal Government may be withheld as necessary to correct any
violations of the provisions of the Act or this part.
(b) Termination. A contract may be canceled or terminated, in whole
or in part, for failure to comply with the provisions of the Act or
this part.
(c) Debarment. A contractor may be debarred from receiving future
contracts for failure to comply with the provisions of the Act or this
part subject to reinstatement pursuant to Sec. 60-250.68. Debarment may
be imposed for an indefinite period, or may be imposed for a fixed
period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall
be afforded to a contractor before the imposition of any sanction or
penalty.
Sec. 60-250.67 Notification of agencies.
The Deputy Assistant Secretary shall ensure that the heads of all
agencies are notified of any debarments taken against any contractor.
Sec. 60-250.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from
further contracts for an indefinite period under the Act may request
reinstatement in a letter filed with the Deputy Assistant Secretary at
any time after the effective date of the debarment; a contractor
debarred for a fixed period may make such a request following the
expiration of six months from the effective date of the debarment. In
connection with the reinstatement proceedings, all debarred contractors
shall be required to show that they have established and will carry out
employment policies and practices in compliance with the Act and this
part. Additionally, in determining whether reinstatement is appropriate
for a contractor debarred for a fixed period, the Deputy Assistant
Secretary also shall consider, among other factors, the severity of the
violation which resulted in the debarment, the contractor's attitude
towards compliance, the contractor's past compliance history, and
whether the contractor's reinstatement would impede the effective
enforcement of the Act or this part. Before reaching a decision, the
Deputy Assistant Secretary may conduct a compliance review of the
contractor and may require the contractor to supply additional
information regarding the request for reinstatement. The Deputy
Assistant Secretary shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a
decision denying a request for reinstatement, the contractor may file a
petition for review of the decision with the Secretary. The petition
shall set forth the grounds for the contractor's objections to the
Deputy Assistant Secretary's decision. The petition shall be served on
the Deputy Assistant Secretary and the Associate Solicitor for Civil
Rights and shall include the decision as an appendix. The Deputy
Assistant Secretary may file a response within 14 days to the petition.
The Secretary shall issue the final agency decision denying or granting
the request for reinstatement. Before reaching a final decision, the
Secretary may issue such additional orders respecting procedure as he
or she finds appropriate in the circumstances, including an order
referring the matter to the Office of Administrative Law Judges for an
evidentiary hearing where there is a material factual dispute that
cannot be resolved on the record before the Secretary.
Sec. 60-250.69 Intimidation and interference.
(a) The contractor shall not harass, intimidate, threaten, coerce,
or discriminate against, any individual because the individual has
engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation,
compliance review, hearing, or any other activity related to the
administration of the Act 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 the Act or 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 the Act or this part.
(b) The contractor shall ensure that all persons under its control
do not engage in such harassment, intimidation, threats, coercion or
discrimination. The sanctions and penalties contained in this part may
be exercised by the Deputy Assistant Secretary against any contractor
who violates this obligation.
Sec. 60-250.70 Disputed matters related to compliance with the Act.
The procedures set forth in the regulations in this part govern all
disputes relative to the contractor's compliance with the Act and this
part. Any disputes relating to issues other than compliance, including
contract costs arising out of the contractor's efforts to comply, shall
be determined by the disputes clause of the contract.
Subpart E--Ancillary Matters
Sec. 60-250.80 Responsibilities of state employment service offices.
(a) Local state employment service offices shall refer qualified
special disabled veterans and veterans of the Vietnam era to fill
employment openings listed by contractors with such local offices
pursuant to the mandatory listing requirements of the equal opportunity
clause, and shall give priority to special disabled veterans and
veterans of the Vietnam era in making such referrals.
(b) Local state employment service offices shall contact employers
to solicit the job orders described in paragraph (a) of this section.
The state employment service shall provide OFCCP upon request
information pertinent to whether the contractor is in compliance with
the mandatory listing requirements of the equal opportunity clause.
Sec. 60-250.81 Recordkeeping.
(a) General requirements. Any personnel or employment record made
or kept by the contractor shall be preserved by the contractor for a
period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the
contractor has fewer than 150 employees or does not have a Government
contract of at least $150,000, the minimum record retention period
shall be one year from the date of the making of the record or the
personnel action involved, whichever occurs later. Such records
include, but are not necessarily limited to, records relating to
requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes;
tests and test results; interview notes; and other records having to do
with hiring, assignment, promotion, demotion, transfer, lay-off or
termination, rates of
[[Page 50110]]
pay or other terms of compensation, and selection for training or
apprenticeship. In the case of involuntary termination of an employee,
the personnel records of the individual terminated shall be kept for a
period of two years from the date of the termination, except that
contractors that have fewer than 150 employees or that do not have a
Government contract of at least $150,000 shall keep such records for a
period of one year from the date of the termination. Where the
contractor has received notice that a complaint of discrimination has
been filed, that a compliance review has been initiated, or that an
enforcement action has been commenced, the contractor shall preserve
all personnel records relevant to the complaint, compliance review or
action until final disposition of the complaint, compliance review or
action. The term personnel records relevant to the complaint,
compliance review or action would include, for example, personnel or
employment records relating to the aggrieved person and to all other
employees holding positions similar to that held or sought by the
aggrieved person, and application forms or test papers completed by an
unsuccessful applicant and by all other candidates for the same
position as that for which the aggrieved person applied and was
rejected.
(b) Failure to preserve records. Failure to preserve complete and
accurate records as required by paragraph (a) of this section
constitutes noncompliance with the contractor's obligations under the
Act and this part. Where the contractor has destroyed or failed to
preserve records as required by this section, there may be a
presumption that the information destroyed or not preserved would have
been unfavorable to the contractor: Provided, That this presumption
shall not apply where the contractor shows that the destruction or
failure to preserve records results from circumstances that are outside
of the contractor's control. (c) The requirements of this section shall
apply only to records made or kept on or after [60 days after date of
publication of final rule].
Sec. 60-250.82 Access to records.
Each contractor shall permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
reviews and complaint investigations and inspecting and copying such
books and accounts and records, including computerized records, and
other material as may be relevant to the matter under investigation and
pertinent to compliance with the Act or this part. Information obtained
in this manner shall be used only in connection with the administration
of the Act and in furtherance of the purposes of the Act.
Sec. 60-250.83 Labor organizations and recruiting and training
agencies.
(a) Whenever performance in accordance with the equal opportunity
clause or any matter contained in the regulations in this part may
necessitate a revision of a collective bargaining agreement, the labor
organizations which are parties to such agreement shall be given an
adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through
contractors, subcontractors, local officials, the Department of
Veterans Affairs, vocational rehabilitation facilities, and all other
available instrumentalities, to cause any labor organization,
recruiting and training agency or other representative of workers who
are employed by a contractor to cooperate with, and to assist in, the
implementation of the purposes of the Act.
Sec. 60-250.84 Rulings and interpretations.
Rulings under or interpretations of the Act and this part shall be
made by the Deputy Assistant Secretary.
Sec. 60-250.85 Effective date.
This part shall become effective on [60 days after date of
publication of final rule], and shall not apply retroactively.
Contractors presently holding Government contracts shall update their
affirmative action programs as required to comply with the regulations
in this part within 120 days after [60 days after date of publication
of final rule].
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA) set
out as an appendix to the regulations issued by the Equal Employment
Opportunity Commission (EEOC) implementing the ADA (29 CFR Part
1630). Although the following discussion is intended to provide an
independent ``free-standing'' source of guidance with respect to the
duty to provide reasonable accommodation under this part, to the
extent that the EEOC appendix provides additional guidance which is
consistent with the following discussion, it may be relied upon for
purposes of this part as well. See Sec. 60-250.1(c). Contractors are
obligated to provide reasonable accommodation and to take
affirmative action. Reasonable accommodation under VEVRAA, like
reasonable accommodation required under Section 503 and the ADA, is
a part of the nondiscrimination obligation. See EEOC appendix cited
in this paragraph. Affirmative action is unique to VEVRAA and
Section 503, and includes actions above and beyond those required as
a matter of nondiscrimination. An example of this is the requirement
discussed in paragraph 2 of this appendix that a contractor shall
make an inquiry of a special disabled veteran who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an ``otherwise
qualified'' special disabled veteran, unless the contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. As stated in Sec. 60-250.2(o), a
special disabled veteran is qualified if he or she satisfies all the
skill, experience, education and other job-related selection
criteria, and can perform the essential functions of the position
with or without reasonable accommodation. A contractor is required
to make a reasonable accommodation with respect to its application
process if the special disabled veteran is qualified with respect to
that process. One is ``otherwise qualified'' if he or she is
qualified for a job, except that, because of a disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees who are known to be special disabled
veterans. As stated in Sec. 60-250.42 (see also Appendix B of this
part), the contractor is required to invite applicants who have been
provided an offer of employment, before they begin their employment
duties, to indicate whether they are covered by the Act and wish to
benefit under the contractor's affirmative action program. That
section further provides that the contractor should seek the advice
of special disabled veterans who ``self-identify'' in this way as to
proper placement and appropriate accommodation. Moreover, Sec. 60-
250.44(d) provides that if an employee who is a known 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 disability, the contractor is required
to confidentially inquire whether the problem is disability related
and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables a special disabled
veteran to enjoy equal employment opportunities. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment, as are available to the average similarly situated
employee without a disability. Thus, for example, an accommodation
made to assist an employee
[[Page 50111]]
who is a special disabled veteran in the performance of his or her
job must be adequate to enable the individual to perform the
essential functions of the position. The accommodation, however,
does not have to be the ``best'' accommodation possible, so long as
it is sufficient to meet the job-related needs of the individual
being accommodated. There are three areas in which reasonable
accommodations may be necessary: (1) accommodations in the
application process; (2) accommodations that enable employees who
are special disabled veterans to perform the essential functions of
the position held or desired; and (3) accommodations that enable
employees who are special disabled veterans to enjoy equal benefits
and privileges of employment as are enjoyed by employees without
disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source, e.g.,
the Department of Veterans Affairs or a state vocational
rehabilitation agency, or if Federal, state or local tax deductions
or tax credits are available to offset the cost of the
accommodation. In the absence of such funding, the special disabled
veteran should be given the option of providing the accommodation or
of paying that portion of the cost which constitutes the undue
hardship on the operation of the business.
5. Section 60-250.2(r) lists a number of examples of the most
common types of accommodations that the contractor may be required
to provide. There are any number of specific accommodations that may
be appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is
appropriate must be made on a case-by-case basis. The contractor
generally should consult with the special disabled veteran in
deciding on the appropriate accommodation; frequently, the
individual will know exactly what accommodation he or she will need
to perform successfully in a particular job, and may suggest an
accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to
consult include the appropriate state vocational rehabilitation
services agency, the Equal Employment Opportunity Commission (1-800-
669-EEOC (voice), 1-800-800-3302 (TDD)), the Job Accommodation
Network (JAN) operated by the President's Committee on Employment of
People with Disabilities (1-800-JAN-7234), private disability
organizations (including those that serve veterans), and other
employers.
6. With respect to accommodations that can permit an employee
who is a special disabled veteran to perform essential functions
successfully, a reasonable accommodation may require the contractor
to, for instance, modify or acquire equipment. For the visually-
impaired such accommodations may include providing adaptive hardware
and software for computers, electronic visual aids, braille devices,
talking calculators, magnifiers, audio recordings and braille or
large-print materials. For persons with hearing impairments,
reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids and
telecommunications devices for the deaf (TDDs). For persons with
limited physical dexterity, the obligation may require the provision
of goose neck telephone headsets, mechanical page turners and raised
or lowered furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by special disabled veterans--including
areas used by employees for purposes other than the performance of
essential job functions such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots and credit unions.
This type of accommodation will enable employees to enjoy equal
benefits and privileges of employment as are enjoyed by employees
who do not have disabilities.
8. Another of the potential accommodations listed in Sec. 60-
250.2(r) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified special disabled veteran cannot perform to another
position. Accordingly, if a clerical employee who is a special
disabled veteran is occasionally required to lift heavy boxes
containing files, but cannot do so because of a disability, this
task may be reassigned to another employee. The contractor, however,
is not required to reallocate essential functions, i.e., those
functions that the individual who holds the job would have to
perform, with or without reasonable accommodation, in order to be
considered qualified for the position. For instance, the contractor
which has a security guard position which requires the incumbent to
inspect identity cards would not have to provide a blind special
disabled veteran with an assistant to perform that duty; in such a
case, the assistant would be performing an essential function of the
job for the special disabled veteran. Job restructuring may also
involve allowing part-time or modified work schedules. For instance,
flexible or adjusted work schedules could benefit special disabled
veterans who cannot work a standard schedule because of the need to
obtain medical treatment, or special disabled veterans with mobility
impairments who depend on a public transportation system that is not
accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the special disabled veteran's current
position would pose an undue hardship. Reassignment is not required
for applicants. However, in making hiring decisions, contractors are
encouraged to consider applicants who are known special disabled
veterans for all available positions for which they may be qualified
when the position(s) applied for is unavailable. Reassignment may
not be used to limit, segregate, or otherwise discriminate against
employees who are special disabled veterans by forcing reassignments
to undesirable positions or to designated offices or facilities.
Employers should reassign the individual to an equivalent position
in terms of pay, status, etc., if the individual is qualified, and
if the position is vacant within a reasonable amount of time. A
``reasonable amount of time'' should be determined in light of the
totality of the circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned special disabled veteran at the salary of the higher
graded position, and must do so if it maintains the salary of
reassigned employees who are not special disabled veterans. It
should also be noted that the contractor is not required to promote
a special disabled veteran as an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) Providing information
regarding job vacancies in a form accessible to special disabled
veterans who are vision or hearing impaired, e.g., by making an
announcement available in braille, in large print, or on audio tape,
or by responding to job inquiries via TDDs; (2) providing readers,
interpreters and other similar assistance during the application,
testing and interview process; (3) appropriately adjusting or
modifying employment-related examinations, e.g., extending regular
time deadlines, allowing a special disabled veteran who is blind or
has a learning disorder such as dyslexia to provide oral answers for
a written test, and permitting an applicant, regardless of the
nature of his or her ability, to demonstrate skills through
alternative techniques and utilization of adapted tools, aids and
devices; and (4) ensuring a special disabled veteran with a mobility
impairment full access to testing locations such that the
applicant's test scores accurately reflect the applicant's skills or
aptitude rather than the applicant's mobility impairment.
[[Page 50112]]
Appendix B to Part 60-250--Sample Invitation To Self-Identify
Note: When the invitation to self-identify is being extended
prior to an offer of employment, as is permitted in limited
circumstances under Secs. 60-250.42 (b) and (c), paragraph 2(ii) of
this appendix, relating to identification of reasonable
accommodations, should be omitted. This will avoid a conflict with
the EEOC's ADA Guidance, which in most cases precludes asking a job
applicant (prior to a job offer being made) about potential
reasonable accommodations.
[Sample Invitation to Self-Identify]
1.a. This employer is a Government contractor subject to the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended, which requires Government contractors to take affirmative
action to employ and advance in employment qualified special
disabled veterans and veterans of the Vietnam era. If you are a
special disabled veteran or veteran of the Vietnam era and would
like to be considered under the affirmative action program, please
tell us. You may inform us of your desire to benefit under the
program at this time and/or at any time in the future.
b. The term ``special disabled veteran'' refers to 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
rated at 30 percent or more, or rated at 10 or 20 percent in the
case of a veteran who has been determined by the Department of
Veterans Affairs to have a serious employment handicap. The term
also refers to a person who was discharged or released from active
duty because of a service-connected disability.
c. The term ``veteran of the Vietnam era'' refers to a person
who served on active duty for more than 180 days, any part of which
occurred between August 5, 1964, and May 7, 1975, and was discharged
or released with other than a dishonorable discharge. It also refers
to a person who was discharged or released from active duty for a
service-connected disability if any part of such active duty was
performed between August 5, 1964, and May 7, 1975.
d. If you are a special disabled veteran, this information will
assist us in placing you in an appropriate position and in making
accommodations for your disability. [The contractor should here
insert a brief provision summarizing the relevant portion of its
affirmative action program.]
e. Submission of this information is voluntary and refusal to
provide it will not subject you to any adverse treatment.
Information you submit will be kept confidential, except that (i)
supervisors and managers may be informed regarding restrictions on
the work or duties of special disabled veterans, and regarding
necessary accommodations; (ii) first aid and safety personnel may be
informed, when and to the extent appropriate, if the condition might
require emergency treatment; and (iii) Government officials engaged
in enforcing laws administered by OFCCP or the Americans with
Disabilities Act, may be informed. The information provided will be
used only in ways that are not inconsistent with the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended.
2. If you are a special disabled veteran or a veteran of the
Vietnam era, we would like to include you under the affirmative
action program. If you are a special disabled veteran it would
assist us if you tell us about (i) any special methods, skills, and
procedures which qualify you for positions that you might not
otherwise be able to do because of your disability so that you will
be considered for any positions of that kind, and (ii) the
accommodations which we could make which would enable you to perform
the job properly and safely, including special equipment, changes in
the physical layout of the job, elimination of certain duties
relating to the job, provision of personal assistance services or
other accommodations.
Appendix C to Part 60-250--Review of Personnel Processes
The following is a set of procedures which contractors may use
to meet the requirements of Sec. 60-250.44(b):
1. The application or personnel form of each known applicant who
is a special disabled veteran or veteran of the Vietnam era should
be annotated to identify each vacancy for which the applicant was
considered, and the form should be quickly retrievable for review by
the Department of Labor and the contractor's personnel officials for
use in investigations and internal compliance activities.
2. The personnel or application records of each known special
disabled veteran or veteran of the Vietnam era should include (i)
the identification of each promotion for which the covered veteran
was considered, and (ii) the identification of each training program
for which the covered veteran was considered.
3. In each case where an employee or applicant who is a special
disabled veteran or a veteran of the Vietnam era is rejected for
employment, promotion, or training, a statement of the reason should
be appended to the personnel file or application form as well as a
description of the accommodations considered (for a rejected special
disabled veteran). This statement should be available to the
applicant or employee concerned upon request.
4. Where applicants or employees who are selected for hire,
promotion, or training and the contractor undertakes any
accommodation which makes it possible for him or her to place a
special disabled veteran on the job, the application form or
personnel record should contain a description of that accommodation.
[FR Doc. 96-23638 Filed 9-23-96; 8:45 am]
BILLING CODE 4510-27-P