[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Rules and Regulations]
[Pages 19366-19369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9661]



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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-250

RIN 1215-AA62


Affirmative Action Obligations of Contractors and Subcontractors 
for Disabled Veterans and Veterans of the Vietnam Era; Invitation to 
Self-Identify

AGENCY: Office of Federal Contract Compliance Programs (OFCCP), Labor.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule modifies the OFCCP regulation requiring 
Government contractors to invite job applicants to inform the 
contractor whether the applicant believes that he or she may be covered 
by the affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, and wishes to benefit under the 
contractor's affirmative action program. These changes are 
substantively identical to OFCCP revisions, published elsewhere in this 
issue of the Federal Register, to the rule requiring invitations to 
self-identify under Section 503 of the Rehabilitation Act of 1973. 
Issuing identical rule changes will minimize regulatory burdens, 
because Government contractors will not need separate forms, notices 
and posters for inviting self-identification under the two affirmative 
action laws.

DATES: This interim rule will take effect on August 29, 1996.
    OFCCP invites comments on this interim rule. To be assured of 
consideration, comments must be in writing and must be received on or 
before July 1, 1996.

ADDRESSES: Comments should be sent to Joe N. Kennedy, Deputy Director, 
Office of Federal Contract Compliance Programs, Room C--3325-200 
Constitution Avenue, N.W., Washington, D.C. 20210.
    As a convenience to commenters, OFCCP 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. Receipt of FAX transmittals 
will not be acknowledged, except that the sender may request 
confirmation of receipt by calling OFCCP at (202) 219-9430 (voice) or 1 
(800) 326-2577 (TDD).
    Comments received will be available for public inspection in Room 
C-3325, from 9 a.m. to 5 p.m., Monday through Friday, except legal 
holidays, from May 15, 1996 until this interim rule is published 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) or 1 (800) 326-
2577 (TDD).
    Copies of this interim rule are available in the following 
alternative formats: large print, electronic file on computer disk and 
audio-tape. Copies may be obtained from OFCCP 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, Room C-3325, 200 
Constitution Avenue NW., Washington, D.C. 20210. Telephone: (202) 219-
9475 (voice), 1 (800) 326-2577 (TDD).

SUPPLEMENTARY INFORMATION:

Background

    The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 
(Section 4212, VEVRAA, or the Act), 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.'' OFCCP enforces Section 4212 
and has published implementing regulations at 41 CFR Part 60-250. 
Covered disabled veterans include persons entitled to disability 
compensation under the laws administered by the Department of Veterans 
Affairs for disability rated at 30 percent or more, and persons whose 
discharge or release from active duty was for a disability incurred or 
aggravated in the line of duty. 41 CFR 250.2.
    Today's interim rule regarding the invitation to self-identify in 
41 CFR 60-250.5(d), described in detail below, is prompted by OFCCP's 
publication, elsewhere in today's Federal Register, of a final rule 
revising the regulations at 41 CFR Part 60-741 implementing Section 503 
of the Rehabilitation Act of 1973. Section 503 requires that Government 
contractors and subcontractors take affirmative action to employ and 
advance in employment qualified individuals with disabilities.
    Because of the close similarity between VEVRAA and Section 503 in 
terms of their substantive protections and jurisdictional requirements, 
these two laws have been treated in tandem by OFCCP and often by 
Government contractors as well. For instance, OFCCP's regulations 
implementing the two laws historically have been parallel. Many 
contractors use the same notices and forms to comply with their 
regulatory duties under each law. One such obligation is that 
contractors extend to their employees and applicants an invitation to 
identify themselves as being covered under the law and wishing to 
benefit under the contractor's affirmative action program. Under the 
existing VEVRAA regulation at 41 CFR 60-250.5(d), contractors must 
extend the invitation to all job

[[Page 19367]]

applicants. By contrast, the new Section 503 rule at 41 CFR 60-
741.42(a) explicitly requires contractors to invite applicants to self-
identify after making offers of employment and before applicants begin 
their employment duties. The new Section 503 rule, which is consistent 
with standards set under the Americans with Disabilities Act of 1990 
(ADA) (42 U.S.C. 12112(d); 29 CFR 1630.13-.14), permits inviting an 
applicant to self-identify before a job offer is made only in two 
limited circumstances: (i) if the invitation is made when the 
contractor actually is undertaking affirmative action at the pre-offer 
stage; and (ii) if the invitation is made pursuant to a Federal, state 
or local law requiring affirmative action for individuals with 
disabilities.
    Representatives of Government contractors have expressed concern 
that if contractors are faced with a self-identification requirement 
under VEVRAA that is different than the requirement under Section 503, 
each contractor will have to revise its forms, notices, and posters 
when the Section 503 final regulations take effect, and then change 
these same forms, notices, and posters again when OFCCP promulgates its 
contemplated revisions to the VEVRAA regulations. Consistent with 
suggestions by the regulated community, this interim rule modifies the 
VEVRAA self-identification regulation to mirror the parallel regulation 
under Section 503 and makes these changes effective at the same time as 
the new Section 503 regulations.
    The Department believes that there is good cause under the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), to issue 
today's interim rule without first issuing a proposed rule and 
undergoing rulemaking procedures. As noted above, if this interim rule 
is not effective at the same time as the Section 503 regulations, 
covered contractors will need to have separate forms, notices and 
posters for inviting self-identification under the two laws. Delaying 
uniformity among these OFCCP rules, as well as with the ADA, will waste 
resources within the regulated community and confuse the public as to 
the law. In addition, the issues concerning Government contractors' 
inviting individuals with disabilities to self-identify to obtain the 
benefits of affirmative action programs, and conformance with the Equal 
Employment Opportunity Commission's (EEOC) implementation of the ADA, 
were already subject to public scrutiny during the Section 503 
rulemaking. See, e.g., 57 FR 48084, 48095, 48097, Oct. 21, 1992. The 
modifications made to Sec. 60-250.5(d) are in accordance with the 
Congressional mandate expressed in the ADA regarding pre-employment 
inquiries of the existence of disabilities.
    For these reasons, publication of this interim rule in proposed 
form prior to the effective date of the Section 503 invitation to self-
identify regulation is impracticable, unnecessary and contrary to the 
public interest. Thus, good cause exists under the APA to dispense with 
notice of proposed rulemaking.

Summary of the Interim Rule

    This interim rule, 41 CFR 60-250.5(d), is substantively the same as 
the new Section 503 regulation at 41 CFR 60-741.42; it adopts the 
standards contained in the ADA implementing regulations regarding 
disability discrimination, but applies these standards to covered 
disabled veterans and veterans of the Vietnam era. Much of Sec. 60-
250.5(d), however, will remain the same as it has been since it was 
published 20 years ago. (41 FR 26386, 26389, June 25, 1976.) A summary 
of the major changes to the previous rule follows.
    Paragraph (d)(1) of the interim rule mirrors language in the 
Section 503 final rule at Sec. 60-741.42(a). Paragraph (d)(1) 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 for disabled veterans and veterans of the Vietnam era. 
This approach is consistent with the ADA and the EEOC regulation at 29 
CFR 1630.14(b), which provides that an employer may require a medical 
inquiry after making an offer of employment to a job applicant and 
before the applicant begins his or her job duties, if all entering 
employees in the same job category are subjected to such an inquiry 
regardless of disability.
    Paragraphs (d)(2) and (d)(3) provide limited exceptions to the 
general requirement of paragraph (d)(1). In paragraph (d)(2), 
contractors are permitted to invite disabled veterans to self-identify 
before an employment offer has been made only in two limited 
circumstances: (i) if the invitation is made when the contractor 
actually is undertaking affirmative action for disabled veterans at the 
pre-offer stage; or (ii) if the invitation is made under a Federal, 
state or local law requiring affirmative action for disabled veterans. 
EEOC's October 10, 1995, ``ADA Enforcement Guidance: Preemployment 
Disability-Related Questions and Medical Examinations'' also authorizes 
pre-employment inquiries in these circumstances. In paragraph (d)(3), 
contractors are similarly permitted to make pre-offer invitations to 
Vietnam-era veterans to self-identify in limited circumstances: (i) if 
the invitation is made when the contractor actually is undertaking 
affirmative action for Vietnam-era veterans at the pre-offer stage; or 
(ii) if the invitation is made under a Federal, state or local law 
requiring affirmative action for Vietnam-era veterans.
    Paragraph (d)(4) of the interim 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 revision will help ensure that the 
individual is aware that he or she is not precluded from making the 
request at a later time whether or not an initial request was made. For 
example, a covered veteran simply may choose not to self-identify 
before beginning work, but may wish to do so later.
    Paragraph (d)(4) also requires that the contractor maintain a 
separate file on applicants and employees who have identified 
themselves as covered disabled veterans or Vietnam-era veterans and 
provide that file to OFCCP upon request. This requirement parallels 41 
CFR Sec. 60-741.42(b), and is consistent with separate file 
requirements already existing under the ADA (42 U.S.C. 12112(d)(3)(B); 
29 CFR 1630.14(b)(1)). For many years, the VEVRAA regulations have 
required contractors to maintain the confidentiality of this 
information, and the explicit requirement for separate files of such 
information aids in the protection of the records' confidentiality.
    Paragraph (d)(5) of the interim rule mirrors Sec. 60-741.42(c). 
This provision clarifies that nothing in this section relieves the 
contractor of its obligation to take affirmative action with respect to 
those applicants or employees who are known to the contractor to be 
disabled veterans or Vietnam-era veterans. The invitation to self-
identify is not the only affirmative action requirement under VEVRAA. 
This provision merely helps to ensure that contractors are not confused 
about this important point. For example, as stated in current Sec. 60-
250.6(b), ``[c]ontractors shall review their personnel processes to 
determine whether their present procedures assure careful, thorough and 
systematic consideration of the job qualifications of known disabled 
veteran applicants and Vietnam era veteran applicants for job vacancies 
filled either by hiring or promotion, and for all training 
opportunities offered or available.''

[[Page 19368]]

    Paragraph (d)(6) provides that nothing in this section relieves the 
contractor from liability for discrimination under the Act. This 
provision is identical to language in the current VEVRAA regulation and 
to the language in Sec. 60-741.42(d), and is merely organized into its 
own subparagraph.
    The contractor may develop its own invitation for complying with 
Sec. 60-250.5(d), although an acceptable form of such invitation is set 
forth in revised Appendix A to Part 60-250. This amended appendix is 
substantially similar to the current Appendix A, but incorporates a 
number of changes to the appendix to conform it to the requirements of 
revised Sec. 60-250.5(d). For instance, amended Appendix A clarifies 
that the information submitted to the contractor will be used to assist 
it in placing the individual in an appropriate position and in making 
appropriate accommodations, and that the information will be used only 
in accordance with the Act and the regulations. New Appendix A also 
specifies that the contractor should incorporate into the invitation a 
brief summary of the relevant portion of its affirmative action 
program.

Regulatory Procedures

Executive Order 12866

    This interim rule is issued in conformance with Executive Order 
12866. This interim rule has been determined not to be significant for 
purposes of Executive Order 12866 and therefore need not be reviewed by 
OMB. This interim rule does not meet the criteria of Section 3(f)(1) of 
Executive Order 12866 and therefore the information listed in Section 
6(a)(3)(C) of that Order is not required.
    This conclusion is based on the fact that this interim 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. Although the rule generally conforms the existing Section 
4212 regulation regarding the invitation to self-identify to the new 
Section 503 rule, it does not significantly alter the substance of the 
existing provisions.

Regulatory Flexibility Act

    The interim rule will retain consistency, and avoid confusion and 
conflict, between the Section 4212 regulation requiring larger 
Government contractors to provide an invitation to self-identify and 
the parallel Section 503 regulation. Moreover, these two regulations 
conform to the ADA nondiscrimination requirements applicable to private 
and State and local government employers with 15 or more employees. In 
view of this regulatory consistency and because the interim 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, under the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act

    This interim rule does not include any Federal mandate that may 
result in the expenditure by State, local and tribal governments in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year.

Paperwork Reduction Act

    The interim rule requires those contractors who, for affirmative 
action purposes, invite applicants and employees to identify themselves 
as covered disabled veterans or veterans of the Vietnam era to maintain 
a separate file on such applicants and employees. This recordkeeping 
provision is the same as that contained in the Section 503 final rule, 
41 CFR Sec. 60-741.42(b). Approximately 89,000 Federal service and 
supply contractors and 100,000 Federal construction contractors are 
subject to VEVRAA and Section 503.
    OFCCP does not believe that this requirement will result in 
increased recordkeeping burdens for contractors. OFCCP believes that a 
number of contractors may already have maintained separate files on 
such applicants and employees in order to implement the VEVRAA 
confidentiality requirements. In addition, the ADA presently requires 
employers with 15 or more employees to maintain on separate forms and 
in separate medical files information obtained regarding the medical 
condition or history of applicants and to treat this information as 
confidential medical records (42 U.S.C. 12112(d)(3)(B); 29 CFR 
1630.14(b)(1)). Furthermore, because the invitation to self-identify is 
only required by the interim rule to occur after a job offer has been 
made, and not to all applicants, there will be fewer records of self-
identification being generated than in the past. Therefore, although 
the recordkeeping language in the interim rule is more expansive than 
that in the current VEVRAA regulations, OFCCP does not believe it will 
result in increased recordkeeping burdens.
    As noted above, OFCCP believes that by issuing this interim rule to 
be effective at the same time as the Section 503 regulations, the 
covered contractors' paperwork requirements will be minimized because 
there will not be a need to have separate forms, notices and posters 
for inviting self-identification under VEVRAA and Section 503. 
Uniformity among the implementing regulations of VEVRAA, Section 503 
and the ADA, will also minimize confusion and, therefore, help to 
ensure the greatest public benefit associated with these Federal 
programs.
    It is also important to note that the interim rule retains a sample 
invitation in Appendix A to Part 60-250. Thus, the interim rule 
minimizes the burden on contractors of designing their own invitations, 
while preserving flexibility for those contractors who currently use, 
or decide to develop, different but otherwise effective and appropriate 
forms of invitation.
    Information collection under the VEVRAA regulations, and under the 
Section 503 regulations, is covered by OMB control numbers 1215-0072 
and 1215-0163. The interim rule's recordkeeping requirements have been 
submitted to OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 
3501. OFCCP solicits comments concerning the interim rule's collection 
of information to: (i) evaluate whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (ii) evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of methodology and assumptions used; (iii) enhance the 
quality, utility and clarity of the information to be collected; and 
(iv) minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. The new recordkeeping requirement in the 
interim rule is not effective until OFCCP displays a currently valid 
OMB control number. Upon receipt of that number, which OFCCP 
anticipates will take between 90 and 120 days, OFCCP will publish a 
document in the Federal Register.

Request for Public Comments

    OFCCP requests public comment on the provisions of the interim 
rule. OFCCP invites written views from all interested parties, 
including public and

[[Page 19369]]

private disability organizations, veterans representatives, private and 
State and local government contractors with the Federal Government, 
Federal contracting agencies, and concerned individuals. OFCCP will 
consider the public comments in developing a final rule.

List of Subjects in 41 CFR Part 60-250

    Administrative practice and procedure, Civil rights, Employment, 
Equal employment opportunity, Government contracts, Government 
procurement, Investigations, Reporting and recordkeeping requirements, 
Veterans.

    Signed at Washington, D.C. this 12th day of April, 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.
    For the reasons set forth above, 41 CFR Part 60-250 is amended as 
set forth below.

PART 60-250--AFFIRMATIVE ACTION OBLIGATIONS OF CONTRACTORS AND 
SUBCONTRACTORS FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM 
ERA

    1. The authority citation for Part 60-250 is revised to read as 
follows:

    Authority: 29 U.S.C. 793; 38 U.S.C. 4211 and 4212; Executive 
Order 11758 (3 CFR, 1971-1975 Comp., p. 841).

    2. Section 60-250.5 is amended by revising paragraph (d) to read as 
follows:


Sec. 60-250.5  Applicability of the affirmative action program 
requirement.

* * * * *
    (d) Invitation to self-identify. (1) Except as provided in 
paragraphs (d) (2) and (3) 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.
    (2) The contractor may invite disabled veterans to self-identify 
prior to making a job offer only when:
    (i) The invitation is made when the contractor actually is 
undertaking affirmative action for disabled veterans at the pre-offer 
stage; or
    (ii) The invitation is made pursuant to a Federal, state or local 
law requiring affirmative action for disabled veterans.
    (3) The contractor may invite veterans of the Vietnam era to self-
identify prior to making a job offer only when:
    (i) The invitation is made when the contractor actually is 
undertaking affirmative action for veterans of the Vietnam era at the 
pre-offer stage; or
    (ii) The invitation is made pursuant to a Federal, state or local 
law requiring affirmative action for veterans of the Vietnam era.
    (4) The invitation referenced in paragraphs (d)(1) through (3) 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 A 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 A of this part 
contains instructions regarding modifications to be made if it is used 
at the pre-offer stage.)
    (5) 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 be disabled veterans or 
veterans of the Vietnam era.
    (6) Nothing in this section shall relieve the contractor from 
liability for discrimination under the Act.
    3. Appendix A to Part 60-250 is revised to read as follows:

Appendix A 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 Sec. 60-250.5(d)(2) and (3), paragraph 2(ii) of 
this appendix, relating to identification of reasonable 
accommodations, should be omitted. This will avoid a conflict with 
the EEOC's Americans with Disabilities Act (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. 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 disabled 
veterans and veterans of the Vietnam era covered by the Act. If you 
are a disabled veteran or veteran of the Vietnam era covered by the 
Act 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. 
This information will assist us in placing you in an appropriate 
position and in making accommodations for your disability if you are 
a disabled veteran. [The contractor should here insert a brief 
provision summarizing the relevant portion of its affirmative action 
program.] 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 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 disabled veteran or a veteran of the Vietnam era 
covered by the Act, we would like to include you under the 
affirmative action program. If you are a 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.

[FR Doc. 96-9661 Filed 4-30-96; 8:45 am]
BILLING CODE 4510-27-P