[Federal Register Volume 72, Number 152 (Wednesday, August 8, 2007)]
[Rules and Regulations]
[Pages 44393-44416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15385]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-300

RIN 1215-AB46


Affirmative Action and Nondiscrimination Obligations of 
Contractors and Subcontractors Regarding Disabled Veterans, Recently 
Separated Veterans, Other Protected Veterans, and Armed Forces Service 
Medal Veterans

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
publishing a new set of regulations to implement the amendments to the 
affirmative action provisions of the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974 (``VEVRAA'') that were made by the Jobs for 
Veterans Act (``JVA'') enacted in 2002. The JVA amendments raised the 
threshold dollar amount of the Government contracts that are subject to 
the affirmative action provisions of VEVRAA, changed the categories of 
veterans protected by the law, and changed the manner in which the 
mandatory job listing requirement is to be implemented. The final 
regulations published today apply only to covered Government contracts 
entered into or modified on or after December 1, 2003. The existing 
VEVRAA implementing regulations found in 41 CFR part 60-250 will 
continue to apply to Government contracts entered into before December 
1, 2003.

DATES: Effective Date: These regulations are effective September 7, 
2007.

FOR FURTHER INFORMATION CONTACT: Lynn A. Clements, Acting Director, 
Division of Policy, Planning, and Program Development, Office of 
Federal Contract Compliance Programs, 200 Constitution Avenue, NW., 
Room N3422, Washington, DC. 20210. Telephone: (202) 693-0102 (voice) or 
(202) 693-1337 (TTY).

SUPPLEMENTARY INFORMATION:

Current Regulations and Rulemaking History

    The Jobs for Veterans Act (``JVA''), (Pub. L. 107-288, 116 Stat. 
2033), was signed by the President on November 2, 2002. Section 2(b)(1) 
of the JVA amended the affirmative action provisions of the Vietnam Era 
Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 
4212, (``VEVRAA''). Section 2(b)(3) of the JVA made the amendments 
applicable to Government contracts entered into on or after December 1, 
2003.
    Prior to amendment by the JVA, the affirmative action provisions of 
VEVRAA required parties holding Government contracts or subcontracts of 
$25,000 or more to ``take affirmative action to employ and advance in 
employment qualified special disabled veterans, veterans of the Vietnam 
era, recently separated veterans, and any other veterans who served on 
active duty during a war or in a campaign or expedition for which a 
campaign badge has been authorized.'' OFCCP has adopted the term 
``other protected veteran'' to refer to ``veterans who served on active 
duty during a war or in a campaign or expedition for which a campaign 
badge has been authorized.''
    In addition, prior to amendment, VEVRAA required that the Secretary 
promulgate regulations requiring contractors ``to list immediately with 
the appropriate local employment service office all of its employment 
openings, except that the contractor may exclude openings for executive 
and top management positions, positions which are to be filled from 
within the contractor's organization, and positions lasting three days 
or less.''
    The JVA amendments made three significant changes to the 
affirmative action provisions of VEVRAA. First, section 2(b)(1) of the 
JVA increased the coverage threshold from a contract of $25,000 or more 
to a contract of $100,000 or more.
    Second, the JVA amendments changed the categories of covered 
veterans under VEVRAA. The JVA eliminated the category of Vietnam era 
veterans from coverage under VEVRAA. However, many Vietnam era veterans 
may remain covered in other categories. The JVA added as a new category 
of covered veterans--those ``veterans who, while serving on active duty 
in the Armed Forces, participated in a United States military operation 
for which an Armed Forces service medal was awarded pursuant to 
Executive Order 12985.'' The JVA expanded the coverage of veterans with 
disabilities. Prior to amendment by the JVA, VEVRAA

[[Page 44394]]

covered veterans rated as having 10% to 20% serious employment handicap 
or a disability rated 30% or more by the Department of Veterans 
Affairs. The JVA amendments expanded coverage to include all veterans 
with service-connected disabilities. The JVA also expanded the coverage 
of ``recently separated veterans'' from one to three years after 
discharge or release from active duty.
    Third, the JVA modified the mandatory job listing requirement for 
covered contractors. Currently, the regulation at 41 CFR 60-250.5 
allows contractors to satisfy their job listing obligations by listing 
employment openings either with the appropriate local employment 
service office or with America's Job Bank (AJB). Section 2(b)(1) of the 
JVA requires the Secretary to promulgate regulations that obligate each 
covered contractor to list all of its employment openings with ``the 
appropriate employment service delivery system (as defined in section 
4101(7) of this title).'' Section 5(c)(1) of the JVA defines the term 
``employment service delivery system'' as ``a service delivery system 
at which or through which labor exchange services, including 
employment, training, and placement services, are offered in accordance 
with the Wagner-Peyser Act.'' See 38 U.S.C. 4101(7). (The Wagner-Peyser 
Act established the Employment Service, which is a nationwide system of 
public employment offices.) The JVA provides that a contractor also may 
list employment openings with ``one-stop career centers under the 
Workforce Investment Act of 1998, other appropriate service delivery 
points, or America's Job Bank (or any additional or subsequent national 
electronic job bank established by the Department of Labor).'' Thus, as 
a result of the JVA amendments, listing job openings solely with AJB 
will no longer comply with the requirements of VEVRAA.
    On January 20, 2006, OFCCP published for a 60-day comment period a 
Notice of Proposed Rulemaking (NPRM), 71 FR 3352, to implement the JVA 
amendments to VEVRAA. OFCCP published a notice on March 21, 2006, 71 FR 
14135, which corrected the e-mail address for submitting comments on 
the January 20 NPRM, and extended the comment period for seven days, or 
until March 28, 2006. OFCCP received five comments: two from State 
workforce development agencies, and three from employer associations 
whose members include Federal contractors. OFCCP reviewed and carefully 
considered the comments in the development of this final rule.

Overview of the Final Rule

    The final rule adopts regulations implementing the JVA amendments 
to VEVRAA that will be codified in a new 41 CFR part 60-300. OFCCP 
explained in the preamble of the NPRM that most provisions in part 60-
300 are identical to the parallel provisions in the existing VEVRAA 
implementing regulations in 41 CFR part 60-250, except where 
differences are required to implement the JVA amendments. Consequently, 
the same section numbers are used in both parts 60-250 and 60-300. 
Generally, the differences between the two sets of regulations are 
found in the provisions that reference the contract coverage threshold 
and the categories of covered veterans. In the Section-by-Section 
Analysis of the NPRM, OFCCP highlighted only the provisions in the 
proposed rule that differ from provisions in the part 60-250 
regulations. Likewise, the provisions in the part 60-250 regulations 
that have been incorporated in today's final rule without substantive 
change are omitted from the discussion in the Section-by-Section 
Analysis of Comments and Revisions below.
    This final rule, for the most part, adopts the provisions that were 
proposed in the January 20 NPRM. However, a few of the proposed 
provisions have been modified in response to the public comments. The 
discussion which follows identifies the significant issues raised in 
comments received in response to the NPRM, provides OFCCP's responses 
to those comments, and explains any resulting changes to the proposed 
rule.

Section-by-Section Analysis of Comments and Revisions

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-300.1 Purpose, Applicability and Construction

    This section discusses the purpose, applicability, and construction 
of the part 60-300 regulations. Paragraphs (a) and (c)(2) refer to the 
four categories of veterans covered under the JVA: (1) Disabled 
veterans, (2) recently separated veterans, (3) other protected 
veterans, and (4) Armed Forces service medal veterans.
    Paragraph (b) states that this part applies to any Government 
contract or subcontract of $100,000 or more entered into on or after 
December 1, 2003. The singular form of the term ``contract'' is used in 
paragraph (b) in order to make clear that a single contract in the 
amount of $100,000 or more is required to establish coverage under 
VEVRAA; contracts are not aggregated to reach the coverage threshold. 
Additionally, paragraph (b) states that a contractor whose only covered 
Government contract was entered into before December 1, 2003, must 
comply with the requirements in the existing VEVRAA implementing 
regulations in part 60-250, and a contractor that has covered contracts 
entered into both before and on or after December 1, 2003, must comply 
with the regulations in part 60-300 and existing part 60-250.
    Two commenters asked whether contractors subject to the existing 
VEVRAA regulations in part 60-250 and the regulations in part 60-300 
implementing the JVA amendments must develop two separate VEVRAA 
affirmative action programs (AAPs). OFCCP wishes to clarify that a 
contractor that must comply with both sets of VEVRAA regulations need 
not develop two AAPs. The JVA amendments increased the dollar amount of 
the contract that triggers the written AAP requirement, but the JVA 
amendments did not affect the required contents of the written AAP 
under VEVRAA. OFCCP explained in the NPRM that, with the exception of 
the changes necessitated by the JVA amendments, Sec.  60-300.44, which 
addresses the requirements of AAPs under VEVRAA, is identical to Sec.  
60-250.44. Since the contents of the written AAP required under Sec.  
60-300.44 and Sec.  60-250.44 are the same, contractors may develop a 
single AAP that satisfies the requirements of both regulations.
    One commenter, an employer association, asserted that it would be 
unduly burdensome and confusing for contractors to have to comply with 
two sets of VEVRAA regulations, as they would be required to track 
different categories of protected veterans. The commenter stated that 
OFCCP has some flexibility, and, as a matter of enforcement policy, the 
agency could adopt a final rule that requires contractors to comply 
with only one set of VEVRAA regulations. The commenter argued that 
OFCCP could state in the final rule that contractors need only comply 
with the new JVA regulations, even if they also have contracts that are 
covered under the existing regulations in part 60-250. Further, the 
commenter stated that the final rule could provide that contractors 
entering into contracts that are covered under the regulations in new 
part 60-300 after the start of the AAP year have the option of 
continuing to comply only with the recordkeeping and reporting 
requirements under the part 60-250 rules until the end of the AAP year.

[[Page 44395]]

    OFCCP disagrees with the commenter's claim that compliance with the 
requirements of two sets of VEVRAA regulations would be unduly 
burdensome. First, complying with the requirements of part 60-300 will 
not increase the paperwork burden of contractors already covered under 
the VEVRAA regulations. The regulations in part 60-300 implementing the 
JVA amendments, like the existing VEVRAA implementing regulations in 
part 60-250, require that contractors extend to all applicants an 
invitation to self-identify as a veteran who may be covered under the 
Act and wishes to benefit under the affirmative action program. The 
only difference between the invitations to self-identify required under 
part 60-300 and part 60-250 is the categories of veterans that are 
invited to self-identify. Because OFCCP has included a sample 
invitation to self-identify in Appendix B of the part 60-300 
regulations, compliance with the part 60-300 requirement to invite 
applicants to self-identify as covered veterans will not add to the 
burden hours associated with the information collection requirements of 
the affirmative action provisions of VEVRAA. If a contractor is covered 
by part 60-250 and part 60-300, the contractor may continue using the 
part 60-250 sample invitation to self-identify form and add the part 
60-300 sample invitation to self-identify form once the final rule 
becomes effective. Contractors also may choose to combine the two 
sample invitation to self-identify forms provided in part 60-250 and 
part 60-300 such that the contractor extends to applicants one 
invitation to self-identify which lists all of the categories of 
veterans protected under parts 60-250 and 60-300.
    Further, the JVA did not alter the written AAP requirement under 
VEVRAA. Contractors that also are subject to the regulations in part 
60-300 may continue to implement the AAPs developed under the part 60-
250 regulations, but their affirmative action efforts must include the 
three additional categories of covered veterans. These contractors may 
develop one AAP, rather than two, as long as the components of that 
AAP, including the outreach and positive recruitment activities, 
include all categories of veterans protected under parts 60-250 and 60-
300.
    Moreover, OFCCP believes that only a small percentage of 
contractors will be required to comply with both sets of VEVRAA 
regulations. The term ``Government contract'' is defined in existing 
Sec.  60-250.2(i) and Sec.  60-300.2(i) of the final rule as ``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).'' Existing Sec.  60-
250.2(i)(1) and 60-300.2(i)(1) of the final rule provide that a 
``modification'' is ``any alteration in the terms and conditions of a 
contract, including supplemental agreements, amendments and 
extensions.'' The JVA applies to Government contracts entered on or 
after December 1, 2003. Because a contract modification is a 
``Government contract'', the JVA applies to modifications of otherwise 
covered contracts made on or after December 1, 2003. Consequently, 
modification of a contract that would otherwise be covered by part 60-
300 on or after December 1, 2003, but for the date the contract was 
entered into, would have the effect of modifying the VEVRAA equal 
opportunity clause; the new requirements of part 60-300 would be 
applicable to the modified contract, rather than the old requirements 
of part 60-250.
    To clarify the effect of modifying a contract on the VEVRAA 
requirements applicable after modification, language has been added to 
Sec.  60-300.1(b) addressing the issue. In the final rule, Sec.  60-
300.1(b) has been revised to state ``[t]his part applies to any 
Government contract or subcontract of $100,000 or more, entered into or 
modified on or after December 1, 2003 * * *. In addition, Sec.  60-
300.1(b) of the final rule states ``[a]ny contractor or subcontractor 
whose only contract * * * was entered into before December 1, 2003 (and 
not modified as described above) must follow part 60-250.''
    The regulations published today and the existing VEVRAA 
implementing regulations in part 60-250 do not require contractors to 
count the number of veterans in their employ. The Veterans' Employment 
and Training Service (VETS), rather than OFCCP, administers and 
enforces the requirement that contractors track and report on the 
number of employees in their workforces who are covered veterans, and 
has established a form for reporting the required information. See 41 
CFR Chapter 61.
    Finally, OFCCP also disagrees with the assertion that the final 
rule could provide that contractors need comply with only one set of 
VEVRAA regulations. Many of the veterans currently protected under the 
regulations in part 60-250 remain covered in the categories of veterans 
protected under the JVA. However, because the JVA eliminated the 
Vietnam era veterans from coverage under VEVRAA, some Vietnam era 
veterans might lose the VEVRAA protections prematurely if OFCCP were to 
adopt a rule requiring contractors with contracts entered both before 
and on and after December 1, 2003, to comply only with the regulations 
implementing the JVA amendments. Conversely, some veterans covered 
under the JVA were not covered previously. OFCCP does not have the 
authority to permit contractors subject to both pre- and post-JVA 
requirements to comply only with post-JVA requirements because OFCCP 
rulemaking authority can only be exercised in a manner that carries out 
the provisions of the statute. Here, Congress expressly made the JVA 
amendments applicable to contracts entered into on or after December 1, 
2003, and thereby provided that veterans covered under contracts 
entered into prior to the effective date of the JVA amendments remain 
covered under VEVRAA.

Section 60-300.2 Definitions

    In the NPRM, OFCCP proposed to incorporate in this section many of 
the definitions contained in existing Sec.  60-250.2 without any 
substantive changes. The proposal called for some definitions in 
existing Sec.  60-250.2 to be incorporated in Sec.  60-300.2 with 
modifications necessitated by the JVA amendments. Further, OFCCP 
proposed to adopt a few definitions that have no parallel definitions 
in the existing Sec.  60-250.2. Likewise, some definitions in Sec.  60-
250.2 were not included in the proposed rule because of the changes the 
JVA made to VEVRAA.
    OFCCP received several comments on the proposed definitions, and 
all were from one commenter. The commenter, an employer association, 
requested that the final rule clearly indicate that only veterans of 
the United States armed forces, as opposed to veterans of the armed 
forces of other nations, are covered under the affirmative action 
provisions of VEVRAA. The commenter stated that one option for 
clarifying coverage under VEVRAA would be to add a separate definition 
for the term ``veteran.'' Alternatively, the commenter recommended that 
OFCCP add clarifying language to the definitions for the terms 
``disabled veteran'' and ``recently separated veteran.'' The commenter 
noted that the definitions for the terms ``other protected veteran'' 
and ``Armed Forces service medal veteran'' already indicate that the 
regulations apply to veterans of the United States armed forces.
    In response to this comment, the definitions for the terms 
``disabled veteran'' and ``recently separated

[[Page 44396]]

veteran'' in paragraphs (n) and (q), respectively, have been revised in 
the final rule to make clear that only veterans ``who served on active 
duty in the U.S. military, ground, naval, or air service'' are covered 
under the affirmative action provisions of VEVRAA. For the sake of 
clarity and consistency, this language also has been added to the 
definitions for the term ``other protected veteran'' in paragraph (p) 
and the term ``Armed Forces service medal veteran'' in paragraph (r) in 
the final rule. Paragraph (p) also replaces ``person'' with ``veteran'' 
for clarity.
    The commenter also expressed the view that veterans who are 
discharged from service for certain serious offenses should not be 
entitled to the protections of the affirmative action provisions of 
VEVRAA. Accordingly, the commenter suggested that OFCCP adopt in the 
final rule coverage standards similar to those established under the 
regulations implementing the Uniformed Services Employment and 
Reemployment Rights Act (USERRA). The regulation at 20 CFR 1002.135 
excludes from the protections of USERRA employees whose military 
service falls within one of four categories, including separation from 
service with a dishonorable or bad conduct discharge.
    For purposes of the laws relating to veterans' benefits, which 
include the affirmative action provisions of VEVRAA, the definition of 
veteran means ``a person who served in the active military, naval, or 
air service, and who was discharged or released therefrom under 
conditions other than dishonorable.'' See 38 U.S.C. 101(2). Thus, 
dishonorably discharged veterans are excluded from the protections of 
VEVRAA by statute. Since persons who are separated from service with 
dishonorable discharges do not meet the statutory definition of 
``veteran,'' these persons are not entitled to the protections of the 
affirmative action provisions of VEVRAA. For clarity, the final rule 
defines veteran in paragraph (z) as ``a person who served in the active 
military, naval, or air service of the United States, and who was 
discharged or released therefrom under conditions other than 
dishonorable.''
    One comment addressed the definition for the term ``other protected 
veteran.'' The commenter stated that employers need guidance on the 
wars, campaigns, and expeditions for which a campaign badge has been 
authorized. The commenter asserted that the information available on 
the Office of Personnel Management's Web site is out-of-date and only 
somewhat relevant to private employers. The commenter suggested that 
OFCCP develop an up-to-date list of the covered conflicts for which a 
campaign badge has been authorized, or work with other affected 
agencies to develop and maintain a link to a Web site that contains a 
current list of the wars, campaigns, and expeditions that would qualify 
a veteran as an ``other protected veteran.''
    OFCCP agrees that contractors should have access to information 
about the veterans included in the category ``other protected 
veterans.'' Therefore, OFCCP will provide a link on its Web site to a 
list compiled by the Department of Defense, as well as a link to the 
information maintained by the Office of Personnel Management. These 
links will allow contractors to find lists of wars, campaigns, and 
expeditions for which a campaign badge has been authorized. OFCCP is 
providing these links as a courtesy to the contractor community. 
Contractors remain responsible for complying with their 
nondiscrimination and affirmative obligations regarding all protected 
veterans. Paragraph (p) is adopted in the final rule as stated earlier 
in this section.
    The employer association providing comments on the definitions also 
stated that guidance was needed on the operations that would qualify a 
veteran as an ``Armed Forces service medal veteran,'' which is defined 
in paragraph (r). As was explained in the NPRM, Armed Forces service 
medals are awarded to military personnel who participate in a United 
States military operation deemed to be significant activity, and who 
encounter no foreign armed opposition or imminent hostile action. The 
commenter requested that OFCCP provide contractors access to an up-to-
date list of the operations for which Armed Forces service medals have 
been awarded. OFCCP does not believe that providing such a list is 
necessary because the form used to document a veteran's separation from 
active duty military service, called the DD Form 214, Certificate of 
Release or Discharge from Active Duty, indicates whether a veteran is a 
recipient of the Armed Forces service medal. Veterans who self-identify 
as an ``Armed Forces service medal veteran'' may be asked to provide a 
copy of this form. Paragraph (r) is adopted in the final rule as stated 
earlier in this section.
    OFCCP proposed in the NPRM to incorporate in paragraph (y) the 
definition of the ``employment service delivery system'' that was added 
to the definitional section of VEVRAA, 38 U.S.C. 4101(7), by Section 
5(c)(1) of the JVA. Under the JVA, ``employment service delivery 
system'' means a ``service delivery system at which or through which 
labor exchange services, including employment, training, and placement 
services, are offered in accordance with the Wagner-Peyser Act.'' (The 
Wagner-Peyser Act established the Employment Service, which is a 
nationwide system of public employment offices.) The commenter 
recommended that OFCCP revise the definition of ``employment service 
delivery system'' in the final rule to state in plain language the name 
or type of agency with which the employer is to list its job openings.
    OFCCP agrees that contractors should have clear guidance regarding 
the types of agencies with which the employer is to list job openings. 
However, OFCCP also recognizes contractors may wish to satisfy the 
mandatory job listing requirement in a variety of ways, depending on 
the number, timing, and location of the positions to be filled. For 
this reason, OFCCP believes that further defining the appropriate 
``employment delivery system'' would unnecessarily constrain 
contractors' flexibility to list with an appropriate delivery system. 
Instead, in Sec.  60-300.5 of the final rule, OFCCP has added language 
providing contractors with examples of the types of delivery systems 
with which contractors may list job openings. The revised language 
specifically provides that listing employment openings with the state 
workforce agency job bank or the local employment service delivery 
system where the opening occurs will satisfy the requirement to list 
jobs with the appropriate employment delivery system. In light of these 
changes to Sec.  60-300.5, paragraph (y) of the final rule will remain 
as written in the NPRM.

Section 60-300.4 Coverage and Waivers

    This section is identical to Sec.  60-250.4 in the existing VEVRAA 
regulations, except that proposed paragraphs (a)(1) and (a)(2) 
implement the JVA amendments and state that contracts of $100,000 or 
more are covered under VEVRAA. We received no comments for this 
section. Accordingly, Sec.  60-300.4 is adopted in the final rule as 
proposed.

Section 60-300.5 Equal Opportunity Clause

    Paragraph (a) of the final rule contains the equal opportunity (EO) 
clause that must be included in all covered Government contracts and 
subcontracts. The language in paragraph (a)(1) of the EO clause is 
identical to the language in the parallel provision in existing Sec.  
60-250.5, except that paragraph (a)(1) refers to the categories of 
veterans protected under the JVA. Thus, ``disabled veterans'' and 
``Armed Forces service medal veterans'' are mentioned in

[[Page 44397]]

paragraph (a)(1) of the final rule, while ``special disabled veterans'' 
and ``veterans of the Vietnam era'' are referenced in existing Sec.  
60-250.5(a)(1).
    Paragraphs (a)(2) and (a)(3) set out the contractor's obligation to 
list employment openings with the appropriate employment service 
delivery system. The JVA amendments eliminated listing employment 
openings solely with America's Job Bank as an option for complying with 
the mandatory job listing requirement. The JVA requires that 
contractors and subcontractors list their employment openings with the 
appropriate ``employment service delivery system.'' See 38 U.S.C. 
4212(a)(2)(A). In addition to listing their employment openings with 
the appropriate employment service delivery system, the JVA provides 
that contractors and subcontractors also may list their employment 
openings with one-stop career centers under the Workforce Investment 
Act of 1998, other appropriate service delivery points, or America's 
Job Bank (or any additional or subsequent national electronic job bank 
established by the U.S. Department of Labor). Accordingly, paragraph 
(a)(2) of the final rule generally tracks the JVA provision, and 
provides that contractors must list employment openings with the 
appropriate employment service delivery system.
    The three employer associations all expressed concern about the 
elimination of AJB as a means for contractors to fulfill the mandatory 
job listing requirements. One employer association asserted that 
contractors that regularly advertise multiple job openings in locations 
throughout the country will face huge administrative burdens if they 
are required to list each job opening with individual employment 
service offices. The employer association stated that listing with the 
AJB allowed contractors to publicize job opportunities on a nationwide 
basis through a single Web site on the Internet, rather than listing 
them with each local employment service office of each location where 
an open position is being filled. The association claimed that a small 
army of dedicated staff would be required to comply with the 
requirement to list each job with individual employment service 
offices.
    Similarly, another employer association claimed that the money, 
time, and resources required to comply with the requirement to 
separately list job openings with each individual local employment 
services agency would be substantial. The commenter maintained that 
compliance with the separate listing requirement is made more 
challenging by the different protocols for listing jobs that exist in 
the various local employment services offices. According to the 
commenter, some employment service offices require contractors to post 
openings only by regular mail, some accept listings via fax, and some 
accept postings only by email.
    One commenter urged OFCCP to consider alternatives to the proposed 
job listing provision that would reduce the burden on contractors. Two 
commenters raised questions about the status of a Department-sponsored 
solution that would allow contractors to meet both the current and the 
revised mandatory job listing requirement. One commenter recommended 
that the Department continue the effort to develop a Department-
sponsored solution, and that OFCCP delay publishing the final rule 
until after a solution has been implemented.
    Delaying publication of the final rule until development of a 
Department-sponsored solution has been completed is not a feasible 
option. In December 2005, the Government Accountability Office (GAO) 
issued a report entitled ``Veterans' Employment and Training Service 
Labor Actions Needed to Improve Accountability and Help States 
Implement Reforms to Veterans' Employment Services'' (GAO-06-176). The 
GAO Report sets forth results of a review of progress made in 
implementing the reforms to employment and training services for 
veterans required by the JVA. GAO noted that the Department has not yet 
issued regulations to implement the JVA amendments to the affirmative 
action provisions of VEVRAA and recommended that the Department issue 
such regulations as soon as possible. In response to the GAO Report, 
OFCCP agreed to expedite issuing the federal contractor regulations.
    However, OFCCP appreciates the difficulties contractors may face if 
they must list job openings with multiple employment service delivery 
systems, particularly if those systems maintain different methods for 
posting job openings or if the contractor must act to fulfill multiple 
job openings in different geographical locations in a short period of 
time. Therefore, OFCCP has added language to this section providing 
that contractors may fulfill their job posting requirement by listing 
job openings with the appropriate state workforce agency job bank. The 
appropriate state workforce agency job bank shall be the job bank in 
which the job opening occurs. Contractors also may satisfy the posting 
requirement by listing job openings with the local employment service 
delivery system where the opening occurs.
    A contractor may satisfy the mandatory job listing requirement by 
submitting job listings to the appropriate employment delivery system 
in a variety of ways, including via mail, facsimile (FAX), electronic 
mail, or other electronic postings. The vast majority of the state 
workforce agency job banks accept job postings via the Internet. 
Contractors may use third parties, such as private or non-profit sector 
job banks, Internet gateway and portal sites, and recruiting services 
and directories, to assist them with the transmission of job postings 
to the appropriate employment delivery system.
    OFCCP believes that this approach allows contractors the necessary 
flexibility to determine the most effective way to comply with the 
mandatory job listing requirement, depending on the number, timing, and 
location of the positions to be filled. OFCCP will provide a link on 
its Web site to all state workforce agency job banks. This link will 
allow contractors to identify those state workforce agency job banks 
that accept electronically-transmitted job postings. OFCCP is providing 
this link as a courtesy to the contractor community. Contractors remain 
responsible for complying with the requirement to list with the 
appropriate employment delivery system.
    In order to make clear that contractors may satisfy the mandatory 
job listing requirement in a variety of ways, paragraph (a)(2) of the 
final rule reads as follows: ``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 where the contract is being performed, but excluding those of 
independently operated corporate affiliates, with the appropriate 
employment service delivery system where the opening occurs. Listing 
employment openings with the state workforce agency job bank or the 
local employment service delivery system where the opening occurs will 
satisfy the requirement to list jobs with the appropriate employment 
service delivery system. In paragraph (a)(4), OFCCP is changing the 
phrase ``state employment security agency'' to ``state workforce 
agency'' so that paragraph (a)(4) is consistent with paragraph (a)(2) 
of this section.

[[Page 44398]]

    OFCCP also received two comments on the definition of ``executive 
and senior management'' in proposed paragraph (a)6.ii. In order to 
conform to a technical amendment made by the JVA, OFCCP proposed to use 
the term ``senior management'' in proposed paragraph (a)6.ii., instead 
of ``top management,'' which is the term used in existing Sec.  
250.5(a)6.ii. However, in all other respects, the proposed definition 
for the term ``executive and senior management'' is identical to the 
definition of ``executive and top management'' found in the existing 
Sec.  250.5(a)6.ii.
    One commenter observed that, in defining the term ``executive and 
senior management'' in proposed Sec.  60-300.5(a)6.ii. and current 
Sec.  250.5(a)6.ii., OFCCP followed the regulations implementing the 
exemption for executives from the minimum wage and overtime pay 
requirements of the Fair Labor Standards Act (FLSA), published at 29 
CFR part 541 (``part 541 regulations''). The commenter also noted that 
the Department of Labor revised the part 541 regulations, effective 
August 23, 2004, and that the revisions include streamlined tests for 
determining whether a person qualifies as an ``executive'' exempt from 
the overtime provisions. See 69 FR 22122. For the sake of consistency 
and in order to avoid confusion, the commenter maintained that the 
definition of ``executive and senior management'' in paragraph (a)6.ii. 
should conform to the updated tests for determining who qualifies as an 
``executive employee'' set forth in the part 541 regulations.
    In response to the comment, OFCCP has revised the definition of 
``executive and senior management'' to reflect the standards for 
determining when a person qualifies as an ``executive employee'' found 
in 29 CFR 541.100 and 541.101. Thus, paragraph (a)6.ii. in the final 
rule defines the term ``executive and senior management'' as: (1) any 
employee ``(a) Compensated on a salary basis at a rate of not less than 
$455 per week (or $380 per week, if employed in American Samoa by 
employers other than the Federal Government), exclusive of board, 
lodging or other facilities; (b) Whose primary duty is management of 
the enterprise in which the employee is employed or of a customarily 
recognized department or subdivision thereof; (c) Who customarily and 
regularly directs the work of two or more other employees; and (d) Who 
has the authority to hire or fire other employees or whose suggestions 
and recommendations as to the hiring, firing, advancement, promotion or 
any other change of status of other employees are given particular 
weight;'' or (2) any employee ``who owns at least a bona fide 20-
percent equity interest in the enterprise in which the employee is 
employed, regardless of whether the business is a corporate or other 
type of organization, and who is actively engaged in its management.''
    Another commenter expressed the view that the proposed definition 
of ``executive and senior management'' could be interpreted to exclude 
from the mandatory job listing requirement ``most low level managers 
and supervisors.'' The commenter argued that ``executive and senior 
management'' should be defined as ``positions which direct company 
policy and direction and not be hinged to supervision of employees.'' 
OFCCP believes that its revised definition adequately addresses this 
commenter's concerns, as supervisory responsibility is not the sole 
determinant of whether a job is considered ``executive and senior 
management.'' In order to be considered an ``executive and top 
management'' position exempt from the mandatory job listing 
requirement, a job must satisfy all of the factors listed in paragraph 
(a)6.ii.

Subpart B--Discrimination Prohibited

Section 60-300.21 Prohibitions

    The final rule adopts Sec.  60-300.21 as proposed. This section is 
identical to existing Sec.  60-250.21, except that the categories of 
veterans covered under the JVA are referenced in the final rule.
    Paragraph (c) provides that it is unlawful for contractors to 
participate in contractual arrangements that have the effect of 
subjecting the applicants and employees who are covered veterans to 
discrimination. A comment from a workforce development agency expressed 
concerns about the contractual arrangements federal contractors have 
with temporary employment agencies. The commenter asserted that many 
federal contractors use temporary employment agencies to recruit 
candidates for job vacancies and that when the temporary agencies 
receive job orders from a client they tend to refer candidates they 
have ``on-file.'' According to the commenter, temporary agencies are 
not obligated to comply with the mandatory job listing requirements 
because they ``are not by definition subcontractors to the federal 
contractor.'' The commenter argued that, to better serve veterans, 
either temporary agencies should be considered as subcontractors, or 
contractors listing job orders with temporary agencies also should be 
required to list their job orders with the employment service.
    A contractor's use of an employment agency does not relieve the 
contractor of its obligation to comply with the mandatory job listing 
requirement. Section 60-250.5(a) expressly provides that ``listing of 
employment openings with the appropriate employment service delivery 
system pursuant to this clause shall be made at least concurrently with 
the use of any other recruitment source or effort * * *'' (Emphasis 
supplied.) Thus, the regulations generally require contractors to list 
with the appropriate employment service delivery system the jobs that 
also are provided to an employment agency. The only jobs listed with an 
employment agency that need not be listed with the employment service 
are those exempt from the mandatory job listing requirement. Section 
60-250.5(a)6.i exempts from the mandatory job listing requirement 
positions that are executive and senior management, positions filled 
from within the contractor's organizations, and positions lasting three 
days or less.
    In addition, paragraph (c) of this section forbids contractors from 
using an employment agency that discriminates against covered veterans. 
Accordingly, a contractor would violate VEVRAA if it uses an employment 
agency that discriminates against veterans to recruit for vacancies.
    Further, OFCCP disagrees with the commenter's assertion that all 
temporary employment agencies are excluded from coverage under VEVRAA. 
Section 60-300.2(l), as does the parallel provision in the part 60-250 
regulations, defines the term ``subcontract'' as ``any agreement or 
arrangement between a contractor and any person * * * which, in whole 
or in part, is necessary to the performance of any one or more 
contracts; or * * * under which any portion of the contractor's 
obligation under any one or more contracts is performed, undertaken, or 
assumed.'' Whether a particular subcontract is covered under the VEVRAA 
regulations depends on a variety of factors such as the requirements of 
the Government contract in issue and the role of the subcontractor in 
fulfilling the obligations of the Government contract. Thus, some, but 
certainly not all, temporary employment agencies may have agreements 
with Government contractors that would render them a covered 
subcontractor under VEVRAA.

[[Page 44399]]

Section 60-300.22 Direct Threat Defense

    This section is identical to existing Sec.  60-250.22, except that 
the cross-reference is to Sec.  60-300.2(w) of this final rule. OFCCP 
received no comments on this section. It is adopted in the final rule 
as proposed.

Section 60-300.23 Medical Examinations and Inquiries

    This section is identical to existing Sec.  60-250.23, except that 
the proposal references the category of ``disabled veteran(s)'' rather 
than ``special disabled veterans.'' No comments were submitted on this 
section. The final rule adopts Sec.  60-300.23 as proposed.

Section 60-300.24 Drugs and Alcohol

    This section is identical to existing Sec.  60-250.24, except that 
this section includes a citation to Sec.  60-300.23(d). OFCCP received 
no comments on this section. Accordingly, the final rule adopts this 
section as proposed.

Section 60-300.25 Health Insurance, Life Insurance and Other Benefit 
Plans

    This section is identical to Sec.  60-250.25 in the current VEVRAA 
implementing regulations, except that ``disabled veteran'' rather than 
``special disabled veteran'' is referenced in paragraph (d). We 
received no comments on this section. The final rule adopts Sec.  60-
300.25 as proposed.

Subpart C--Affirmative Action Program

Section 60-300.40 Applicability of the Affirmative Action Program 
Requirement

    OFCCP proposed paragraph (a) raised the coverage threshold to a 
contract of $100,000 or more. As discussed in the preamble discussion 
of the Sec.  60-300.1, some comments expressed concern about the 
increased burden that would result if contractors are required to 
develop and maintain two AAPs--one under the part 60-250 and a second 
AAP under part 60-300. OFCCP explained that contractors subject to the 
final rule and the regulations in part 60-250 may develop a single AAP 
that addresses the requirements under parts 60-250 and 60-300.
    One commenter asked about the deadline for developing the AAP 
required under 60-300.40. Paragraph (b) provides that a contractor must 
develop an AAP within 120 days of the commencement of a contract. Under 
the existing VEVRAA regulations, a contractor with a contract of 
$50,000 or more must develop a written AAP. Any contractor with a 
contract of $100,000 or more that was entered into on or after December 
1, 2003, should already have an AAP in place that would meet the 
requirements of this section. The final rule adopts Sec.  60-300.40 
without change.

Section 60-300.42 Invitation to Self-Identify

    This section is identical to Sec.  60-250.42, except that the 
categories of veterans protected under the JVA are referenced in this 
section. In addition, the regulatory citations in this section are to 
provisions in the final rule. We received one comment to this section 
asking for clarification on the self-identification process. The 
process is explained in this section. Section 60-300.42 is adopted in 
the final rule as proposed.

Section 60-300.43 Affirmative Action Policy

    This section is identical to Sec.  60-250.43, except that this 
section specifies the categories of veterans covered under the JVA, and 
contains citations to provisions in the proposed rule. No comments were 
received on this section. Accordingly, Sec.  60-300.43 is adopted in 
the final rule as proposed.

Section 60-300.44 Required Contents of Affirmative Action Programs

    With the exception of changes necessitated by the JVA amendments, 
this section is identical to Sec.  60-250.44 in the existing VEVRAA 
implementing regulations. The categories of veterans protected under 
the JVA are referenced throughout this section. In addition, consistent 
with the technical amendments to VEVRAA, the term ``senior management'' 
is used in paragraph (h)(2)(i), which sets out the requirement that the 
contractor assign responsibility for implementation of the AAP. 
Further, this section contains citations to provisions in the final 
rule. We received no comments on Sec.  60-300.44 and it is adopted in 
the final rule without change.

Subpart D--General Enforcement and Complaint Procedures

Section 60-300.60 Compliance Evaluations

    This section is identical to Sec.  60-250.60, except for the 
differences necessitated by the JVA. One difference is that the 
categories of veterans protected under the JVA are referenced in this 
section. The other difference is found in paragraph (c), which 
addresses OFCCP verification of contractor compliance with reporting 
requirements. Paragraph (c) of existing Sec.  60-250.60 provides that 
OFCCP may verify whether a contractor is complying with its obligation 
to file its Annual VETS-100 Report pursuant to the regulations in 41 
CFR part 61-250. The regulations in part 61-250, which were issued by 
VETS, apply only to contracts entered into before December 1, 2003.
    Paragraph (c) of this section provides that OFCCP may verify 
whether a contractor has complied with applicable reporting 
requirements required under regulations promulgated by VETS. OFCCP 
changed ``any reporting requirement'' from the NPRM to ``applicable 
reporting requirements'' in the final rule for clarity. This change 
gives OFCCP authority to investigate compliance with all applicable 
reporting requirements required under regulations promulgated by VETS, 
including any new reporting requirements that VETS may implement as a 
result of the JVA.
    We received two comments concerning the reporting requirements 
under VEVRAA that are administered by VETS. One commenter stated that 
contractor burden will increase because of the requirements to submit 
the VETS-100 under both parts 60-250 and 60-300. This same commenter 
suggested that OFCCP coordinate its final rule to any changes to the 
VETS-100 Report under VETS. As explained in the discussion of Sec.  60-
300.1, the VEVRAA implementing regulations administered by OFCCP 
contain no reporting requirements. Accordingly, contractors subject to 
the existing regulations in part 60-250 and the regulations in part 60-
300 will not face an increase in their reporting burden under OFCCP's 
rule.
    We also received one comment concerning the relationship between 
OFCCP and VETS compliance evaluations. Under the current regulations in 
part 60-250.5, during the onsite portion of a compliance evaluation, a 
compliance officer confirms with the contractor that it has listed its 
employment openings with the local employment service office and may 
contact the local employment service office directly to verify that the 
contractor has complied with the mandatory job listing requirements. 
Under this final rule, OFCCP will confirm that contractors holding 
Government contracts subject to the JVA have listed employment openings 
with the appropriate employment delivery system and may contact the 
employment delivery system directly to verify this information.
    Under the current regulations in part 60-250.5, OFCCP also confirms 
with the contractor that it has completed a VETS-100 report during the 
onsite portion of a compliance evaluation. If

[[Page 44400]]

the contractor has not completed the VETS-100 report, OFCCP will notify 
VETS. Under this section of the final rule, OFCCP will confirm that a 
contractor holding a Government contract covered by the JVA has 
completed any applicable VETS reporting requirements, including any new 
reporting requirements that VETS may implement as a result of the JVA. 
If the contractor has not completed any applicable reporting 
requirements, OFCCP will notify VETS.

Section 60-300.61 Complaint Procedures

    This section is identical to Sec.  60-250.61, except for the 
changes necessary to conform to the amendments made by the JVA. 
Further, the regulatory citations in this section are to sections in 
the final rule. In paragraph (a) of the final rule, OFCCP is changing 
``state employment security agency'' to ``state workforce agency'' to 
be consistent with Sec.  300.5.

Section 60-300.64 Show Cause Notices

    Except for the citations to provisions in the final rule, this 
section is identical to Sec.  60-250.64. Section 60-300.64 is adopted 
in the final rule as proposed.

Section 60-300.65 Enforcement Proceedings

    Except for the citations to provisions in the final rule, this 
section is identical to Sec.  60-250.65. We received no comments to 
this section; it is adopted in the final rule without change.

Section 60-300.66 Sanctions and Penalties

    Except for the citations to provisions in the final rule, this 
section is identical to Sec.  60-250.66. The final rule adopts Sec.  
60-300.66 as proposed.

Section 60-300.69 Intimidation and Interference

    This section is identical to Sec.  60-250.69, except that this 
section refers to the categories of veterans protected under the JVA. 
Section 60-300.69 is adopted in the final rule without change.

Subpart E--Ancillary Matters

Section 60-300.84 Responsibilities of Appropriate Employment Service 
Delivery System

    According to VEVRAA, 38 U.S.C. Section 4212 (a)(2)(B), appropriate 
employment service delivery systems are required to give priority in 
referral to disabled veterans, recently separated veterans, other 
protected veterans, and Armed Forces service medal veterans to 
employment openings listed by contractors with such appropriate 
employment delivery systems pursuant to the mandatory job listing 
requirements of the equal opportunity clause. According to Section 
4212(a)(2)(c), the appropriate employment service delivery system also 
shall provide a list of such employment openings to States, political 
subdivisions of States, or any private entities or organizations under 
contract to carry out employment, training, and placement services 
under chapter 41 of title 38.
    OFCCP proposed Sec.  60-300.84 was identical to current Sec.  60-
250.84. In the final rule, OFCCP has revised this section to clarify 
the scope of its authority over, and its interactions with, these 
employment delivery systems. OFCCP may contact the employment delivery 
systems to request information pertinent to whether the contractor is 
in compliance with the mandatory job listing requirements. OFCCP does 
not, however, have responsibility for ensuring that the appropriate 
employment delivery systems provide priority referral to covered 
veterans. Accordingly, OFCCP added the words ``By statute'' to the 
first sentence of this section to clarify that the obligation of 
employment delivery systems to provide veterans with priority of 
service arises by statute, and not because of a requirement imposed by 
OFCCP.

Appendix A to Part 60-300--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    Except for the references to the categories of veterans covered 
under the JVA and citations to provisions in the final rule, Appendix A 
to part 60-300 is substantially similar to Appendix A to part 60-250 in 
the existing VEVRAA regulations. We received no comments on Appendix A. 
Accordingly, Appendix A is adopted in the final rule without change.

Appendix B to Part 60-300--Sample Invitation to Self-Identify

    Except for the references to the categories of veterans covered 
under the JVA and citations to provisions in the final rule, Appendix B 
to part 60-300 is substantially similar to Appendix B to part 60-250 in 
the existing VEVRAA regulations. We received no comments on this aspect 
of the proposal. The final rule adopts Appendix B as proposed in the 
NPRM.

Appendix C to Part 60-300--Review of Personnel Processes

    Proposed Appendix C to part 60-300 is substantially similar to 
Appendix C to part 60-250 in the existing VEVRAA regulations, except 
for the references to the categories of veterans covered under the JVA 
and citations to provisions in the proposed rule. We received no 
comments on Appendix C. The final rule adopts Appendix C without 
change.

Regulatory Procedures

Executive Order 12866

    The Department is issuing this final rule in conformance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), Regulatory Planning 
and Review, but is not economically significant as defined in section 
3(f)(1). Therefore, the information enumerated in section 6(a)(3)(C) of 
the order is not required. Pursuant to Executive Order 12866, this rule 
has been reviewed by the Office of Management and Budget (OMB).

Executive Order 13132

    OFCCP has reviewed this rule in accordance with Executive Order 
13132 regarding federalism, and has determined that it does not have 
``federalism implications.'' This rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

Regulatory Flexibility Act

    This rule clarifies existing requirements for Federal contractors. 
In view of this fact and because the rule does not substantively change 
existing obligations for Federal contractors, the Department concludes 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The Secretary has certified to 
the Chief Counsel for Advocacy of the Small Business Administration to 
this effect. Therefore, a regulatory flexibility analysis under the 
Regulatory Flexibility Act is not required.

Unfunded Mandates Reform

    Executive Order 12875--This rule does not create an unfunded 
Federal mandate upon any State, local, or tribal government.
    Unfunded Mandates Reform Act of 1995--This rule does 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.

[[Page 44401]]

Paperwork Reduction Act

    The information collection requirements contained in the existing 
VEVRAA regulations, with the exception of those related to complaint 
procedures, are currently approved under OMB Control No. 1215-0072 
(Recordkeeping and Reporting Requirements-Supply and Service) and OMB 
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The 
information collection requirements contained in the existing complaint 
procedures regulation are currently approved under OMB Control No. 
1215-0131. This rule adopts a new set of VEVRAA implementing 
regulations that incorporate the changes made by the JVA amendments, 
and apply to Government contracts entered on or after December 1, 2003. 
The JVA amended VEVRAA by increasing the contract coverage threshold, 
changing the categories of veterans protected under the law, and 
changing the manner in which the mandatory job listing requirement is 
to be implemented. The increase in the contract coverage threshold from 
$25,000 to $100,000 may result in a decrease in the number of 
respondents and burden hours. However, this rule does not make any 
changes to the currently approved information collections. 
Consequently, this rule need not be reviewed by the Office of 
Management and Budget under the authority of the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501 et seq.

List of Subjects in 41 CFR Part 60-300

    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, DC, this 2nd day of August, 2007.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.

0
Accordingly, for the reasons set forth in the preamble, Chapter 60 of 
Title 41 of the Code of Federal Regulations is amended to read as 
follows:

PART 60-300--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF CONTRACTORS AND SUBCONTRACTORS REGARDING DISABLED VETERANS, 
RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED 
FORCES SERVICE MEDAL VETERANS

Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-300.1 Purpose, applicability and construction.
60-300.2 Definitions.
60-300.3 [Reserved]
60-300.4 Coverage and waivers.
60-300.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-300.20 Covered employment activities.
60-300.21 Prohibitions.
60-300.22 Direct threat defense.
60-300.23 Medical examinations and inquiries.
60-300.24 Drugs and alcohol.
60-300.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-300.40 Applicability of the affirmative action program 
requirement.
60-300.41 Availability of affirmative action program.
60-300.42 Invitation to self-identify.
60-300.43 Affirmative action policy.
60-300.44 Required contents of affirmative action programs.
Subpart D--General Enforcement and Complaint Procedures
60-300.60 Compliance evaluations.
60-300.61 Complaint procedures.
60-300.62 Conciliation agreements.
60-300.63 Violation of conciliation agreements.
60-300.64 Show cause notices.
60-300.65 Enforcement proceedings.
60-300.66 Sanctions and penalties.
60-300.67 Notification of agencies.
60-300.68 Reinstatement of ineligible contractors.
60-300.69 Intimidation and interference.
60-300.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-300.80 Recordkeeping.
60-300.81 Access to records.
60-300.82 Labor organizations and recruiting and training agencies.
60-300.83 Rulings and interpretations.
60-300.84 Responsibilities of appropriate employment service 
delivery system.
Appendix A to Part 60-300--Guidelines on a Contractor's Duty To 
Provide Reasonable Accommodation
Appendix B to Part 60-300--Sample Invitation To Self-Identify
Appendix C to Part 60-300--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.  60-300.1  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 
covered veterans. Disabled veterans, recently separated veterans, other 
protected veterans, and Armed Forces service medal veterans are covered 
veterans under VEVRAA.
    (b) Applicability. This part applies to any Government contract or 
subcontract of $100,000 or more, entered into or modified on or after 
December 1, 2003, 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.  60-300.40(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. Any contractor or subcontractor whose only 
contract(s) for the purchase, sale or use of personal property and 
nonpersonal services (including construction) was entered into before 
December 1, 2003 (and not modified as described above) must follow part 
60-250. Any contractor or subcontractor who has contracts for the 
purchase, sale or use of personal property and nonpersonal services 
(including construction) that were entered into before December 1, 2003 
(and not modified as described above), and contracts that were entered 
into on or after December 1, 2003, must follow both parts 60-250 and 
60-300.
    (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 disabled veterans, recently 
separated veterans, other protected veterans, or Armed Forces service 
medal veterans as compared to the protection afforded by this part. It 
may be a defense to a charge

[[Page 44402]]

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.  60-300.2  Definitions.

    For the purpose of this part:
    (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.  60-300.5, ``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 in this part, 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 this paragraph (i) and paragraph (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 this paragraph (i) and 
paragraph (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 this paragraph (i) and paragraph (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 supervision, 
inspection, and other on-site functions incidental to the actual 
construction.
    (6) Personal property, as used in this paragraph (i) and paragraph 
(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 $100,000 or more.
    (k) Prime contractor means any person holding a contract of 
$100,000 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 
$100,000 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) Disabled veteran means:
    (1) A veteran of the U.S. military, ground, naval or air service 
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 Secretary of Veterans Affairs, or
    (2) A person who was discharged or released from active duty 
because of a service-connected disability.
    (o) Qualified disabled veteran means a disabled veteran who has the 
ability to perform the essential functions of the employment position 
with or without reasonable accommodation.
    (p) Other protected veteran means a veteran who served on active 
duty in the U.S. military, ground, naval or air service during a war or 
in a campaign or expedition for which a campaign badge has been 
authorized, under the laws administered by the Department of Defense.
    (q) Recently separated veteran means any veteran during the three-
year period beginning on the date of such veteran's discharge or 
release from active duty in the U.S. military, ground, naval or air 
service.
    (r) Armed Forces service medal veteran means any veteran who, while 
serving on active duty in the U.S. military, ground, naval or air 
service, participated in a United States military operation for which 
an Armed Forces service medal was awarded pursuant to Executive Order 
12985 (61 FR 1209).
    (s) Essential functions--(1) In general. The term essential 
functions means fundamental job duties of the employment position the 
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;

[[Page 44403]]

    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (t) 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 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 disabled veterans is not limited 
to those who ultimately demonstrate that they are qualified to 
perform the job in issue. 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 disabled veteran to 
perform the essential functions of that position; or
    (iii) Modifications or adjustments that enable the contractor's 
employee who is a disabled veteran to enjoy equal benefits and 
privileges of employment as are enjoyed by the contractor's other 
similarly situated employees who are not 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 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 
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 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 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.
---------------------------------------------------------------------------

    (u) 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 (u)(2) of this section.
    (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.
    (v) 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.
    (w) 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 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.
    (x) Compliance evaluation means any one or combination of actions 
OFCCP may take to examine a Federal contractor's or subcontractor's 
compliance with one or more of the requirements of the Vietnam Era 
Veterans' Readjustment Assistance Act.
    (y) Employment service delivery system means a service delivery 
system at which or through which labor exchange services, including 
employment, training, and placement services, are offered in accordance 
with the Wagner-Peyser Act.
    (z) Veteran means a person who served in the active military, 
naval, or air service of the United States, and who was discharged or 
released therefrom under conditions other than dishonorable.


Sec.  60-300.3  [Reserved]


Sec.  60-300.4  Coverage and waivers.

    (a) General--(1) Contracts and subcontracts of $100,000 or more. 
Contracts and subcontracts of $100,000 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 $100,000. 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 
$100,000 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

[[Page 44404]]

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 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.  60-300.5  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 DISABLED VETERANS, RECENTLY SEPARATED VETERANS, 
OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS

    1. The contractor will not discriminate against any employee or 
applicant for employment because he or she is a disabled veteran, 
recently separated veteran, other protected veteran, or Armed Forces 
service medal veteran 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 disabled veteran, recently separated 
veteran, other protected veteran, or Armed Forces service medal 
veteran 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 
where the contract is being performed, but excluding those of 
independently operated corporate affiliates, with the appropriate 
employment service delivery system where the opening occurs. Listing 
employment openings with the state workforce agency job bank or with 
the local employment service delivery system where the opening 
occurs will satisfy the requirement to list jobs with the 
appropriate employment service delivery system.
    3. Listing of employment openings with the appropriate 
employment service delivery 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 a contractor, other than a state or local 
governmental contractor, becomes contractually bound to the listing 
provisions in paragraphs 2 and 3 of this clause, it shall advise the 
state workforce agency in each state where it has establishments of 
the name and location of each hiring location in the state. As long 
as the contractor is contractually bound to these provisions and has 
so advised the state agency, there is no need to advise the state 
agency of subsequent contracts. The contractor may advise the state 
agency 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, the Virgin Islands, American 
Samoa, the Commonwealth of the Northern Mariana Islands, Wake 
Island, and the Trust Territories of the Pacific Islands.
    6. As used in this clause: i. All employment openings includes 
all positions except executive and senior 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. Executive and senior management means: (1) Any employee (a) 
compensated on a salary basis at a rate of not less than $455 per 
week (or $380 per week, if employed in American Samoa by employers 
other than the

[[Page 44405]]

Federal Government), exclusive of board, lodging or other 
facilities; (b) whose primary duty is management of the enterprise 
in which the employee is employed or of a customarily recognized 
department or subdivision thereof; (c) who customarily and regularly 
directs the work of two or more other employees; and (d) who has the 
authority to hire or fire other employees or whose suggestions and 
recommendations as to the hiring, firing, advancement, promotion or 
any other change of status of other employees are given particular 
weight; or (2) any employee who owns at least a bona fide 20-percent 
equity interest in the enterprise in which the employee is employed, 
regardless of whether the business is a corporate or other type of 
organization, and who is actively engaged in its management.
    iii. 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 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, 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 disabled veterans, recently 
separated veterans, other protected veterans, or Armed Forces 
service medal veterans. The contractor must ensure that applicants 
or employees who are 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 
disabled veterans, recently separated veterans, other protected 
veterans, and Armed Forces service medal veterans.
    11. The contractor will include the provisions of this clause in 
every subcontract or purchase order of $100,000 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 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 60-300.5(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.  60-300.66 as may be ordered by the Secretary or the 
Deputy Assistant Secretary.

Subpart B--Discrimination Prohibited


Sec.  60-300.20  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.  60-300.21  Prohibitions.

    The term discrimination includes, but is not limited to, the acts 
described in this section and Sec.  60-300.23.
    (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 
disabled veteran, recently separated veteran, other protected veteran, 
or Armed Forces service medal veteran.
    (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 disabled veteran, recently 
separated veteran, other protected veteran, or Armed Forces service 
medal veteran. For example, the contractor may not segregate qualified 
disabled veterans, recently separated veterans, other protected 
veterans, or Armed Forces service medal veterans 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 disabled 
veteran, recently separated veteran, other protected veteran, or

[[Page 44406]]

Armed Forces service medal veteran 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 
disabled veteran, recently separated veteran, other protected veteran, 
or Armed Forces service medal veteran; or
    (2) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (e) Relationship or association with a disabled veteran, recently 
separated veteran, other protected veteran, or Armed Forces service 
medal veteran. 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 disabled veteran, recently 
separated veteran, other protected veteran, or Armed Forces service 
medal 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 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 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 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 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 
disabled veterans, recently separated veterans, other protected 
veterans, or Armed Forces service medal veterans 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 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 disabled veterans, recently 
separated veterans, other protected veterans, or Armed Forces service 
medal veterans 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 disabled veteran because the applicant's 
disability prevents him or her from performing marginal functions. When 
considering a disabled veteran, recently separated veteran, other 
protected veteran, or Armed Forces service medal veteran 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 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 disabled 
veterans, recently separated veterans, other protected veterans, or 
Armed Forces service medal veterans, 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.  60-300.22  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-
300.2(w) defining direct threat.)


Sec.  60-300.23  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 
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

[[Page 44407]]

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 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 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.  60-300.42.
    (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.  60-300.24  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.  60-300.23. 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 Sec. Sec.  60-300.23(b)(5) and 60-
300.23(d)(2).


Sec.  60-300.25  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 disabled veteran equal 
access to insurance or subject a qualified 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.  60-300.40  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 $100,000 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.

[[Page 44408]]

    (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.  60-300.41  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.  60-300.42  Invitation to self-identify.

    (a) Disabled veterans. The contractor shall invite applicants to 
inform the contractor whether the applicant believes that he or she is 
a disabled veteran who may be covered by the Act and wishes to benefit 
under the affirmative action program. Such invitation shall be extended 
after making an offer of employment to a job applicant and before the 
applicant begins his or her employment duties, except that the 
contractor may invite disabled veterans to self-identify prior to 
making a job offer when:
    (1) The invitation is made when the contractor actually is 
undertaking affirmative action for disabled veterans at the pre-offer 
stage; or
    (2) The invitation is made pursuant to a Federal, state or local 
law requiring affirmative action for disabled veterans.
    (b) Recently separated veterans, other protected veterans, and 
Armed Forces service medal veterans. The contractor shall invite 
applicants to inform the contractor whether the applicant believes that 
he or she is a recently separated veteran, other protected veteran, or 
Armed Forces service medal veteran who may be covered by the Act and 
wishes to benefit under the affirmative action program. Such invitation 
may be made at any time before the applicant begins his or her 
employment duties.
    (c) The invitations referenced in paragraphs (a) and (b) 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 invitations also shall summarize the relevant portions of 
the Act and the contractor's affirmative action program. Furthermore, 
the invitations 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. (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 a 
disabled veteran 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.)
    (d) If an applicant so identifies himself or herself as a disabled 
veteran, 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 in accordance with Sec.  
60-300.23(d) on persons who have self-identified as disabled veterans.
    (e) The contractor shall keep all information on self 
identification confidential. The contractor shall provide the 
information to OFCCP upon request. This information may be used only in 
accordance with this part.
    (f) 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 disabled veterans, 
recently separated veterans, other protected veterans, or Armed Forces 
service medal veterans.
    (g) Nothing in this section shall relieve the contractor from 
liability for discrimination under the Act.


Sec.  60-300.43  Affirmative action policy.

    Under the affirmative action obligations imposed by the Act 
contractors shall not discriminate because of status as a disabled 
veteran, recently separated veteran, other protected veteran, or Armed 
Forces service medal veteran and shall take affirmative action to 
employ and advance in employment qualified disabled veterans, recently 
separated veterans, other protected veterans, and Armed Forces service 
medal veterans at all levels of employment, including the executive 
level. Such action shall apply to all employment activities set forth 
in Sec.  60-300.20.


Sec.  60-300.44  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 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 disabled veteran, recently separated 
veteran, other protected veteran, or Armed Forces service medal 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 
evaluation, 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 
disabled veterans, recently separated veterans, other protected 
veterans, or Armed Forces service medal veterans;
    (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 disabled veterans, recently 
separated veterans, other protected veterans, or Armed Forces service 
medal veterans; or
    (4) Exercising any other right protected by VEVRAA or its 
implementing regulations in this part.

[[Page 44409]]

    (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 disabled veterans, recently separated veterans, other 
protected veterans, or Armed Forces service medal veterans for job 
vacancies filled either by hiring or promotion, and for all training 
opportunities offered or available. The contractor shall ensure that 
when a disabled veteran, recently separated veteran, other protected 
veteran, or Armed Forces service medal veteran 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 disabled veterans, recently separated veterans, other 
protected veterans, and Armed Forces service medal veterans 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 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 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 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.  60-300.2(w) defining direct threat.)
    (d) Reasonable accommodation to physical and mental limitations. As 
is provided in Sec.  60-300.21(f), as a matter of nondiscrimination the 
contractor must make reasonable accommodation to the known physical or 
mental limitations of an otherwise qualified disabled veteran unless it 
can demonstrate that the accommodation would impose an undue hardship 
on the operation of its business. As a matter of affirmative action, if 
an employee who is known to be a 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 disabled veteran, recently separated veteran, other 
protected veteran, or Armed Forces service medal veteran.
    (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 disabled veterans, recently separated 
veterans, other protected veterans, and Armed Forces service medal 
veterans. 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 disabled veterans, 
recently separated veterans, other protected veterans, and Armed Forces 
service medal veterans, to fulfill its commitment to provide meaningful 
employment opportunities to such veterans:
    (i) The Local Veterans' Employment Representative in the local 
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 disabled veterans, recently separated veterans, other protected 
veterans, or Armed Forces service medal veterans. 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 disabled 
veterans, recently separated veterans, other protected veterans, or 
Armed Forces service medal veterans 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

[[Page 44410]]

shall have authority to approve or disapprove the acceptability of 
affirmative action programs.
    (5) Disabled veterans, recently separated veterans, other protected 
veterans, or Armed Forces service medal veterans 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 
disabled veterans, recently separated veterans, other protected 
veterans, and Armed Forces service medal veterans 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 disabled veterans, recently 
separated veterans, other protected veterans, and Armed Forces service 
medal veterans.
    (8) The contractor, in making hiring decisions, should consider 
applicants who are known disabled veterans, recently separated 
veterans, other protected veterans, or Armed Forces service medal 
veterans 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 disabled veterans, recently separated 
veterans, other protected veterans, and Armed Forces service medal 
veterans. 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;
    (ii) Inform all employees and prospective employees of its 
commitment to engage in affirmative action to increase employment 
opportunities for qualified disabled veterans, recently separated 
veterans, other protected veterans, and Armed Forces service medal 
veterans. 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 disabled veterans, 
recently separated veterans, other protected veterans, and Armed Forces 
service medal veterans in company publications; and
    (viii) When employees are featured in employee handbooks or similar 
publications for employees, include 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 disabled veterans, recently separated 
veterans, other protected veterans, and Armed Forces service medal 
veterans 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 senior 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.  60-300.60  Compliance evaluations.

    (a) OFCCP may conduct compliance evaluations to determine if the 
contractor is taking affirmative action to employ, advance in 
employment and otherwise treat qualified individuals without 
discrimination based on their status as a disabled veteran, recently 
separated veteran, other protected veteran, or Armed Forces service 
medal veteran in all employment practices. A compliance evaluation may 
consist of any one or any combination of the following investigative 
procedures:
    (1) Compliance review. A comprehensive analysis and evaluation of 
the hiring and employment practices of the contractor, the written 
affirmative action program, and the results of the affirmative action 
efforts undertaken by the contractor. A compliance review may proceed 
in three stages:
    (i) A desk audit of the written affirmative action program and 
supporting documentation to determine whether all elements required by 
the regulations in this part are included, whether the affirmative 
action program meets agency standards of reasonableness, and whether 
the affirmative action program and supporting documentation satisfy 
agency standards of acceptability. The desk audit is conducted at OFCCP 
offices;
    (ii) An on-site review, conducted at the contractor's establishment 
to investigate unresolved problem areas identified in the affirmative 
action program and supporting documentation

[[Page 44411]]

during the desk audit, to verify that the contractor has implemented 
the affirmative action program and has complied with those regulatory 
obligations not required to be included in the affirmative action 
program, and to examine potential instances or issues of 
discrimination. An on-site review normally will involve an examination 
of the contractor's personnel and employment policies, inspection and 
copying of documents related to employment actions, and interviews with 
employees, supervisors, managers, hiring officials; and
    (iii) Where necessary, an off-site analysis of information supplied 
by the contractor or otherwise gathered during or pursuant to the on-
site review;
    (2) Off-site review of records. An analysis and evaluation of the 
affirmative action program (or any part thereof) and supporting 
documentation, and other documents related to the contractor's 
personnel policies and employment actions that may be relevant to a 
determination of whether the contractor has complied with the 
requirements of the Executive Order and regulations;
    (3) Compliance check. A determination of whether the contractor has 
maintained records consistent with Sec.  60-300.80; at the contractor's 
option the documents may be provided either on-site or off-site; or
    (4) Focused review. An on-site review restricted to one or more 
components of the contractor's organization or one or more aspects of 
the contractor's employment practices.
    (b) Where deficiencies are found to exist, reasonable efforts shall 
be made to secure compliance through conciliation and persuasion 
pursuant to Sec.  60-300.62.
    (c) Reporting Requirements. During a compliance evaluation, OFCCP 
may verify whether the contractor has complied with applicable 
reporting requirements required under regulations promulgated by the 
Veterans' Employment and Training Service (VETS). If the contractor has 
not complied with any such reporting requirement, OFCCP will notify 
VETS.


Sec.  60-300.61  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, NW., 
Washington, DC 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) at the local 
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 workforce agency 
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 disabled 
veteran, recently separated veteran, other protected veteran, or Armed 
Forces service medal veteran. 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;
    (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 
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-
300.65(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.  60-300.62.


Sec.  60-300.62  Conciliation agreements.

    If a compliance evaluation, 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

[[Page 44412]]

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.


Sec.  60-300.63  Violation of conciliation agreements.

    (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.


Sec.  60-300.64  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.  60-300.65).


Sec.  60-300.65  Enforcement proceedings.

    (a) General. (1) If a compliance evaluation, 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 
evaluation. 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.  60-300.5, 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 and Labor-Management, Regional Solicitors, 
and Associate Regional Solicitors.
    (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 Sec.  60-300.5; and to ``regulations'' shall mean the 
regulations contained in this part.


Sec.  60-300.66  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.  60-300.68. 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.  60-300.67  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.  60-300.68  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 evaluation of the 
contractor and may require the contractor to supply additional

[[Page 44413]]

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 Labor-Management 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.  60-300.69  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 evaluation, hearing, or any other activity related to the 
administration of the Act or any other Federal, state or local law 
requiring equal opportunity for disabled veterans, recently separated 
veterans, other protected veterans, or Armed Forces service medal 
veterans;
    (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 disabled veterans, recently separated veterans, other 
protected veterans, or Armed Forces service medal veterans, 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.  60-300.70  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.  60-300.80  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 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 evaluation has been 
initiated, or that an enforcement action has been commenced, the 
contractor shall preserve all personnel records relevant to the 
complaint, compliance evaluation or action until final disposition of 
the complaint, compliance evaluation or action. The term personnel 
records relevant to the complaint, compliance evaluation 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 the date that the Office of Management and 
Budget has cleared the requirements.


Sec.  60-300.81  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 
evaluations 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.  60-300.82  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

[[Page 44414]]

with, and to assist in, the implementation of the purposes of the Act.


Sec.  60-300.83  Rulings and interpretations.

    Rulings under or interpretations of the Act and this part shall be 
made by the Deputy Assistant Secretary.


Sec.  60-300.84  Responsibilities of appropriate employment service 
delivery system.

    By statute, appropriate employment service delivery systems are 
required to refer qualified disabled veterans, recently separated 
veterans, other protected veterans, and Armed Forces service medal 
veterans to fill employment openings listed by contractors with such 
appropriate employment delivery systems pursuant to the mandatory job 
listing requirements of the equal opportunity clause and are required 
to give priority to disabled veterans, recently separated veterans, 
other protected veterans, and Armed Forces service medal veterans in 
making such referrals. The employment service delivery systems shall 
provide OFCCP, upon request, information pertinent to whether the 
contractor is in compliance with the mandatory job listing requirements 
of the equal opportunity clause.

Appendix A to Part 60-300--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.  60-300.1(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 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'' 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.  60-300.2(o), a 
disabled veteran is qualified if he or she has the ability to 
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 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 disabled veterans. As 
stated in Sec.  60-300.42(a) (see also Appendix B of this part), the 
contractor is required to invite applicants who have been provided 
an offer of employment, before they are placed on the contractor's 
payroll, to indicate whether they are a disabled veteran who may be 
covered by the Act and wish to benefit under the contractor's 
affirmative action program. Section 60-300.42(d) further provides 
that the contractor should seek the advice of disabled veterans who 
``self-identify'' in this way as to proper placement and appropriate 
accommodation. Moreover, Sec.  60-300.44(d) provides that if an 
employee who is a known 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 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 who is a 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 disabled veterans to perform the essential 
functions of the position held or desired; and (3) accommodations 
that enable employees who are 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 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 60-300.2(t) 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 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 (1-800-669-4000 (voice), 1-
800-669-6820 (TTY)), the Job Accommodation Network (JAN) operated by 
the Office of Disability Employment Policy in the U.S. Department of 
Labor (1-800-526-7234 or 1-800-232-9675), private disability 
organizations (including those that serve veterans), and other 
employers.
    6. With respect to accommodations that can permit an employee 
who is a disabled veteran to perform essential functions 
successfully, a reasonable accommodation may require the contractor 
to, for instance,

[[Page 44415]]

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 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-
300.2(t) is job restructuring. This may involve reallocating or 
redistributing those nonessential, marginal job functions which a 
qualified disabled veteran cannot perform to another position. 
Accordingly, if a clerical employee who is a 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 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 disabled 
veteran. Job restructuring may also involve allowing part-time or 
modified work schedules. For instance, flexible or adjusted work 
schedules could benefit disabled veterans who cannot work a standard 
schedule because of the need to obtain medical treatment, or 
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 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 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 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 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 disabled veterans. It should also be noted 
that the contractor is not required to promote a 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 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 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 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.

Appendix B to Part 60-300--Sample Invitation to Self-identify

    Note: When the invitation to self-identify is being extended to 
disabled veterans prior to an offer of employment, as is permitted 
in limited circumstances under Sec. Sec.  60-300.42(a)(1) and (2), 
paragraph 7(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. 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, recently separated veterans, other protected veterans, and 
Armed Forces service medal veterans.
    2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN 
INVITATION TO RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, 
AND ARMED FORCES SERVICE MEDAL VETERANS ONLY.] If you are a recently 
separated veteran, other protected veteran, or Armed Forces service 
medal veteran, we would like to include you under our affirmative 
action program. If you would like to be included under the 
affirmative action program, please tell us. The term ``recently 
separated veteran'' refers to any veteran during the three-year 
period beginning on the date of such veteran's discharge or release 
from active duty. The term ``other protected veteran'' refers to a 
person who served on active duty during a war or in a campaign or 
expedition for which a campaign badge has been authorized, under 
laws administered by the Department of Defense. The term ``Armed 
Forces service medal veteran'' refers to a person who, while serving 
on active duty in the Armed Forces, participated in a United States 
military operation for which an Armed Forces service medal was 
awarded pursuant to Executive Order 12985 (62 FR 1209).
    [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION 
TO DISABLED VETERANS ONLY.] If you are a disabled veteran, we would 
like to include you in our affirmative action program. If you would 
like to be included under the affirmative action program, please 
tell us. This information will assist us in placing you in an 
appropriate position and in making accommodations for your 
disability. The term ``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 Secretary, or was discharged or released from 
active duty because of a service-connected disability.
    [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION 
TO DISABLED VETERANS AS WELL AS RECENTLY SEPARATED VETERANS, OTHER 
PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS.] If you 
are a disabled veteran, recently separated veteran, other protected 
veteran, or Armed Forces service medal veteran, we would like to 
include you under our affirmative action program. If you would like 
to be included under the affirmative action program, please tell us. 
[The contractor should include here the definitions of ``disabled 
veteran,'' ``recently separated veteran,'' ``other protected 
veteran,'' and ``Armed Forces service medal veteran'' found in the 
two preceding paragraphs.]
    3. You may inform us of your desire to benefit under the program 
at this time and/or at any time in the future.

[[Page 44416]]

    4. Submission of this information is voluntary and refusal to 
provide it will not subject you to any adverse treatment. 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.
    5. The 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 
you have a condition that might require emergency treatment; and 
(iii) Government officials engaged in enforcing laws administered by 
OFCCP, or enforcing the Americans with Disabilities Act, may be 
informed.
    6. [The contractor should here insert a brief provision 
summarizing the relevant portion of its affirmative action program.]
    7. [THE FOLLOWING TEXT SHOULD BE USED ONLY WHEN EXTENDING AN 
INVITATION TO DISABLED VETERANS, EITHER BY THEMSELVES OR IN 
COMBINATION WITH RECENTLY SEPARATED VETERANS, OTHER PROTECTED 
VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS. PARAGRAPH 7(II) 
SHOULD BE OMITTED WHEN THE INVITATION TO SELF-IDENTIFY IS BEING 
EXTENDED PRIOR TO AN OFFER OF EMPLOYMENT.] 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. This information will assist us in 
placing you in an appropriate position and in making accommodations 
for your disability.

Appendix C to Part 60-300--Review of Personnel Processes

    The following is a set of procedures which contractors may use 
to meet the requirements of Sec.  60-300.44(b):
    1. The application or personnel form of each known applicant who 
is a disabled veteran, recently separated veteran, other protected 
veteran, or Armed Forces service medal veteran 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 disabled 
veteran, recently separated veteran, other protected veteran, or 
Armed Forces service medal veteran 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 disabled 
veteran, recently separated veteran, other protected veteran, or 
Armed Forces service medal veteran is rejected for employment, 
promotion, or training, the contractor should prepare a statement of 
the reason as well as a description of the accommodations considered 
(for a rejected disabled veteran). The statement of the reason for 
rejection (if the reason is medically related), and the description 
of the accommodations considered, should be treated as confidential 
medical records in accordance with Sec.  60-300.23(d). These 
materials should be available to the applicant or employee concerned 
upon request.
    4. Where applicants or employees are selected for hire, 
promotion, or training and the contractor undertakes any 
accommodation which makes it possible for him or her to place a 
disabled veteran on the job, the contractor should make a record 
containing a description of the accommodation. The record should be 
treated as a confidential medical record in accordance with Sec.  
60-300.23(d).

[FR Doc. E7-15385 Filed 8-7-07; 8:45 am]
BILLING CODE 4510-CM-P