[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23358-23425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8693]



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Vol. 76

Tuesday,

No. 80

April 26, 2011

Part II





Department of Labor





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Office of Federal Contract Compliance Programs



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41 CFR Parts 60-250 and 60-300



 Affirmative Action and Nondiscrimination Obligations of Contractors 
and Subcontractors Regarding Protected Veterans; Proposed Rule

  Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / 
Proposed Rules  

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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Parts 60-250 and 60-300

RIN 1250-AA00


Affirmative Action and Nondiscrimination Obligations of 
Contractors and Subcontractors Regarding Protected Veterans

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
proposing to revise regulations implementing the affirmative action 
provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 
1974, as amended, which requires covered Federal contractors and 
subcontractors to take affirmative action in employment on behalf of 
specified categories of protected veterans. The proposed regulations 
would strengthen these affirmative action provisions, detailing 
specific actions a contractor must take to satisfy its obligations. 
They would also increase the contractor's data collection obligations, 
and require the contractor to establish hiring benchmarks to assist in 
measuring the effectiveness of its affirmative action efforts. 
Rescission of 41 CFR part 60-250 as obsolete is also proposed.

DATES: To be assured of consideration, comments must be received on or 
before June 27, 2011.

ADDRESSES: You may submit comments, identified by RIN number 1250-AA00, 
by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Fax: (202) 693-1304 (for comments of six pages or less).
     Mail: Debra A. Carr, Director, Division of Policy, 
Planning, and Program Development, Office of Federal Contract 
Compliance Programs, Room C-3325, 200 Constitution Avenue, NW., 
Washington, DC 20210.
    Receipt of submissions will not be acknowledged; however, the 
sender may request confirmation that a submission has been received by 
telephoning OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TTY) 
(these are not toll-free numbers).
    All comments received, including any personal information provided, 
will be available for public inspection during normal business hours at 
Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210, or via 
the Internet at http://www.regulations.gov. Upon request, individuals 
who require assistance to review comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
Notice of Proposed Rulemaking (NPRM) will be made available in the 
following formats: Large print, electronic file on computer disk, and 
audiotape. To schedule an appointment to review the comments and/or to 
obtain this NPRM in an alternate format, please contact OFCCP at the 
telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of 
Policy, Planning and Program Development, Office of Federal Contract 
Compliance Programs, 200 Constitution Avenue, NW., Room C-3325, 
Washington, DC 20210.
    Telephone: (202) 693-0102 (voice) or (202) 693-1337 (TTY).

SUPPLEMENTARY INFORMATION:

Background

    Enacted in 1974, the purpose of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 
(Section 4212), is twofold. First, Section 4212 prohibits employment 
discrimination against specified categories of veterans by Federal 
government contractors and subcontractors. Second, it requires each 
covered Federal government contractor and subcontractor to take 
affirmative action to employ and advance in employment these veterans.
    The nondiscrimination requirements and general affirmative action 
requirements of Section 4212 apply to all covered contractors. See 41 
CFR 60-250.5, 60-300.5. The requirement to prepare and maintain an 
affirmative action program, the specific obligations of which are 
detailed at 41 CFR 60-250.44 and 60-300.44, apply to those contractors 
that meet the contract amount threshold and have 50 or more employees. 
In the Section 4212 context, with the awarding of a Federal contract 
comes a number of responsibilities, including compliance with the 
Section 4212 anti-discrimination and anti-retaliation provisions, 
meaningful and effective efforts to recruit and employ veterans 
protected under Section 4212, creation and enforcement of personnel 
policies that support its affirmative action obligations, maintenance 
of accurate records documenting its affirmative action efforts, and 
providing OFCCP access to these records upon request. Failure to abide 
by these responsibilities may result in various sanctions, from 
withholding progress payments up to and including termination of 
contracts and debarment from receiving future contracts.
    The framework articulating a contractor's responsibilities with 
respect to affirmative action, recruitment, and placement has remained 
unchanged since the Section 4212 implementing rules were first 
published in 1976. Meanwhile, increasing numbers of veterans are 
returning from tours of duty in Iraq, Afghanistan, and other places 
around the world, and many are faced with substantial obstacles in 
finding employment upon leaving the service. A March 2010 report from 
the Bureau of Labor Statistics found that the 2009 annual average 
unemployment rate for veterans 18 to 24 years old was 21.1%, compared 
with 16.6% for non-veterans in that age group. The unemployment rate 
for veterans 25 to 34 years old was 11.1%, compared with 9.8% for non-
veterans in that age group. Addressing the barriers our veterans face 
in returning to civilian life, particularly with regard to employment, 
is the focus of a number of Federal efforts, such as the Work 
Opportunity Tax Credit established for employers who hire unemployed 
disabled veterans as part of the American Recovery and Reinvestment Act 
signed into law by President Obama in February 2009. Strengthening the 
implementing regulations of Section 4212, whose stated purpose is ``to 
require Government contractors to take affirmative action to employ and 
advance in employment qualified covered veterans,'' will be another 
important means by which the government can address the issue of 
veterans' employment.
    Prior to issuing this NPRM, OFCCP conducted multiple town hall 
meetings, webinars, and listening sessions with individuals from the 
contractor community, state employment services, veterans' 
organizations, and other interested parties to understand those 
features of Section 4212's regulations that work well, those that can 
be improved, and possible new requirements that could help to 
effectuate the overall goal of increasing the employment opportunities 
for qualified protected veterans with Federal contractors.
    Accordingly, this NPRM proposes several major changes to parts 60-
250 and 60-300. The VEVRAA regulations found at 41 CFR part 60-250 
generally apply to Government contracts of $25,000 or more entered into 
before December 1, 2003. The threshold amount for coverage is a single 
contract of $25,000 or more; contracts are not aggregated to reach the 
coverage

[[Page 23359]]

threshold. If a Federal contractor received a government contract of at 
least $50,000 prior to December 1, 2003, an AAP must be developed in 
accordance with the 41 CFR part 60-250 VEVRAA regulations. As explained 
below, some contracts that were entered into before December 1, 2003 
will be subject to the regulations found at 41 CFR part 60-300.
    The regulations found at 41 CFR part 60-300 apply to Government 
contracts entered into on or after December 1, 2003. The threshold 
amount for coverage and AAP threshold coverage is a single contract of 
$100,000 or more, entered into on or after December 1, 2003; contracts 
are not aggregated to reach the coverage threshold. The regulations 
found at 41 CFR part 60-300 also apply to modifications of otherwise 
covered Government contracts made on or after December 1, 2003. 
Consequently, a contract that was entered into before December 1, 2003, 
will be subject only to the part 60-300 regulations if it is modified 
on or after December 1, 2003 and meets the contract dollar threshold of 
$100,000 or more.
    The detailed Section-by-Section Analysis below identifies and 
discusses all proposed changes in each section. Due to the extensive 
proposed revisions to the Section 4212 regulations, part 60-300 and the 
alternate part 60-250 (in the event part 60-250 is not rescinded, as 
discussed in the Summary section above and detailed in the part 60-250 
Section-by-Section Analysis below) will be republished in their 
entirety in this NPRM for ease of reference. However, the Department is 
only accepting comments on the proposed revisions of the regulations 
detailed herein.

Section-by-Section Analysis

41 CFR Part 60-250

    OFCCP is proposing two alternative approaches to part 60-250.
    The first approach is to rescind part 60-250 in its entirety. As 
stated above, part 60-250 only covers those contracts of $25,000 or 
more entered into prior to December 1, 2003--over seven years before 
the publication of this NPRM--that have been unmodified since that 
time, or have been modified while maintaining a total contract value 
between $25,000 and $100,000. Federal Acquisition Regulation 17.204 
states that, in general, government contract duration should not exceed 
five (5) years. Further, all contracts under $100,000 are subject to 
the simplified acquisition threshold and cannot be renewed. Thus, 
unless special excepted contracts exist, contracts covered exclusively 
by part 60-250 would have expired by December 1, 2008.
    It is for these reasons that we propose rescission of part 60-250. 
However, to ensure that we do not inadvertently deprive protected 
veterans of their Section 4212 rights, we seek comment from the public 
as to whether any contracts that are covered by part 60-250 still 
exist.
    In the event that contracts are discovered that do fall under part 
60-250's coverage, we will not seek to rescind part 60-250; rather, we 
propose a second approach: A revised part 60-250 that mirrors the 
changes that we have proposed to part 60-300. A Section-by-Section 
Analysis of this alternative follows below.

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-250.1 Purpose, Applicability and Construction

    Paragraph (a) of the current rule sets forth the scope of Section 
4212 and the purpose of its implementing regulations. We propose a few 
minor changes to this section. First, we propose deleting the reference 
to the ``Vietnam Era Veterans' Readjustment Assistance Act of 1974'' or 
``VEVRAA,'' and replacing it, in this section and throughout the 
regulation, with ``Section 4212.'' Referring to the operative law as 
``VEVRAA'' is not entirely accurate, as Section 4212, where VEVRAA was 
initially codified, has been amended several times since VEVRAA was 
passed--most recently by the Jobs for Veterans Act of 2002 (JVA), which 
amended the categories of protected veterans and the dollar amount for 
contract coverage that subsequently led to the promulgation of the 
regulations found at part 60-300. Referring to the law as ``Section 
4212'' clarifies that we are referring to the law as amended. This is 
more accurate than ``VEVRAA'' and should alleviate any further 
confusion.
    Second, paragraph (a) discusses the contractor's affirmative action 
obligations, but does not discuss another primary element of the 
regulations: The prohibition of discrimination against veterans 
protected under Section 4212. Accordingly, the proposed regulation adds 
language to the first sentence of paragraph (a) to include this 
important element.
    Additionally, the proposed rule makes two minor language changes in 
order to comport with some of the newly proposed definitions in Sec.  
60-250.2. First, the term ``other protected veterans'' is amended to 
read ``active duty wartime or campaign badge veterans,'' for the 
reasons detailed in the Section-by-Section Analysis of Sec.  60-250.2. 
Second, all references to ``covered veterans'' is amended to read 
``protected veterans,'' due to the inclusion of a definition for 
``protected veteran'' in the proposed Sec.  60-250.2.

Section 60-250.2 Definitions

    The proposed rule incorporates the vast majority of the existing 
definitions contained in existing Sec.  60-250.2 without change. 
However, OFCCP proposes some changes to the substance and structure of 
this section, as set forth below.
    With regard to the structure of this section, the current rule 
lists the definitions in order of subject matter. However, for those 
who are unfamiliar with the regulations, this organizational structure 
makes it difficult to locate specific terms within this section. The 
proposed rule reorders the defined terms in alphabetical order, and 
then assigns each term a lettered subparagraph heading. This modified 
structure is proposed for ease of reference, and to facilitate citation 
to specific definitions. However, because of this reordering, the 
citation to specific terms may be different in the proposed rule than 
it is currently. For instance, the term ``contract,'' which is Sec.  
60-250.2(h) in the current regulations, is Sec.  60-250.2(d) in the 
proposed regulation.
    With regard to substantive changes, the proposed rule first 
clarifies the definitions pertaining to the classifications of veterans 
who are protected under part 60-250. The classifications of protected 
veterans in part 60-250 are those described in Section 4212 prior to 
the enactment of the JVA and are as follows: (1) Special disabled 
veterans; (2) veterans of the Vietnam era; (3) veterans who served on 
active duty in the Armed Forces during a war or in a campaign or 
expedition for which a campaign badge has been authorized; and (4) 
recently separated veterans. Currently, Sec.  60-250.2 includes 
specific definitions for ``special disabled veterans,'' ``veterans of 
the Vietnam era,'' and ``recently separated veterans,'' See 41 CFR 60-
250.2(n), (p), (r). It does not contain a specific definition for 
``veterans who served on active duty in the Armed Forces during a war 
or in a campaign or expedition for which a campaign badge has been 
authorized.'' Instead, this classification is included within the 
current ``other protected veteran'' definition. See 41 CFR 60-250.2(q). 
This anomaly has caused significant confusion, as many individuals who 
are unfamiliar with the regulations believe that the ``other

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protected veteran'' category is a ``catch-all'' that includes all 
veterans. To address this issue, the proposed rule replaces the ``other 
protected veteran'' definition that is contained in the current 
regulation with the more precise classification language ``active duty 
wartime or campaign badge veteran'' that appears in the statute. This 
replacement will not change the scope of coverage. Instead, individuals 
currently covered under the ``other protected veteran'' classification 
as defined in the current rule will still be covered, but will fall 
under the more accurate ``active duty wartime or campaign badge 
veteran'' classification. It should be noted that this proposed rule 
does not revise the VETS-100 form, which is administered by the 
Department's Veterans' Employment and Training Service (VETS) and 
requires the contractor to tabulate the number of employees and new 
hires in each of the component categories of protected veterans under 
Section 4212. The VETS-100 form currently maintains the use of ``other 
protected veteran'' classification. After the final rule pertaining to 
these regulations is published, OFCCP will work with VETS to conform 
the VETS-100 forms to the new Section 4212 regulations. DOL will 
provide the public with an opportunity to comment on these changes, 
which will not become effective until approved by the Office of 
Management and Budget in accordance with the Paperwork Reduction Act of 
1995.
    The current rule also lacks a clear, overarching definition of 
``protected veteran,'' under part 60-250. Although it discusses the 
responsibilities of a contractor to all categories of protected 
veterans collectively, it also enumerates each classification of 
protected veteran several times throughout the regulation. Accordingly, 
the proposed rule includes a new definition of ``protected veteran,'' 
which includes all four classifications of protected veterans 
separately identified and defined in 60-250.2. This new term would 
replace the phrase ``special disabled veteran(s), veterans of the 
Vietnam era, recently separated veteran(s), or other protected 
veteran(s)'' used throughout the current rule to refer to these 
protected veterans in the aggregate. The individual categories of 
protected veterans continue to be separately identified in the first 
paragraph of the equal opportunity clause in Sec.  60-250.5 to permit 
the identification of protected veterans in the context of the contract 
(see Section-by-Section Analysis of Sec.  60-250.5, infra, for further 
explanation).
    The proposed rule also replaces the term ``Deputy Assistant 
Secretary,'' found currently at Sec.  60-250.2(d), with ``Director.'' 
The current Sec.  60-250.2(d) defines ``Deputy Assistant Secretary'' as 
``the Deputy Assistant Secretary for Federal Contract Compliance of the 
United States Department of Labor, or his or her designee.'' Following 
the elimination of the Employment Standards Administration in November 
2009, the head of OFCCP now has the title of Director. Accordingly, the 
proposed rule reflects this change, which will be made throughout part 
60-250.
    The proposed rule also adds a definition of employment service 
delivery system, defined in current Sec.  60-300.2(y). Because the term 
``employment service delivery system'' is mentioned in part 60-250, for 
example, in paragraph 2 of the equal opportunity clause found in Sec.  
60-250.5(a), we have added the definition for clarity.
    The proposed rule also adds a definition of ``linkage agreement,'' 
now described in the OFCCP Federal Contract Compliance Manual. We 
propose adding a definition of ``linkage agreement'' to the regulations 
for clarity. The proposed regulation defines ``linkage agreement'' to 
mean an agreement between the contractor and appropriate recruitment 
and/or training sources. A linkage agreement is to be used by the 
contractor as a source of potential applicants to the covered groups in 
which the contractor is interested. The contractor's representative 
that signs the linkage agreement should be the company official 
responsible for the contractor's affirmative action program and/or has 
hiring authority.

Section 60-250.3 [Reserved]

Section 60-250.4 Coverage and Waivers

    The proposed regulation replaces the term ``Deputy Assistant 
Secretary,'' found in paragraphs (b)(1), (b)(2), and (b)(3) of this 
section, with the term ``Director,'' for the reasons set forth in the 
discussion of Sec.  60-250.2.

Section 60-250.5 Equal Opportunity Clause

    Paragraph (a) contains the equal opportunity (EO) clause that must 
be included in all covered Government contracts and subcontracts. The 
proposed regulation includes numerous substantive changes.
    First, the proposed regulation adds additional language to 
subparagraph 2 of the EO clause in this section clarifying the 
contractor's responsibility to ``list'' jobs in the context of 
mandatory listing requirements. The mandatory job listing requirement 
discussed in paragraphs 2 and 3 of the EO clause mandates that the 
contractor list all employment openings for the duration of the 
contract with an ``appropriate employment service delivery system,'' 
(hereinafter ``employment service''). This listing not only provides a 
source for veterans to access job listings, but also allows the 
employment service to provide priority referrals of veterans for the 
Federal contractor jobs listed with the employment service. Following 
the publication of the most recent revisions to part 60-250 
regulations, questions were raised as to the manner in which a 
contractor must provide information to an employment service in order 
to satisfy the requirement. There have been many instances in which a 
contractor provided job listings to an employment service in a manner 
or format that was unusable to that employment service. In order to 
satisfy the listing requirement, the contractor must provide job 
vacancy information to the appropriate employment service in the manner 
that the employment service requires in order to include the job in 
their database so that they may provide priority referral of veterans. 
OFCCP has long interpreted the listing responsibilities of a contractor 
in this manner. This change clarifies OFCCP's policy.
    The proposed regulation also adds a sentence to the end of 
paragraph 2 clarifying that, for any contractor who utilizes a 
privately-run job service or exchange to comply with its mandatory 
listing obligation, the information must be provided to the appropriate 
employment service in the manner that the employment service requires. 
This clarification is proposed for two reasons. First, contractors' use 
of private job listing services has increased following the elimination 
of the Department's America's Job Bank listing service. Second, we have 
received feedback from officials in state employment services that some 
contractors provide job listing information to these private job 
listing services assuming that they have then fulfilled their listing 
obligations, but that the private job listing services do not always 
provide the information in the requisite manner in order to list the 
job opening in its database and provide priority referral of protected 
veterans.
    The proposed regulations also add further detail to paragraph 4 of 
the EO clause with respect to the specific information the contractor 
must provide to state employment services in each state where the 
contractor has establishments. The current regulations require that the 
contractor provide the appropriate state employment service

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with the name and location of each of the contractor's hiring 
locations. The proposed regulations require that the contractor provide 
the state employment service with the following additional information: 
(1) Its status as a Federal contractor; (2) the contact information for 
the contractor hiring official at each location in the state; and (3) 
its request for priority referrals of protected veterans for job 
openings at all its locations within the state. This information shall 
be updated on an annual basis. These three additional items are 
proposed in light of feedback received from state employment services 
that there is no centralized list of Federal contractors that they can 
consult in order to determine if a listing employer is a Federal 
contractor. If the Federal contractor does not specifically identify 
itself as such to the state employment service and further identify the 
hiring official, the state employment service often will not know if it 
should be providing priority referrals of protected veterans as 
required by Sec.  60-250.84 or who to contact. Requiring the Federal 
contractor to provide this additional information will facilitate the 
priority referral process. The proposed regulation also adds a sentence 
clarifying that, if the contractor uses any outside job search 
companies (such as a temporary employment agency) to assist in its 
hiring, the contractor must also provide the state employment service 
with the contact information for these outside job search companies. 
Due to the widespread use of these outside job search companies, this 
proposed language is included to ensure that the state employment 
service has the ability to contact all individuals responsible for a 
contractor's hiring in order to effectively carry out its obligations 
under Sec.  60-250.84. Finally, the proposed regulation replaces the 
terms ``state employment security agency,'' ``state agency,'' and 
``workforce agency'' found in a few instances in this paragraph, with 
the term ``employment service delivery system.'' The terms are 
interchangeable as used in this paragraph, and as we propose to add 
``employment service delivery system'' to the definitions in Sec.  60-
250.2, we use it instead.
    The proposed regulation adds a new paragraph 5 to the EO clause 
which requires the contractor to maintain records, on an annual basis, 
of the total number of referrals it receives from state employment 
services, the number of priority referrals of protected veterans it 
receives, and the ratio of protected veteran referrals to total 
referrals. This is one of a few new data collection requirements set 
forth in this NPRM that are proposed in order to give the contractor 
(as well as OFCCP, in the course of compliance evaluations) a 
quantifiable measure of the availability of protected veterans in the 
workforce. The contractor would be required to maintain these records 
on the number of referrals for five (5) years. We propose a five year 
record retention requirement for multiple reasons. First, because the 
proposed rule anticipates that the contractor will use the referral 
data in setting annual hiring benchmarks (see Section-by-Section 
discussion in 250.45, infra) we wanted to ensure that the contractor 
has sufficient historical data on the number of referrals it has 
received in years past to meaningfully inform the benchmarks it sets 
going forward. Further, because the proposed rule anticipates that the 
contractor will review its outreach efforts and adjust them to maximize 
recruitment of protected veterans (see Section-by-Section discussion in 
250.44(f)(3), infra), we wanted to ensure that the contractor has 
sufficient historical data to recognize meaningful trends in 
recruitment and, subsequently, to identify effective recruitment 
efforts that corresponded with time periods of increased recruitment of 
protected veterans. If the contractor had fewer years of referral data 
on hand, it is less likely that the data would provide meaningful 
assistance to the contractor in these respects. We solicit public 
comment on the burden and practical utility of this requirement.
    In paragraph 10 of the EO clause (currently paragraph 9; renumbered 
due to the newly proposed paragraph 5, above), we propose two 
revisions. The third sentence of this paragraph is revised to clarify 
the contractor's duty to provide notices of employee rights and 
contractor obligations in a manner that is accessible and 
understandable to persons with disabilities. It also revises the 
parenthetical at the end of the sentence, replacing the outdated 
suggestion of ``hav[ing] the notice read to a visually disabled 
individual'' as an accommodation with the suggestion to provide 
Braille, large print, or other versions that allow persons with 
disabilities to read the notice themselves. The proposed regulations 
would also add the following sentences to the end of proposed paragraph 
10 (current paragraph 9) of the EO clause: ``With respect to employees 
who do not work at a physical location of the contractor, a contractor 
will satisfy its posting obligations by posting such notices in an 
electronic format, provided that the contractor provides computers that 
can access the electronic posting to such employees, or the contractor 
has actual knowledge that such employees are otherwise able to access 
the electronically posted notices. Electronic notices for employees 
must be posted in a conspicuous location and format on the company's 
intranet or sent by electronic mail to employees. An electronic posting 
must be used by the contractor to notify job applicants of their rights 
if the contractor utilizes an electronic application process. Such 
electronic applicant notice must be conspicuously stored with, or as 
part of, the electronic application.'' The addition of these sentences 
is in response to the increased use of telecommuting and other work 
arrangements that do not include a physical office setting, as well as 
Internet-based application processes in which applicants never enter a 
contractor's physical office. These revisions therefore would permit 
equivalent access to the required notices for these employees and 
applicants.
    For paragraph 11, which refers to the contractor's obligation to 
notify labor organizations or other worker representatives about its 
obligations under Section 4212, we propose adding language clarifying 
that these obligations include non-discrimination, in addition to 
affirmative action. The current paragraph 11 does not specifically 
mention the contractor's non-discrimination obligations.
    The proposed regulations add a new paragraph 13 to the EO clause 
which would require the contractor to state and thereby affirm in 
solicitations and advertisements that it is an equal employment 
opportunity employer of veterans protected under Section 4212. A 
comparable clause exists in the equal opportunity clause of the 
Executive Order 11246 regulations, see 41 CFR 60-1.4(a)(2), describing 
the protected classes under that Order. This proposed addition ensures 
consistency between the regulations and aids in communicating the 
contractor's EEO responsibilities to job seekers.
    The proposed regulations amend paragraphs (d) and (e) of this 
section to require that the entire equal opportunity clause be included 
verbatim in Federal contracts. This is to ensure that the contractor 
and subcontractor read and understand the language in this clause. 
Feedback from town hall meetings and webinars conducted by OFCCP prior 
to the publication of this proposed rule indicated that some 
contractors, and especially subcontractors, are not aware of their EO 
Clause responsibilities. In the case of subcontractors, they often rely 
on the prime contractors to inform them of their nondiscrimination and

[[Page 23362]]

affirmative action program obligations. If the EO Clause is not written 
in full, subcontractors are disadvantaged and often unaware of their 
statutory obligations until audited by OFCCP. Particularly given the 
emphasis the administration and Congress have placed on veterans' 
employment issues, we believe it is important to take whatever steps 
will inform contractors and subcontractors of the obligations under the 
EO Clause. OFCCP solicits public comment on this proposal and any other 
steps that would increase the contractor community's awareness of its 
obligations.
    The proposed regulation also replaces the term ``Deputy Assistant 
Secretary,'' found in paragraph (f) of this section and in paragraphs 9 
and 11 of the EO clause, with the term ``Director,'' for the reasons 
set forth in the discussion of Sec.  60-250.2. It also replaces the 
phrase ``special disabled veteran(s), veteran(s) of the Vietnam era, 
recently separated veteran(s), or other protected veteran(s)'' found in 
the second sentence of Paragraph 1 and in Paragraph 9 of the EO clause, 
with the term ``protected veteran,'' for the reasons set forth in the 
discussion of Sec.  60-250.2. This phrase remains in the first sentence 
of Paragraph 1 (with ``active duty wartime or campaign badge veteran'' 
replacing ``other protected veteran,'' as discussed in Sec.  60-250.2, 
supra) of the EO clause so it is clear to those reading the clause 
independently from the rest of the regulation precisely which 
classifications of veterans are protected by this part of the Section 
4212 regulations. Additionally, to ensure that the contractor is aware 
of the appropriate definitions, we propose adding a footnote to the 
title of the EO Clause stating explicitly that the definitions set 
forth in 41 CFR 60-250.2 apply to the EO Clause and are incorporated by 
reference. Finally, all references to ``VEVRAA'' are replaced with the 
term ``Section 4212,'' for the reasons set forth in the discussion of 
Sec.  60-250.1.

Subpart B--Discrimination Prohibited

Section 60-250.21 Prohibitions

    This section of the rule defines and addresses prohibited 
discriminatory conduct under Section 4212. The proposed rule includes 
an additional clause at the end of paragraph (f)(3), qualifying that an 
individual who rejects a reasonable accommodation made by the 
contractor may still be considered a qualified disabled veteran if the 
individual subsequently provides and/or pays for a reasonable 
accommodation. For instance, if a veteran knows that a certain piece of 
equipment that he or she already owns will allow him or her to perform 
the functions of the job, and that equipment would represent an undue 
burden for the contractor to provide, the veteran would be able to 
provide his or her own equipment and still be considered a qualified 
disabled veteran. We propose inserting this language to ensure 
consistency with the requirement in paragraph 4 of Appendix A to the 
proposed rule, which requires that individuals be allowed to pay for or 
provide their own accommodation if providing the accommodation for the 
employee would represent an undue burden to the contractor.
    The proposed revisions also include minor language changes, 
replacing the phrase ``special disabled veteran(s), veteran(s) of the 
Vietnam era, recently separated veteran(s), or other protected 
veteran(s)'' found in paragraphs (a), (b), (c)(1), (d)(1), (e), (g)(1), 
and (i) with the term ``protected veteran,'' for the reasons set forth 
in the discussion of Sec.  60-250.2, above.

Section 60-250.22 Direct Threat Defense

    The proposed revisions change ``Sec.  60-250.2(w)'' in the 
parenthetical at the end of this section to ``Sec.  60-250.2(f),'' in 
light of restructuring the Definitions section in alphabetical order, 
as discussed in Sec.  60-250.2, above.

Section 60-250.24 Drugs and alcohol

    We propose a correction to paragraph (b)(3) of this section, to 
refer to Sec.  60-250.23(d)(2) instead of (c).

Subpart C--Affirmative Action Program

Section 60-250.40 Applicability of the Affirmative Action Program 
Requirement

    This section sets forth which contractors are required to maintain 
an affirmative action program, and the general timing requirements for 
its creation and submission to OFCCP. We propose a minor clarification 
to paragraph (c) of this section, specifying that the affirmative 
action program shall be reviewed and updated annually ``by the official 
designated by the contractor pursuant to Sec.  60-250.44(i).'' While 
this is the intent of the existing language, the proposal clarifies 
this intention d ensures that company officials who are knowledgeable 
of the contractor's affirmative action activities and obligations are 
reviewing the program.

Section 60-250.41 Availability of Affirmative Action Program

    This section sets forth the manner by which the contractor must 
make its affirmative action programs available to employees for 
inspection, which includes that the location and hours during which the 
program may be obtained. The proposed regulation adds a sentence at the 
end of this section requiring that, in instances where the contractor 
has employees who do not work at the contractor's physical 
establishment, the contractor shall inform these employees about the 
availability of the affirmative action program by means other than a 
posting at its establishment. This addition is proposed in light of the 
increased use of telecommuting and other flexible workplace 
arrangements.

Section 60-250.42 Invitation to Self-identify

    The proposed revisions of this section make significant, 
substantive changes to the contractor's responsibilities and the 
process through which applicants are invited to self-identify as a 
veteran protected under the part 60-250 regulations, particularly those 
set forth in paragraphs (a) and (b). As described more fully below, 
these changes are proposed in order to collect enhanced data pertaining 
to protected veterans, which will allow the contractor and OFCCP to 
identify and monitor the contractor's employment practices with respect 
to protected veterans.
    The current regulation requires the contractor to invite 
applicants, who are special disabled veterans as defined in 60-250.2, 
to self-identify only after making an offer of employment, subject to 
two exceptions. See Sec.  60-250.42(a). For all other veterans 
protected by part 60-250, the current regulation requires the 
contractor to invite such applicants to self-identify ``before they 
begin [their] employment duties.'' See Sec.  60-250.42(b).
    The two exceptions to the prohibition on inviting special disabled 
veterans to self-identify pre-offer contained in 41 CFR 250.42(a) are 
not proposed to change. The exceptions permit a contractor to invite 
special disabled veterans to self-identify prior to making a job offer 
when: (1) The invitation is made while the contractor actually is 
undertaking affirmative action for special disabled veterans at the 
pre-offer stage; or (2) the invitation is made pursuant to a Federal, 
state or local law requiring affirmative action for special disabled 
veterans. These two exceptions are identical to the exceptions to the 
prohibition on pre-offer disability-

[[Page 23363]]

related inquiries contained in the implementing regulations for Section 
503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 
(Section 503). See 41 CFR 60-741.42. Consequently, under existing 
Section 4212 regulations, the contractor is permitted, although not 
required, to create employment programs targeting special disabled 
veterans and inviting applicants to identify whether they are eligible 
for the program pre-offer. OFCCP is not proposing a change in this 
provision.
    The proposed change requires the contractor to invite all 
applicants to self-identify as a ``protected veteran'' prior to the 
offer of employment. This proposed change would invite applicants to 
self-identify as a ``protected veteran'' at the pre-offer stage; it 
would not seek the specific protected classification of protected 
veteran (special disabled veteran, veteran of the Vietnam era, recently 
separated veteran, or active duty wartime or campaign badge veteran). 
The pre-offer invitation would not require protected veteran applicants 
to disclose their status as a protected veteran if they chose not to 
(see the proposed Sample Invitation to Self-Identify in Appendix B, 
infra). This new pre-offer self-identification step also would include 
the requirement, currently stated in paragraph (e) of this section, 
that the contractor maintain the pre-offer self-identification data and 
supply it to OFCCP upon request. Incorporating self-identification into 
the application process would allow the contractor, and subsequently 
OFCCP, to collect valuable, targeted data on the number of protected 
veterans who apply for Federal contractor positions. This data would 
enable the contractor and OFCCP to measure the effectiveness of the 
contractor's recruitment and affirmative action efforts over time. 
Moreover, the contractor and OFCCP will be better equipped to improve 
and refine successful and effective recruiting mechanisms, thereby 
increasing the number of applications from protected veterans. 
Additionally, this data will enable OFCCP to identify and promote 
successful recruitment and affirmative efforts taken by the contractor 
community.
    Through the various outreach efforts to stakeholders OFCCP has 
conducted in advance of this NPRM, an issue has been raised regarding 
the implementing regulations of Title I of the ADA and Section 503, 
which limit the extent to which employers may inquire about 
disabilities prior to an offer of employment. See 29 CFR 1630.13, 
1630.14; 41 CFR 60-741.42. The concern is that requiring the contractor 
to invite applicants to self-identify as a protected veteran would 
violate the general prohibition against pre-offer disability-related 
inquiries because some protected veterans will be special disabled 
veterans. This concern is misplaced, as the ADA and Section 503 
regulations permit the contractor to conduct a pre-offer inquiry into 
disability status if it is `made pursuant to a Federal, state or local 
law requiring affirmative action for individuals with disabilities,' 
such as Section 4212 or Section 503. Id.
    However, while it would be legally permissible to do so, OFCCP is 
not proposing that the pre-offer self-identification identify the 
specific category of protected veteran for three primary reasons. 
First, given that the overall population of protected veterans is 
already relatively small, dividing the pool of protected veterans into 
smaller component classifications would tend to reduce the ability of 
the contractor to engage in meaningful data analysis of applicants, 
such as that proposed in Sec.  60-250.44(h) and (k). Second, a 
protected veteran may fall into several protected categories, which 
could create unnecessary complexity to data analysis. For example, the 
same individual could be a protected veteran because he or she is a 
special disabled veteran and a veteran of the Vietnam era. Finally, at 
the pre-offer stage under the proposed rule the contractor's 
obligations would be the same with respect to each category of 
protected veteran, thus there is no apparent benefit to knowing the 
specific category of protected veteran to which an applicant belongs.
    In addition to the pre-employment self-identification provisions in 
Sec.  60-250.42(a) of the proposed rule, Sec.  60-250.42(b) of the 
proposed rule also requires the contractor to invite individuals, after 
the offer of employment is extended, to self-identify as a member of 
one or more of the four classifications of protected veterans under 
part 60-250. Thus, post-offer identification will enable the contractor 
to capture refined data pertaining to each classification of protected 
veterans, as set forth in the VETS-100 form, which the contractor is 
required to maintain and submit. As is currently the case, the post-
offer self-identification as a special disabled veteran would not 
require applicants to disclose the specific nature of their disability.
    We propose to revise paragraph (c) of this section by deleting the 
second sentence of the parenthetical at the end of the paragraph. This 
sentence described the format of and rationale behind the current 
Appendix B, which has been substantially amended in light of the new 
self-identification procedures proposed herein. For the same reasons, 
we propose revising paragraph (d) of this section to reflect the newly 
proposed self-identification process in which applicants will only 
identify themselves as special disabled veterans specifically after an 
offer of employment is made. Further, we propose revising paragraph (d) 
to require, rather than suggest, that the contractor seek the advice of 
the applicant regarding accommodation. Requiring this of the contractor 
will help initiate a robust interactive and collaborative process 
between the contractor and the employee or applicant to identify 
effective accommodations that will facilitate a special disabled 
veteran's ability to perform the job. While the purpose of this 
requirement is to promote agreement between the contractor and employee 
or applicant regarding accommodations to be used, this proposed change 
would not require that, in the event that multiple reasonable 
accommodations exist, the contractor must utilize the reasonable 
accommodation preferred by the employee or applicant.
    We also propose replacing the term ``appropriate accommodation'' in 
paragraph (d) with ``reasonable accommodation.'' We have always 
interpreted ``appropriate accommodation'' in this paragraph as 
substantively identical to the term ``reasonable accommodation.'' 
However, ``reasonable accommodation'' is already defined in these 
regulations and has a more broadly used and accepted legal definition, 
we propose using it here to avoid any confusion. This language change 
does not alter the contractor's existing obligations.

Section 60-250.43 Affirmative Action Policy

    This section outlines the contractor's non-discrimination and 
affirmative action obligations under Section 4212. We propose two minor 
revisions to this section.
    First, we propose replacing the phrase ``because of status as a'' 
in this section to ``against,'' in order to clarify that the non-
discrimination requirements of Section 4212 are limited to protected 
veterans and that reverse discrimination claims may not be brought by 
individuals who do not fall under one of the categories of veterans 
protected by part 60-250. Second, we propose replacing the phrase 
``special disabled veteran(s), veteran(s) of the Vietnam era, recently 
separated veteran(s), or other protected veteran(s),'' used twice in 
this section, with the term ``protected

[[Page 23364]]

veteran,'' for the reasons set forth in the discussion of Sec.  60-
250.2.

Section 60-250.44 Required Contents of Affirmative Action Programs

    This section details the elements that the contractor's affirmative 
action programs must contain. These existing elements include: (1) An 
equal employment opportunity policy statement; (2) a comprehensive 
annual review of personnel processes; (3) a review of physical and 
mental job qualifications; (4) a statement that the contractor is 
committed to making reasonable accommodations for persons with physical 
and mental disabilities; (5) a statement that the contractor is 
committed to ensuring a harassment-free workplace for protected 
veterans; (6) external dissemination of the contractor's affirmative 
action policy, as well as outreach and recruitment efforts; (7) the 
internal dissemination of the contractor's affirmative action policy to 
all of its employees; (8) the development and maintenance of an audit 
and reporting system designed to evaluate affirmative action programs; 
and (9) training for all employees regarding the implementation of the 
affirmative action program.
    The first substantive proposed revisions to this section focus on 
the contractor's policy statement as set forth in paragraph (a). The 
proposed regulation revises the second sentence to clarify the 
contractor's duty to provide notices of employee rights and contractor 
obligations in a manner that is accessible and understandable to 
persons with disabilities. It also revises the parenthetical at the end 
of the sentence, replacing the outdated suggestion of ``hav[ing] the 
notice read to a visually disabled individual'' as an accommodation 
with the suggestion to provide Braille, large print, or other versions 
that allow persons with disabilities to read the notice themselves. The 
proposed regulation also revises the third sentence of paragraph (a) 
regarding the content of the policy statement, replacing the inclusion 
of the ``chief executive officer's attitude on the subject matter'' 
with ``chief executive officer's support for the affirmative action 
program.'' This proposed change is made to clarify the intent of 
including a statement from the contractor's CEO in the affirmative 
action policy statement, which is to signal to the contractor's 
employees that support for the affirmative action program goes to the 
very top of the contractor's organization.
    In paragraph (b), the proposed rule requires that the contractor 
must review its personnel processes on at least an annual basis to 
ensure that its obligations are being met. The current rule requires 
that the contractor review these processes ``periodically.'' This 
standard is vague and subject to confusion. Indeed, OFCCP's efforts to 
enforce this requirement in recent years have been complicated by 
contractors' various, subjective interpretations of what constitutes 
``periodic'' review. This proposal sets forth a clear, measurable, and 
uniform standard that will be easily understood by the contractor and 
more easily enforced by OFCCP.
    Further, the proposed revisions mandate certain specific steps that 
the contractor must take, at a minimum, in the review of its personnel 
processes. These specific steps are those currently set forth in 
Appendix C to the regulation. Appendix C currently suggests that the 
contractor: (1) Identify the vacancies and training programs for which 
protected veteran applicants and employees were considered; (2), 
provide a statement of reasons explaining the circumstances for 
rejecting protected veterans for vacancies and training programs and a 
description of considered accommodations; and (3) describe the nature 
and type of accommodations for special disabled veterans who were 
selected for hire, promotion, or training programs. Previously, these 
steps were recommended as an appropriate set of procedures. OFCCP's 
enforcement efforts have found that many contractors do not follow 
these recommended steps, and that the documentation contractors 
maintain of the steps that they do take are often not conducive to a 
meaningful review by the contractor or OFCCP, particularly in the event 
of employee/applicant complaints. Such a meaningful review has always 
been the goal of the requirements in paragraph (b), as it ensures that 
the contractor remains aware of and actively engages in its overall 
affirmative action obligations toward protected veterans. The proactive 
approach set forth in the current Appendix C would provide greater 
transparency between the contractor, its applicants/employees, and 
OFCCP as to the reasons for the contractor's personnel actions. 
Requiring that the contractor record the specific reasons for their 
personnel actions, and making them available to the employee or 
applicant upon request, would also aid them in clearly explaining their 
personnel actions to applicants and employees, which could subsequently 
reduce the number of complaints filed against contractors. Thus, we 
propose requiring the contractor to take the steps outlined currently 
in Appendix C (which are incorporated into paragraph (b) in the 
proposed rule), and encourage the contractor to undertake any 
additional appropriate procedures to satisfy its affirmative action 
obligations.
    The proposed paragraph (c) clarifies that all physical and mental 
job qualification standards must be reviewed and updated, as necessary, 
on an annual basis. As with paragraph (b), the current rule's 
requirement that the contractor review these standards ``periodically'' 
is vague and subject to confusion. OFCCP has concluded that contractors 
inconsistently interpreted what constitutes ``periodic'' review. The 
proposed change provides a clear, measurable, and uniform standard.
    The proposed paragraph (c)(1) adds language requiring the 
contractor to document the results of its annual review of physical and 
mental job qualification standards. The regulation has long required 
this review to ensure that job qualification standards which tend to 
screen out disabled veterans are job-related and consistent with 
business necessity. The proposed change would merely require that the 
contractor document the review it has already been required to perform. 
It is anticipated that this documentation would list the physical and 
mental job qualifications for the job openings during a given AAP 
year--which should already be available from the contractor's job 
postings--and provide an explanation as to why each requirement is 
related to the job to which it corresponds. Documenting this review 
will ensure that the contractor critically analyzes its job 
requirements and proactively eliminates those that are not job-related. 
It will also allow OFCCP to conduct audits and investigations in a more 
thorough and efficient manner.
    Paragraph (c)(3) currently provides that, as a defense to a claim 
by an individual that certain mental or physical qualifications are not 
job-related and consistent with business necessity, the contractor may 
assert that the individual poses a ``direct threat'' to the health or 
safety of the individual or others in the workplace. The definition of 
``direct threat'' in these regulations spells out the criteria that the 
contractor must consider in determining whether a ``direct threat'' 
exists. The proposed paragraph (c)(3) would require the contractor to 
contemporaneously create a written statement of reasons supporting its 
belief that a direct threat exists, tracking the criteria set forth in 
the ``direct threat'' definition in these regulations, and maintain the 
written statement as set forth in the recordkeeping requirement in 
Sec.  60-250.80. Once again, this is to ensure that

[[Page 23365]]

the contractor's ``direct threat'' analysis--which is already required 
under these regulations, as well as regulations to Section 503 of the 
Rehabilitation Act and the Americans with Disabilities Act--is well-
reasoned and available for review by OFCCP.
    Finally, for both the proposed documenting requirements in 
paragraphs (c)(1) and (c)(3), the proposed regulation would require 
that the contractor treat the created documents as confidential medical 
records in accordance with Sec.  60-250.23(d).
    Perhaps the most significant substantive changes in the proposed 
rule address the scope of the contractor's recruitment efforts and the 
dissemination of its affirmative action policies described in 
paragraphs (f) and (g) of this section. While these two paragraphs 
generally require that the contractor engage in recruitment and 
disseminate its policies, the current rule recommends rather than 
requires the specific methods for carrying out these obligations.
    The current paragraph (f) suggests a number of outreach and 
recruitment efforts that the contractor can undertake in order to 
increase the employment opportunities for protected veterans. See 41 
CFR 60-250.44(f)(1). The proposed paragraph (f) requires that the 
contractor engage in a minimum number of outreach and recruitment 
efforts as described in proposed paragraph (f)(1). The proposed 
paragraph (f) also includes a list of additional outreach and 
recruitment efforts that are suggested (proposed paragraph (f)(2)), a 
new requirement that the contractor conduct self-assessments of their 
outreach and recruitment efforts (proposed paragraph (f)(3)), and a 
clarification of the contractor's recordkeeping obligation with regard 
to its outreach and recruitment efforts (proposed paragraph (f)(4)).
    In the proposed paragraph (f)(1), the contractor would be required 
to engage in three outreach and recruitment efforts. First, the 
contractor would be required to enter into linkage agreements and 
establish ongoing relationships with the Local Veterans' Employment 
Representative in the local employment service office nearest the 
contractor's establishment. The statute already requires contractors 
and subcontractors to send their job listings to the Local Veterans' 
Employment Representative in the local or state employment service 
office for listing and priority referral of protected veterans. The 
Local Veterans' Employment Representative is an existing government 
resource provided for veterans to help them find employment.
    Second, the contractor would be required to enter into a linkage 
agreement with at least one of several other listed organizations and 
agencies for purposes of recruitment and developing training 
opportunities. The listed organizations and agencies are those that are 
listed in the current paragraph (f)(1), with one addition: The 
Department of Defense Transition Assistance Program (TAP), or any 
subsequent program that replaces TAP. This program is administered in 
part by the Department of Labor's Veterans' Employment and Training 
Service (VETS) in Family Services Offices or similar offices at 
military bases. (See http://www.dol.gov/vets/programs/tap/tap_fs.htm) 
According to the Department of Defense, there are 249 TAP offices in 
installations around the United States, and another 16 TAP offices 
located in installations abroad. The TAP was designed to ``smooth the 
transition of military personnel and family members leaving active 
duty.'' The TAP includes employment workshops with the Department of 
Labor, and offers individualized employment assistance and training. It 
is currently required for all those serving in the Marine Corps, and is 
generally encouraged and supported by the other branches of the 
military. Accordingly, it provides an excellent existing source for 
identifying qualified protected veterans. TAP is a validated multi-
government agency program that assists separating veterans in finding 
employment, from resume writing to interview techniques to dressing for 
success. OFCCP is aware, however, that not all contractors are located 
near a military base or similar facility which provides TAP; therefore, 
a contractor may select another organization or agency from the list 
that is more conducive to its recruiting efforts.
    Third, paragraph (f)(1) would also require that the contractor 
consult the Employer Resources section of the National Resource 
Directory, a partnership with an online collaboration (http://www.nationalresourcedirectory.gov/employment/job_services_and_employment_resources) among the Departments of Labor, Defense, and 
Veterans Affairs. New contractors and subcontractors often inquire 
about how they can find qualified protected veterans to comply with 
their AAP obligations. The National Resource Directory is a leading 
government Web site that provides prospective employers of veterans 
access to veterans' service organizations, existing job banks of 
veterans seeking employment, and other resources at the national, state 
and local levels. The NPRM gives contractors and subcontractors the 
flexibility to select any organization on the National Resource 
Directory for outreach and recruit purposes. Since this Web site is a 
great nationwide resource, any contractor would likely find it useful 
in fulfilling its affirmative action obligations, such as recruiting 
veterans. The contractor would be required to establish a linkage 
agreement with at least one of the many veterans' service organizations 
listed on the site (excluding organizations described in the previous 
paragraph) to facilitate referral of qualified protected veterans, as 
well as other related advice and technical assistance. We believe that 
these first two efforts that the proposed rule requires would assist 
the contractor in establishing a baseline level of contact with veteran 
and employment-related organizations, while providing the contractor 
with the flexibility to establish linkage agreements with organizations 
that are most tailored to the contractor's hiring needs. Finally, the 
proposed paragraph (f)(1) would also require that the contractor send 
written notification of company policy related to affirmative action 
efforts to its subcontractors, including subcontracting vendors and 
suppliers, in order to request appropriate action on their parts and to 
publicize the contractor's commitment to affirmative action on behalf 
of protected veterans. While the proposed regulations would not require 
that the contractor send written notification to vendors and suppliers 
who are not subcontractors as defined by these regulations, such 
disclosure remains an encouraged activity, just as it is under the 
current regulation. See 41 CFR 60-250.44(f)(6).
    We believe that the required linkage agreements we propose in 
paragraph (f)(1) will greatly facilitate the contractor's efforts to 
attract qualified protected veteran applicants. We encourage comments 
from stakeholders regarding this proposal, particularly if stakeholders 
have information on recruitment sources not included in this proposal 
that might increase employment of protected veterans.
    In paragraph (f)(2) of the proposed rule, we list a number of 
outreach and recruitment efforts that are suggested measures for 
increasing employment opportunities for protected veterans. The efforts 
listed in paragraph (f)(2) are largely identical to the efforts that 
are suggested in paragraphs (f)(2) through (f)(5) and (f)(7) through 
(f)(8) of the current rule. This includes: (1) Holding briefing 
sessions with representatives from recruiting resources; (2)

[[Page 23366]]

incorporating recruitment efforts for protected veterans at educational 
institutions; (3) considering applicants who are known protected 
veterans for all available positions when the position applied for is 
unavailable; and (4) any other positive steps the contractor believes 
are necessary to attract qualified protected veterans, including 
contacts with any local veteran-related organizations.
    Paragraph (f)(3) of the proposed rule would require the contractor, 
on an annual basis, to review the outreach and recruitment efforts it 
has undertaken over the previous twelve months and evaluate their 
effectiveness in identifying and recruiting qualified protected 
veterans, and document its review. Contractors that do not proactively 
monitor their outreach and recruitment efforts often lose opportunities 
to consider and hire qualified protected veterans for employment. This 
requirement will allow the contractor to look at its measurable 
accomplishments and reconsider unproductive methods. We believe 
requiring this on an annual basis strikes the proper balance between 
ensuring that adjustments to recruitment efforts are made on a timely 
basis if needed, while also ensuring that the contractor has enough 
data on existing recruitment efforts to be able to determine if 
adjustments need to be made.
    We recognize that the ``effectiveness'' of an outreach or 
recruitment effort is not easily defined, and may include a number of 
factors that are unique to a particular contractor establishment. 
Generally speaking, a review of the efficacy of a contractor's efforts 
should include the number of protected veteran candidates each effort 
identifies. Recognizing that other unique and intangible 
characteristics may contribute to the assessment of the 
``effectiveness'' of a given effort, the proposed regulation allows the 
contractor some flexibility in making this assessment. However, the 
proposed regulation requires that the contractor consider the numbers 
of protected veteran referrals, applicants, and hires for the current 
years and two previous years as criteria in evaluating its efforts, and 
document all other criteria that it uses to assess the effectiveness of 
its efforts, so that OFCCP compliance officers are able to understand 
clearly the rationale behind the contractor's self-assessment. The 
contractor's conclusion as to the effectiveness of its outreach must be 
reasonable as determined by OFCCP in light of these regulations. The 
primary indicator of effectiveness is whether qualified veterans have 
been hired. Further, should the contractor determine that its efforts 
were not effective, the proposed rule requires the contractor to 
identify and implement one or more of the alternative efforts listed in 
proposed paragraphs (f)(1) and (f)(2) in order to fulfill its 
obligations. The general purpose of this self-assessment is to ensure 
that the contractor think critically about its recruitment and outreach 
efforts, identify and ascertain successful recruiting efforts, and 
modify its efforts to ensure that its obligations are being met.
    Paragraph (f)(4) of the proposed rule would require that the 
contractor document its linkage agreements and the activities it 
undertakes in order to comply with paragraph (f), and retain these 
documents for a period of five (5) years. This requirement will enable 
the contractor and OFCCP to more effectively review recruitment and 
outreach efforts undertaken to ensure that the affirmative action 
obligations of paragraph (f) are satisfied.
    Paragraph (g) of this section requires that the contractor develop 
internal procedures to communicate to its employees its obligation to 
engage in affirmative action efforts. The current paragraph (g)(2) 
contains several suggested methods by which the contractor may 
accomplish this. The proposed rule would mandate the following 
practices: (1) Include its affirmative action policy in its policy 
manual; (2) inform all applicants and employees of its affirmative 
action obligations; (3) conduct meetings with executive, management, 
and supervisory personnel to explain the intent of the policy and 
responsibility for its implementation; and (4) discuss the policy in 
orientation and management training programs. In addition, if the 
contractor is party to a collective bargaining agreement, then the 
proposed rule would require the contractor to meet with union officials 
and representatives to inform them about the policy and seek their 
cooperation. Other suggested elements in the current paragraph (g)(2) 
remain in the proposed rule at newly created paragraph (g)(3) as 
suggested additional dissemination efforts the contractor can make. 
This includes suggesting that the contractor use company newspapers, 
magazines, annual reports, handbooks, or other media to publicize its 
affirmative action obligations and feature protected veterans and their 
accomplishments. See current regulation at 41 CFR 60-250.44(g)(2)(iii), 
60-250.44(g)(2)(vii); 60-250.44(g)(2)(viii).
    As for the requirement to inform all applicants and employees of 
its affirmative action obligations (item (2) in the preceding 
paragraph), the proposed regulation would require that the contractor 
hold meetings with its employees at least once per year to discuss the 
contractor's affirmative action policies and to explain contractor and 
individual employee responsibilities under these policies. These could 
be traditional in-person meetings, or meetings facilitated by 
technology such as webinars or videoconferencing. It would also require 
that the contractor describe individual employee opportunities for 
advancement in furtherance of the contractor's affirmative action plan. 
Frequent establishment-wide training on affirmative action issues will 
facilitate a greater understanding of the purpose of the affirmative 
action plan among employees. This training will also enhance the 
visibility and importance of affirmative action to the recruitment, 
hiring, and advancement of protected veterans. Finally, a newly 
proposed paragraph (g)(4) would require the contractor to document its 
activities in order to comply with paragraph (g), and retain these 
documents as records subject to the recordkeeping requirements of Sec.  
60-250.80. This will allow for a more effective review by the 
contractor and OFCCP to ensure that the affirmative action obligations 
of paragraph (g) are being met.
    Paragraph (h) of this section details the contractor's 
responsibilities in designing and implementing an audit and reporting 
system for its affirmative action program, including the specific 
computations and comparisons that are part of the audit. The proposed 
regulations add a new paragraph (h)(1)(vi) requiring the contractor to 
document the actions taken to comply with paragraphs (h)(1)(i)-(v), and 
maintain such documents as records subject to the recordkeeping 
requirements of Sec.  60-250.80. Again, this will allow for a more 
effective review by the contractor and OFCCP to ensure the affirmative 
action obligations of this paragraph are being met.
    The only substantive proposed change in paragraph (i), requires 
that the identity of the officials responsible for a contractor's 
affirmative action activities must appear on all internal and external 
communications regarding the contractor's affirmative action program. 
In the current regulation, this disclosure is only suggested. Requiring 
this disclosure will increase transparency, making it clear to 
applicants, employees, OFCCP, and other interested parties which 
individual(s) are

[[Page 23367]]

responsible for the implementation of the contractor's affirmative 
action program.
    Paragraph (j) requires that the contractor train those individuals 
who implement the personnel decisions pursuant to its affirmative 
action program. The proposed regulation specifies the topics that shall 
be included in the contractor's training: The benefits of employing 
protected veterans; appropriate sensitivity toward protected veteran 
recruits, applicants and employees; and the legal responsibilities of 
the contractor and its agents regarding protected veterans generally 
and special disabled veterans specifically, such as reasonable 
accommodation for qualified disabled veterans and the related rights 
and responsibilities of the contractor and protected veterans. Training 
on these issues will facilitate a greater understanding of the purpose 
of the affirmative action plan among decision makers for the 
contractor, and will enhance the visibility and importance of 
affirmative action to the recruitment, hiring, and advancement of 
protected veterans. The proposed regulation would also require that the 
contractor record which of its personnel receive this training, when 
they receive it, and the person(s) who administer(s) the training, and 
maintain these records, along with all written or electronic training 
materials used, in accordance with the recordkeeping requirements of 
Sec.  60-250.80. Again, this will allow for a more effective review by 
the contractor and OFCCP to ensure the affirmative action obligations 
of this paragraph are being met.
    The proposed regulation adds a new paragraph (k) requiring that the 
contractor maintain several quantitative measurements and comparisons 
regarding protected veterans who have been referred by state employment 
services, have applied for positions with the contractor, and/or have 
been hired by the contractor. The impetus behind this new section is 
that, as stated in the discussion of Sec.  60-250.44(a), no structured 
data regarding the number of protected veterans who are referred for or 
apply for jobs with Federal contractors is currently maintained. This 
absence of data makes it nearly impossible for the contractor and OFCCP 
to perform even rudimentary evaluations of the availability of 
protected veterans in the workforce, or to make any quantitative 
assessments of how effective contractor outreach and recruitment 
efforts have been in attracting protected veteran candidates. The 
proposed regulations provide for the collection of referral data (see 
Sec.  60-250.5, paragraph 5 of the EO clause), as well as applicant 
data (see Sec.  60-250.42(a)). Hiring data is already maintained by the 
contractor in its VETS-100 forms, a requirement which is carried over 
into this proposal. Accordingly, paragraph (k) requires that the 
contractor document and maintain the following information: (1) For 
referral data, the total number of referrals, the number of priority 
referrals of protected veterans, and the ``referral ratio'' of referred 
protected veterans to total referrals; (2) for applicant data, the 
total number of applicants for employment, the number of applicants who 
are known protected veterans, and the ``applicant ratio'' of protected 
veteran applicants to total applicants; (3) for hiring data, the total 
number of people hired, the number of protected veterans hired, and the 
``hiring ratio'' of protected veteran hires to total hires; and (4) the 
total number of job openings, the number of jobs that are filled, and 
the ``job fill ratio'' of job openings to job openings filled. The 
proposed regulation requires that the contractor must document these 
measurements on an annual basis, and maintain records of them for five 
(5) years. These basic measurements will provide the contractor and 
OFCCP with important information that does not currently exist. This 
will aid the contractor in evaluating and tailoring its recruitment and 
outreach efforts and in establishing hiring benchmarks as set forth in 
the discussion of the proposed Sec.  60-250.45, infra.
    Finally, the proposed regulation replaces the phrase ``special 
disabled veteran(s), veteran(s) of the Vietnam era, recently separated 
veteran(s), or other protected veteran(s),'' with the term ``protected 
veteran'' in paragraphs (a), (a)(2), (a)(3), (b), (e), (f), (f)(1), 
(f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), (g)(2)(vii), 
and (h)(1)(iv), for the reasons stated in the discussion of Sec.  60-
250.2. The proposed regulation also replaces the terms ``Vietnam Era 
Veterans' Readjustment Assistance Act of 1974'' or ``VEVRAA'' with the 
term ``Section 4212'' throughout this section, for the reasons stated 
in the discussion of Sec.  60-250.1.

Section 60-250.45 Contractor-Established Benchmarks for Hiring

    The proposed regulation would require for the first time that the 
contractor establish annual hiring benchmarks, expressed as the 
percentage of total hires who are protected veterans that the 
contractor seeks to hire in the following year. As stated in paragraph 
(a) of the proposed rule and set forth more fully below, these hiring 
benchmarks would be established by the contractor using existing data 
on veteran availability, while also allowing the contractor to take 
into account other factors unique to its establishment that would tend 
to affect the availability determination.
    While the Bureau of Labor Statistics (BLS) and Census Bureau 
(Census) do not tabulate data pertaining to the specific 
classifications of protected veterans under part 60-250, there are 
other existing data sources that are instructive. For instance, BLS 
tabulates statewide data on the number of veterans in the civilian 
labor force and the unemployment rate of veterans in the labor force, 
and national data on the number of veterans with a service-related 
disability. The Department's Veterans Employment and Training Service 
collects statewide data over a rolling, four quarter period of 
individuals who ``participated'' in the state employment services. The 
breakdown of this data includes the number of overall veterans, the 
number of overall veterans who are identified as being unemployed, and 
the number of veterans in some, although not all, of the specific 
categories of veterans protected by part 60-250.
    Accordingly, the proposed rule would require that the contractor 
consult a number of different sources of information, which will be 
made easily available to the contractor, in establishing hiring 
benchmarks. As set forth in the proposed paragraph (b), these sources 
would include: (1) The percentage of veterans in the civilian labor 
force, tabulated by BLS and which will be published on OFCCP's Web 
site; (2) the raw number of veterans who were participants in the state 
employment service in the State where the contractor's establishment is 
located, which will also be published on OFCCP's Web site; (3) the 
referral ratio, applicant ratio, and hiring ratios as expressed in the 
proposed Sec.  60-250.44(k); (4) the contractor's recent assessments of 
the effectiveness of its external outreach and recruitment efforts, as 
expressed in the proposed Sec.  60-250.44(f)(3); and (5) any other 
factors, including but not limited to the nature of the contractor's 
job openings and/or its location, which would tend to affect the 
availability of qualified protected veterans. The contractor would be 
required to consider and document each of these factors, see proposed 
paragraph (c) of this section, but would be given discretion to weigh 
the various factors in a manner that is reasonable in light of the 
contractor's unique circumstances. We believe that this proposal 
creates a practical and workable mechanism for establishing

[[Page 23368]]

benchmarks that will allow the contractor to measure its success in 
recruiting and employing protected veterans. However, we seek input 
from stakeholders on this proposal and any additional measures that 
would make these benchmarks more meaningful, as well as any other 
measures that would otherwise increase employment opportunities for 
veterans.

Subpart D--General Enforcement and Complaint Procedures

Section 60-250.60 Compliance Evaluations

    This section details the form and scope of the compliance 
evaluations of the contractor's affirmative action programs conducted 
by OFCCP. The proposed rule contains several changes to this section.
    First, the proposal adds a sentence to paragraph (a)(1)(i) 
regarding the temporal scope of desk audits performed by OFCCP. This 
language merely clarifies OFCCP's long-standing policy that, in order 
to fully investigate and analyze the scope of potential violations, 
OFCCP may need to examine information after the date of the scheduling 
letter in order to determine, for instance, if violations are 
continuing or have been remedied. The language does not represent a 
change in policy or new contractor obligations.
    Second, the current paragraph (a)(2) relating to the off-site 
review of records incorrectly refers to the ``requirements of the 
Executive Order and its regulations;'' the proposed rule corrects this 
to read the ``requirements of Section 4212 and its regulations.''
    Third, the proposed rule contains a change to the nature of 
document production under paragraph (a)(3). This paragraph, which 
specifies a ``compliance check'' as an investigative procedure OFCCP 
can use to monitor a contractor's recordkeeping, currently states that 
the contractor may provide relevant documents either on-site or off-
site ``at the contractor's option.'' The proposed regulation eliminates 
this quoted clause and provides that OFCCP may request that the 
documents to be provided either on-site or off-site.
    Fourth, the proposed rule contains a minor change to the scope of 
``focused reviews'' as set forth in paragraph (a)(4). Focused reviews 
allow OFCCP to target one or more components of a contractor's 
organization or employment practices, rather than conducting a more 
comprehensive compliance review of an entire organization. Currently, 
the regulations provide that these focused reviews are ``on-site,'' 
meaning they must take place at the contractor's place of business. The 
increased use of electronic records that are easily accessible from 
multiple locations affords compliance officers greater flexibility in 
conducting focused reviews. Therefore, we propose to delete the word 
``on-site'' from this section, which will allow compliance officers to 
conduct reviews of relevant materials at any appropriate location.
    Fifth, the proposed rule contains a new paragraph (d) which details 
a new procedure for pre-award compliance evaluation under Section 4212. 
This proposed rule is based on the pre-award compliance procedure 
contained in the Executive Order regulations (see 41 CFR 60-1.20(d)).
    Finally, the proposed regulation replaces the phrase ``special 
disabled veteran(s), veteran(s) of the Vietnam era, recently separated 
veteran(s), or other protected veteran(s),'' with the term ``protected 
veteran'' in paragraph (a) for the reasons stated in the discussion of 
Sec.  60-250.2.

Section 60-250.61 Complaint Procedures

    This section outlines the manner in which applicants or employees 
who are protected veterans may file complaints alleging violations of 
Section 4212 or its regulations.
    The proposed rule replaces the term ``Deputy Assistant Secretary'' 
with the term ``Director'' in paragraphs (e)(1), (e)(2), and (e)(3), 
for the reasons set forth in the discussion of Sec.  60-250.2. The 
proposed regulation also replaces the term ``state employment security 
agency'' in paragraph (a) with the term ``employment service delivery 
system,'' for the reasons set forth in the discussion of Sec.  60-
250.5. Finally, the proposed regulation replaces the phrase ``special 
disabled veteran(s), veteran of the Vietnam era, recently separated 
veteran(s), or other protected veteran(s)'' with the term ``protected 
veteran'' in paragraph (b)(iii), for the reasons stated in the 
discussion of Sec.  60-250.2.

Section 60-250.64 Show Cause Notice

    This section describes the manner in which OFCCP notifies a 
contractor when it believes the contractor has violated Section 4212 or 
its regulations. The proposed rule replaces the term ``Deputy Assistant 
Secretary'' in this section with the term ``Director,'' for the reasons 
set forth in the discussion of Sec.  60-250.2.

Section 60-250.65 Enforcement Proceedings

    This section describes the procedures for formal enforcement 
proceedings against a contractor in the event OFCCP finds a violation 
of Section 4212 or its regulations that has not been corrected. The 
proposed rule replaces the term ``Deputy Assistant Secretary'' in 
paragraph (a)(2) of this section with the term ``Director,'' for the 
reasons set forth in the discussion of Sec.  60-250.2.

Section 60-250.66 Sanctions and Penalties

    This section discusses the types of sanctions and penalties that 
may be assessed against a contractor if it is found to have violated 
Section 4212 or its regulations. The proposed rule replaces the term 
``Deputy Assistant Secretary'' in paragraph (a) of this section with 
the term ``Director,'' for the reasons set forth in the discussion of 
Sec.  60-250.2.

Section 60-250.67 Notification of Agencies

    This section provides that agency heads will be notified if any 
contractors are debarred. The proposed rule replaces the term ``Deputy 
Assistant Secretary'' with the term ``Director,'' for the reasons set 
forth in the discussion of Sec.  60-250.2.

Section 60-250.68 Reinstatement of Ineligible Contractors

    This section outlines the process by which a contractor that has 
been debarred may apply for reinstatement. The proposed rule replaces 
the term ``Deputy Assistant Secretary'' in paragraphs (a) and (b) of 
this section with the term ``Director,'' for the reasons set forth in 
the discussion of Sec.  60-250.2.

Section 60-250.69 Intimidation and Interference

    This section forbids the contractor from retaliating against 
individuals who have engaged in or may engage in certain specified 
protected activities, and describes the contractor's affirmative 
obligations in preventing retaliation. The proposed rule replaces the 
term ``Deputy Assistant Secretary'' in paragraph (b) of this section 
with the term ``Director,'' for the reasons set forth in the discussion 
of Sec.  60-250.2. The proposed rule also replaces the phrase ``special 
disabled veteran(s), veterans of the Vietnam era, recently separated 
veteran(s), or other protected veteran(s),'' with the term ``protected 
veteran'' in paragraphs (a)(2) and (a)(3) for the reasons stated in the 
discussion of Sec.  60-250.2.

Subpart E--Ancillary Matters

Section 60-250.80 Recordkeeping

    This section describes the recordkeeping requirements that apply to 
the contractor under Section 4212,

[[Page 23369]]

and the consequences for the failure to preserve records in accordance 
with these requirements. The proposed regulation adds a sentence at the 
end of paragraph (a) of this section clarifying that the newly proposed 
recordkeeping requirements set forth in Sec. Sec.  250.44(f)(4) 
(linkage agreements and other outreach and recruiting efforts), 
250.44(k) (collection of referral, applicant and hire data), 250.45(c) 
(criteria and conclusions regarding contractor established hiring 
benchmarks), and Paragraph 5 of the equal opportunity clause in Sec.  
60-250.5(a) (referral data) must be maintained for five (5) years, for 
the reasons set forth in the discussion of those sections, supra.

Section 60-250.81 Access to Records

    This section describes a contractor's obligations to permit access 
to OFCCP when conducting compliance evaluations and complaint 
investigations. The proposed rule adds some language clarifying the 
contractor's obligations, particularly in light of the increased use of 
electronically stored records. First, the proposed rule adds a sentence 
requiring the contractor to provide off-site access to materials if 
requested by OFCCP investigators or officials as part of an evaluation 
or investigation. This change reflects the increased use of electronic 
records from multiple locations, and accordingly gives OFCCP greater 
flexibility in conducting its evaluations and investigations. Second, 
the proposed rule requires that the contractor specify all formats 
(including specific electronic formats) in which its records are 
available, and produce records to OFCCP in the format selected by 
OFCCP. This change is proposed in light of numerous instances in which 
OFCCP has conducted extensive review and analysis of a contractor's 
records only to find subsequently that the records were available in 
more readily accessible formats. Specifying the variety of available 
formats upon request, and providing records to OFCCP in the format it 
selects, will facilitate a more efficient investigation process.

Section 60-250.83 Rulings and Interpretations

    This section establishes that rulings and interpretations of 
Section 4212 will be made by the Director of OFCCP. The proposed rule 
replaces the term ``Deputy Assistant Secretary'' with the term 
``Director,'' for the reasons set forth in the discussion of Sec.  60-
250.2.

Section 60-250.84 Responsibilities of Local Employment Service Offices

    This section outlines the responsibilities of local employment 
service offices, including the obligation to give priority referral to 
protected veterans for jobs listed by a Federal contractor. The 
proposed rule replaces the phrase ``special disabled veteran(s), 
veteran(s) of the Vietnam era, recently separated veteran(s), or other 
protected veteran(s),'' with the term ``protected veteran'' for the 
reasons stated in the discussion of Sec.  60-250.2.

Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    The proposed rule includes four changes to Appendix A which would 
mandate activities that previously were only suggested. These changes 
primarily reflect proposed revisions to Sec. Sec.  60-250.2 and 60-
250.42(d), supra, that would alter the contractor's responsibilities.
    First, in the third sentence of paragraph 2, we propose changing 
the language to reflect the change to Sec.  60-250.42(d) requiring a 
contractor to seek the advice of special disabled veterans in providing 
reasonable accommodation. Second, in the last sentence of Paragraph 4, 
the proposed rule is changed to require that special disabled veterans, 
in the event an accommodation would constitute an undue hardship for 
the contractor, be given the option of providing the accommodation or 
paying the portion of the cost that constitutes the undue hardship for 
the contractor. Third, in the fourth sentence of paragraph 5, we 
propose changing the language to require a contractor to seek the 
advice of special disabled veterans in providing reasonable 
accommodation. Finally, in the last sentence of paragraph 9, the 
proposed rule is changed to require that a contractor must consider the 
totality of the circumstances when determining what constitutes a 
``reasonable amount of time'' in the context of available vacant 
positions.
    Additionally, the proposed rule changes the reference to ``Sec.  
60-250.2(o)'' in paragraph 1 of Appendix A to ``Sec.  60-250.2(r),'' 
and changes the references to ``Sec.  60-250.2(t)'' in paragraphs 5 and 
8 of Appendix A to ``Sec.  60-250.2(s).'' This is to reflect the 
revised alphabetical structure of the definitions section in the 
proposed rule, as discussed in Sec.  60-250.2, above. The proposed 
regulation also replaces the term ``VEVRAA'' with ``Section 4212'' for 
the reasons set forth in the discussion of Sec.  60-250.1.

Appendix B to Part 60-250--Sample Invitation to Self-Identify

    The proposed rule amends Appendix B consistent with the proposed 
changes to the self-identification regulation found at Sec.  60-250.42. 
The first paragraph is amended simply to include detailed definitions 
of the four types of classifications of protected veterans. These 
definitions are to be included in a contractor's invitation to self-
identify either at the pre-offer (proposed Sec.  60-250.42(a)) or post-
offer (proposed Sec.  60-250.42(b)). We propose this change to clarify 
for the contractor and for applicants exactly which categories of 
veterans are protected by part 60-250.
    The second paragraph of the Appendix contains the suggested model 
language for the self-identification of protected veterans. The current 
language has models to be used if they are being distributed to non-
special disabled protected veterans exclusively, special disabled 
veterans exclusively, or to all protected veterans. In keeping with the 
proposed changes in Sec.  60-250.42, we propose amending the second 
paragraph to include two models: one that will be given to all 
applicants at the pre-offer stage, and one that will be given at the 
post-offer stage to all individuals who have been offered employment by 
the contractor. For the pre-offer stage, the invitation refers to the 
definitions for each of the classifications of protected veterans and 
invites applicants to identify if they belong to any one (or more) of 
them generally. It does not provide for individuals to self-identify as 
a particular type of protected veteran (e.g., a qualified special 
disabled veteran). For the post-offer stage, the invitation again 
refers to the definitions for each of the classifications of protected 
veteran and then invites applicants to indicate to which specific 
classifications of protected veteran they belong.
    For both the pre-offer and post-offer invitations, we have proposed 
new language explaining to applicants that the information is being 
requested in order to measure the contractor's outreach and recruitment 
efforts required under part 60-250. This replaces the current language 
which only inquires whether individuals would like to be included under 
the contractor's affirmative action program. The post-offer invitation 
in Paragraph 2 also incorporates the language in the current paragraph 
7 of the Appendix, which requests that special disabled veterans 
describe possible workplace accommodations, with the exception of 
replacing ``elimination of certain duties relating to the job'' with 
``changes in the

[[Page 23370]]

way the job is customarily performed.'' We propose this change merely 
to clarify the nature of the interactive process, and to eliminate any 
confusion that might exist regarding the existing language that 
``elimination of certain duties'' could be read to include eliminating 
essential functions of the job. It is a change in verbiage only, and 
does not alter the substantive obligations of the contractor or 
applicant in the interactive process.
    Finally, the proposed regulation also replaces the term ``VEVRAA'' 
with ``Section 4212'' for the reasons set forth in the discussion of 
Sec.  60-250.1.

Appendix C to Part 60-250--Review of Personnel Processes

    The proposed rule deletes Appendix C and moves its content, with 
some edits, to Sec.  60-250.44(b). See the Section-by-Section Analysis 
of Sec.  60-250.44, supra, for further discussion.

41 CFR Part 60-300

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-300.1 Purpose, Applicability and Construction

    Paragraph (a) of the current rule sets forth the scope of Section 
4212 and the purpose of its implementing regulations. We propose a few 
minor changes to this section. First, we propose deleting the reference 
to the ``Vietnam Era Veterans' Readjustment Assistance Act of 1974'' or 
``VEVRAA,'' and replacing it, in this section and throughout the 
regulation, with ``Section 4212''. Referring to the operative law as 
``VEVRAA'' is not entirely accurate, as Section 4212, where VEVRAA was 
initially codified, has been amended several times since VEVRAA was 
passed--most recently by the Jobs for Veterans Act of 2002 (JVA), which 
amended the dollar amount for contract coverage and the categories of 
protected veterans, and subsequently led to the promulgation of the 
regulations found at part 60-300. One of the specific amendments made 
by the JVA was that ``Vietnam Era veterans'' was no longer a distinct 
protected category.\1\ Therefore, there is concern that continued use 
of the term ``VEVRAA'' perpetuates confusion about which 
classifications of veterans are covered under the existing law. 
Referring to the law as ``Section 4212'' clarifies that we are 
referring to the law as amended. This is more accurate than ``VEVRAA'' 
and should alleviate any further confusion.
---------------------------------------------------------------------------

    \1\ However, the vast majority of individuals who fell under the 
``Vietnam Era veteran'' category of part 60-250 would fall under one 
of the categories of protected veterans in part 60-300.
---------------------------------------------------------------------------

    Second, paragraph (a) discusses the contractor's affirmative action 
obligations, but does not discuss another primary element of the 
regulations: The prohibition of discrimination against veterans 
protected under Section 4212. Accordingly, the proposed regulation adds 
language to the first sentence of paragraph (a) to include this 
important element.
    Additionally, the proposed rule makes two minor language changes in 
order to comport with some of the newly proposed definitions in Sec.  
60-300.2. First, the term ``other protected veterans'' is amended to 
read ``active duty wartime or campaign badge veterans,'' for the 
reasons detailed in the Section-by-Section Analysis of Sec.  60-300.2. 
Second, all references to ``covered veterans'' is amended to read 
``protected veterans,'' due to the inclusion of a definition for 
``protected veteran'' in the proposed Sec.  60-300.2.

Section 60-300.2 Definitions

    The proposed rule incorporates the vast majority of the existing 
definitions contained in existing Sec.  60-300.2 without change. 
However, OFCCP proposes some changes to the substance and structure of 
this section, as set forth below.
    With regard to the structure of this section, the current rule 
lists the definitions in order of subject matter. However, for those 
who are unfamiliar with the regulations, this organizational structure 
makes it difficult to locate specific terms within this section. The 
proposed rule reorders the defined terms in alphabetical order, and 
then assigns each term a lettered subparagraph heading. This modified 
structure is proposed for ease of reference, and to facilitate citation 
to specific definitions. However, because of this reordering, the 
citation to specific terms may be different in the proposed rule than 
it is currently. For instance, the term ``contract,'' which is Sec.  
60-300.2(h) in the current regulations, is Sec.  60-300.2(e) in the 
proposed regulation.
    With regard to substantive changes, the proposed rule first 
clarifies the definitions pertaining to the classifications of veterans 
who are protected under part 60-300. The Jobs for Veterans Act (JVA), 
which amended Section 4212 in 2002, defined the classes of veterans 
protected by part 60-300. The current classifications of protected 
veterans under the JVA, reflected in the part 60-300 regulation, are as 
follows: (1) Disabled veterans; (2) veterans who served on active duty 
in the Armed Forces during a war or in a campaign or expedition for 
which a campaign badge has been authorized; (3) 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 No. 12985 (known generally as 
``Armed Forces service medal veteran''); and (4) recently separated 
veterans. Currently, Sec.  60-300.2 includes specific definitions for 
``disabled veterans,'' ``recently separated veterans,'' and ``Armed 
Forces service medal veterans.'' See 41 CFR 60-300.2(n), (q), (r). It 
does not contain a specific definition for ``veterans who served on 
active duty in the Armed Forces during a war or in a campaign or 
expedition for which a campaign badge has been authorized.'' Instead, 
this classification is included within the current ``other protected 
veteran'' definition. See 41 CFR 60-300.2(p). This anomaly has caused 
significant confusion, as many individuals who are unfamiliar with the 
regulations believe that the ``other protected veteran'' category is a 
``catch-all'' that includes all veterans. To address this issue, the 
proposed rule replaces the ``other protected veteran'' definition that 
is contained in the current regulation with the more precise 
classification language ``active duty wartime or campaign badge 
veteran'' that appears in the statute. This replacement will not change 
the scope of coverage. Instead, individuals currently covered under the 
``other protected veteran'' classification as defined in the current 
rule will still be covered, but will fall under the more accurate 
``active duty wartime or campaign badge veteran'' classification. It 
should be noted that this proposed rule does not revise the VETS-100A 
form, which is administered by the Department's Veterans' Employment 
and Training Service (VETS) and requires the contractor to tabulate the 
number of employees and new hires in each of the component categories 
of protected veterans under Section 4212. The VETS-100A form currently 
maintains the use of the ``other protected veteran'' classification. 
After the final rule is published, OFCCP will work with VETS to conform 
the VETS-100 form to the new Section 4212 regulations. The public will 
be given an opportunity to comment on these revisions, which must be 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act prior to becoming effective.

[[Page 23371]]

    The current rule also lacks a clear, overarching definition of 
``protected veteran,'' under part 60-300. Although it discusses the 
responsibilities of a contractor to all categories of protected 
veterans collectively, it also enumerates each classification of 
protected veteran several times throughout the regulation. Accordingly, 
the proposed rule includes a new definition of ``protected veteran,'' 
which includes all four classifications of protected veterans 
separately identified and defined in 60-300.2. This new term would 
replace the phrase ``disabled veteran(s), recently separated 
veteran(s), other protected veteran(s), or Armed Forces service medal 
veteran(s)'' used throughout the current rule to refer to these 
protected veterans in the aggregate. The individual categories of 
protected veterans continue to be separately identified in the first 
paragraph of the equal opportunity clause in Sec.  60-300.5 to permit 
the identification of protected veterans in the context of the contract 
(see Section-by-Section Analysis of Sec.  60-300.5, infra, for further 
explanation).
    The proposed rule also replaces the term ``Deputy Assistant 
Secretary,'' found currently at Sec.  60-300.2(d), with ``Director.'' 
The current Sec.  60-300.2(d) defines ``Deputy Assistant Secretary'' as 
``the Deputy Assistant Secretary for Federal Contract Compliance of the 
United States Department of Labor, or his or her designee.'' Following 
the elimination of the Employment Standards Administration in November 
2009, the head of OFCCP now has the title of Director. Accordingly, the 
proposed rule reflects this change, which will be made throughout part 
60-300.
    The proposed rule also adds a definition of ``linkage agreement,'' 
now described in the OFCCP Federal Contract Compliance Manual. We 
propose adding a definition of ``linkage agreement'' to the regulations 
for clarity. The proposed regulation defines ``linkage agreement'' to 
mean an agreement describing the connection between the contractor and 
appropriate recruitment and/or training sources. A linkage agreement is 
to be used by the contractor as a source of potential applicants to the 
covered groups in which the contractor is interested. The contractor's 
representative that signs the linkage agreement should be the company 
official responsible for the contractor's affirmative action program 
and/or has hiring authority.

Section 60-300.3 [Reserved]

Section 60-300.4 Coverage and Waivers

    The proposed regulation replaces the term ``Deputy Assistant 
Secretary,'' found in paragraphs (b)(1), (b)(2), and (b)(3) of this 
section, with the term ``Director,'' for the reasons set forth in the 
discussion of Sec.  60-300.2.

Section 60-300.5 Equal Opportunity Clause

    Paragraph (a) contains the equal opportunity (EO) clause that must 
be included in all covered Government contracts and subcontracts. The 
proposed regulation includes numerous substantive changes.
    First, the proposed regulation adds additional language to 
subparagraph 2 of the EO clause in this section clarifying the 
contractor's responsibility to ``list'' jobs in the context of 
mandatory listing requirements. The mandatory job listing requirement 
discussed in paragraphs 2 and 3 of the EO clause mandates that the 
contractor list all employment openings for the duration of the 
contract with an ``appropriate employment service delivery system,'' 
(hereinafter ``employment service''). This listing not only provides a 
source for veterans to access job listings, but also allows the 
employment service to provide priority referrals of veterans for the 
Federal contractor jobs listed with the employment service. Following 
the publication of the most recent revisions to part 60-300 
regulations, questions were raised as to the manner in which a 
contractor must provide information to an employment service in order 
to satisfy the requirement. There have been many instances in which a 
contractor provided job listings to an employment service in a manner 
or format that was unusable to that employment service. In order to 
satisfy the listing requirement, the contractor must provide job 
vacancy information to the appropriate employment service in the manner 
that the employment service requires in order to include the job in 
their database so that they may provide priority referral of veterans. 
OFCCP has long interpreted the listing responsibilities of a contractor 
in this manner. This change clarifies OFCCP's policy.
    The proposed regulation also adds a sentence to the end of 
paragraph 2 clarifying that, for any contractor who utilizes a 
privately-run job service or exchange to comply with its mandatory 
listing obligation, the information is subsequently must be provided to 
the appropriate employment service in the manner that the employment 
service requires. This clarification is proposed for two reasons. 
First, contractors' use of private job listing services has increased 
following the elimination of the Department's America's Job Bank 
listing service. Second, we have received feedback from officials in 
state employment services that some contractors provide job listing 
information to these private job listing services assuming that they 
have then fulfilled their listing obligations, but that the private job 
listing services do not always provide the information in the requisite 
in order to list the job opening in its database and provide priority 
referral of protected veterans.
    The proposed regulations also add further detail to paragraph 4 of 
the EO clause with respect to the specific information the contractor 
must provide to state employment services in each state where the 
contractor has establishments. The current regulations require that the 
contractor provide the appropriate state employment service with the 
name and location of each of the contractor's hiring locations. The 
proposed regulations require that the contractor provide the state 
employment service with the following additional information: (1) Its 
status as a Federal contractor; (2) the contact information for the 
contractor hiring official at each location in the state; and (3) its 
request for priority referrals of protected veterans for job openings 
at all its locations within the state. This information shall be 
updated on an annual basis. These three additional items are proposed 
in light of feedback received from state employment services that there 
is no centralized list of Federal contractors that they can consult in 
order to determine if a listing employer is a Federal contractor. If 
the Federal contractor does not specifically identify itself as such to 
the state employment service and further identify the hiring official, 
the state employment service often will not know if it should be 
providing priority referrals of protected veterans as required by Sec.  
60-300.84 or who to contact. Requiring the Federal contractor to 
provide this additional information will facilitate the priority 
referral process. The proposed regulation also adds a sentence 
clarifying that, if the contractor uses any outside job search 
companies (such as a temporary employment agency) to assist in its 
hiring, the contractor must also provide the state employment service 
with the contact information for these outside job search companies. 
Due to the widespread use of these outside job search companies, this 
proposed language is included to ensure that the state employment 
service has the ability

[[Page 23372]]

to contact any and all individuals in any way responsible for a 
contractor's hiring in order to effectively carry out its obligations 
under Sec.  60-300.84. Finally, the proposed regulation replaces the 
terms ``state workforce agency'' and ``state agency,'' found in a few 
instances in this paragraph, with the term ``employment service 
delivery system.'' The terms are interchangeable as used in this 
paragraph, but the latter term is already specifically defined in Sec.  
60-300.2, so we use it instead.
    The proposed regulation adds a new paragraph 5 to the EO clause 
which requires the contractor to maintain records, on an annual basis, 
of the total number of referrals it receives from state employment 
services, the number of priority referrals of protected veterans it 
receives, and the ratio of protected veteran referrals to total 
referrals. This is one of a few new data collection requirements set 
forth in this NPRM that are proposed in order to give the contractor 
(as well as OFCCP, in the course of compliance evaluations) a 
quantifiable measure of the availability of protected veterans in the 
workforce. The contractor would be required to maintain these records 
on the number of referrals for five (5) years. We propose a five year 
record retention requirement for multiple reasons. First, because the 
proposed rule anticipates that the contractor will use the referral 
data in setting annual hiring benchmarks (see Section-by-Section 
discussion in 300.45, infra) we wanted to ensure that the contractor 
has sufficient historical data on the number of referrals it has 
received in years past to meaningfully inform the benchmarks it sets 
going forward. Further, because the proposed rule anticipates that the 
contractor will review its outreach efforts and adjust them to maximize 
recruitment of protected veterans (see Section-by-Section discussion in 
300.44(f)(3), infra), we wanted to ensure that the contractor has 
sufficient historical data to recognize meaningful trends in 
recruitment and, subsequently, to identify effective recruitment 
efforts that corresponded with time periods of increased recruitment of 
protected veterans. If the contractor had fewer years of referral data 
on hand, it is less likely that the data would provide meaningful 
assistance to the contractor in these respects.
    In paragraph 10 of the EO clause (currently paragraph 9; renumbered 
due to the newly proposed paragraph 5, above), we propose two 
revisions. The third sentence of this paragraph is revised to clarify 
the contractor's duty to provide notices of employee rights and 
contractor obligations in a manner that is accessible and 
understandable to persons with disabilities. It also revises the 
parenthetical at the end of the sentence, replacing the outdated 
suggestion of ``hav[ing] the notice read to a visually disabled 
individual'' as an accommodation with the suggestion to provide 
Braille, large print, or other versions that allow persons with 
disabilities to read the notice themselves. The proposed regulations 
would also add the following sentences to the end of proposed paragraph 
10 (current paragraph 9) of the EO clause: ``With respect to employees 
who do not work at a physical location of the contractor, a contractor 
will satisfy its posting obligations by posting such notices in an 
electronic format, provided that the contractor provides computers that 
can access the electronic posting to such employees, or the contractor 
has actual knowledge that such employees are otherwise able to access 
the electronically posted notices. Electronic notices for employees 
must be posted in a conspicuous location and format on the company's 
intranet or sent by electronic mail to employees. An electronic posting 
must be used by the contractor to notify job applicants of their rights 
if the contractor utilizes an electronic application process. Such 
electronic applicant notice must be conspicuously stored with, or as 
part of, the electronic application.'' The addition of these sentences 
is in response to the increased use of telecommuting and other work 
arrangements that do not include a physical office setting, as well as 
Internet-based application processes in which applicants never enter a 
contractor's physical office. These revisions therefore would permit 
equivalent access to the required notices for these employees and 
applicants.
    For paragraph 11, which refers to the contractor's obligation to 
notify labor organizations or other workers' representatives about its 
obligations under Section 4212, we propose adding language clarifying 
that these obligations include non-discrimination, in addition to 
affirmative action. The current paragraph 11 does not specifically 
mention the contractor's non-discrimination obligations.
    The proposed regulations add a new paragraph 13 to the EO clause 
which would require the contractor to state and thereby affirm in 
solicitations and advertisements that it is an equal employment 
opportunity employer of veterans protected under Section 4212. A 
comparable clause exists in the equal opportunity clause of the 
Executive Order 11246 regulations, see 41 CFR 60-1.4(a)(2), describing 
the protected classes under that Order. This proposed addition ensures 
consistency between the regulations and aids in communicating the 
contractor's EEO responsibilities to job seekers.
    Finally, the proposed regulations amend paragraphs (d) and (e) of 
this section to require that the entire equal opportunity clause be 
included verbatim in Federal contracts. This is to ensure that the 
contractor and subcontractor read and understand the language in this 
clause. Feedback from town hall meetings and webinars conducted by 
OFCCP prior to the publication of this proposed rule indicated that 
some contractors, and especially subcontractors, are not aware of their 
EO Clause responsibilities. In the case of subcontractors, they often 
rely on the prime contractors to inform them of their nondiscrimination 
and affirmative action program obligations. If the EO Clause is not 
written in full, subcontractors are disadvantaged and often unaware of 
their statutory obligations until audited by OFCCP. Particularly given 
the emphasis the administration and Congress have placed on veterans' 
employment issues, we believe it is important to take whatever steps 
will inform contractors and subcontractors of the obligations under the 
EO Clause. OFCCP solicits public comment on this proposal and any other 
steps that would increase the contractor community's awareness of its 
obligations.
    The proposed regulation also replaces the term ``Deputy Assistant 
Secretary,'' found in paragraph (f) of this section and in paragraphs 9 
and 11 of the EO clause, with the term ``Director,'' for the reasons 
set forth in the discussion of Sec.  60-300.2. It also replaces the 
phrase ``disabled veteran(s), recently separated veteran(s), other 
protected veteran(s), or Armed Forces service medal veteran(s)'' found 
in the second sentence of Paragraph 1 and in Paragraph 9 of the EO 
clause, with the term ``protected veteran,'' for the reasons set forth 
in the discussion of Sec.  60-300.2. This phrase remains in the first 
sentence of Paragraph 1 (with ``active duty wartime or campaign badge 
veteran'' replacing ``other protected veteran,'' as discussed in Sec.  
60-300.2, supra) of the EO clause so it is clear to those reading the 
clause independently from the rest of the regulation precisely which 
classifications of veterans are protected by this part of the Section 
4212 regulations. Additionally, to ensure that the contractor is aware 
of the appropriate definitions, we propose adding a footnote to the 
title of the EO Clause stating explicitly that the definitions set 
forth in 41 CFR 60-300.2 apply to the EO Clause and are

[[Page 23373]]

incorporated by reference. Finally, all references to ``VEVRAA'' are 
replaced with the term ``Section 4212,'' for the reasons set forth in 
the discussion of Sec.  60-300.1.

Subpart B--Discrimination Prohibited

Section 60-300.21 Prohibitions

    This section of the rule defines and addresses prohibited 
discriminatory conduct under Section 4212. The proposed rule includes 
an additional clause at the end of paragraph (f)(3), qualifying that an 
individual who rejects a reasonable accommodation made by the 
contractor may still be considered a qualified disabled veteran if the 
individual subsequently provides and/or pays for a reasonable 
accommodation. For instance, if a veteran knows that a certain piece of 
equipment that he or she already owns will allow him or her to perform 
the functions of the job, and that equipment would represent an undue 
burden for the contractor to provide, the veteran would be able to 
provide his or her own equipment and still be considered a qualified 
disabled veteran. We propose inserting this language to ensure 
consistency with the requirement in paragraph 4 of Appendix A to the 
proposed rule, which requires that individuals be allowed to pay for or 
provide their own accommodation if providing the accommodation for the 
employee would represent an undue burden to the contractor.
    The proposed revisions also include minor language changes, 
replacing the phrase ``disabled veteran(s), recently separated 
veteran(s), other protected veteran(s), or Armed Forces service medal 
veteran(s)'' found in paragraphs (a), (b), (c)(1), (d)(1), (e), (g)(1), 
and (i) with the term ``protected veteran,'' for the reasons set forth 
in the discussion of Sec.  60-300.2, above.

Section 60-300.22 Direct Threat Defense

    The proposed revisions change ``Sec.  60-300.2(w)'' in the 
parenthetical at the end of this section to ``Sec.  60-300.2(g),'' in 
light of restructuring the Definitions section in alphabetical order, 
as discussed in Sec.  60-300.2, above.

Subpart C--Affirmative Action Program

Section 60-300.40 Applicability of the Affirmative Action Program 
Requirement

    This section sets forth which contractors are required to maintain 
an affirmative action program, and the general timing requirements for 
its creation and submission to OFCCP. We propose a minor clarification 
to paragraph (c) of this section, specifying that the affirmative 
action program shall be reviewed and updated annually ``by the official 
designated by the contractor pursuant to Sec.  60-300.44(i).'' While 
this is the intent of the existing language, the proposal clarifies 
this intention and ensures that company officials who are knowledgeable 
of the contractor's affirmative action activities and obligations are 
reviewing the program.

Section 60-300.41 Availability of Affirmative Action Program

    This section sets forth the manner by which the contractor must 
make its affirmative action programs available to employees for 
inspection, which includes the location and hours during which the 
program may be obtained. The proposed regulation adds a sentence at the 
end of this section requiring that, in instances where the contractor 
has employees who do not work at the contractor's physical 
establishment, the contractor shall inform these employees about the 
availability of the affirmative action program by means other than a 
posting at its establishment. This addition is proposed in light of the 
increased use of telecommuting and other flexible workplace 
arrangements.

Section 60-300.42 Invitation to Self-Identify

    The proposed revisions of this section make significant, 
substantive changes to the contractor's responsibilities and the 
process through which applicants are invited to self-identify as a 
veteran protected under the part 60-300 regulations, particularly those 
set forth in paragraphs (a) and (b). As described more fully below, 
these changes are proposed in order to collect enhanced data pertaining 
to protected veterans, which will allow the contractor and OFCCP to 
identify and monitor the contractor's employment practices with respect 
to protected veterans.
    The current regulation requires the contractor to invite applicants 
who are disabled veterans as defined in 60-300.2, to self-identify only 
after making an offer of employment, subject to two exceptions. See 
Sec.  60-300.42(a). For all other veterans protected by part 60-300, 
the current regulation requires the contractor to invite such 
applicants to self-identify ``before they begin [their] employment 
duties.'' See Sec.  60-300.42(b).
    The two exceptions to the prohibition on inviting disabled veterans 
to self-identify pre-offer contained in 41 CFR 300.42(a) would not 
change. The exceptions permit a contractor to invite disabled veterans 
to self-identify prior to making a job offer when: (1) The invitation 
is made while 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. These two exceptions are identical to the 
exceptions to the prohibition on pre-offer disability-related inquiries 
contained in the implementing regulations for Section 503 of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503). 
See 41 CFR 60-741.42. Consequently, under existing Section 4212 
regulations, the contractor is permitted, although not required, to 
create employment programs targeting disabled veterans and inviting 
applicants to identify whether they are eligible for the program pre-
offer. OFCCP is not proposing a change in this provision.
    The proposed change requires the contractor to invite all 
applicants to self-identify as a ``protected veteran'' prior to the 
offer of employment. This proposed change would not seek the specific 
protected classification of protected veteran (disabled veteran, 
recently separated veteran, active duty wartime or campaign badge 
veteran, or Armed Forces service medal veteran). The pre-offer 
invitation would not require protected veteran applicants to disclose 
their status as a protected veteran if they chose not to (see the 
proposed Sample Invitation to Self-Identify in Appendix B, infra). This 
new pre-offer self-identification step also would include the 
requirement, currently stated in paragraph (e) of this section, that 
the contractor maintain the pre-offer self-identification data and 
supply it to OFCCP upon request. Incorporating self-identification into 
the application process would allow the contractor, and subsequently 
OFCCP, to collect valuable, targeted data on the number of protected 
veterans who apply for Federal contractor positions. This data would 
enable the contractor and OFCCP to measure the effectiveness of the 
contractor's recruitment and affirmative action efforts over time. 
Moreover, the contractor and OFCCP will be better equipped to improve 
and refine successful and effective recruiting mechanisms, thereby 
increasing the number of applications from protected veterans. 
Additionally, this data will enable OFCCP to identify and promote 
successful recruitment and affirmative efforts taken by the contractor 
community.
    Through the various outreach efforts to stakeholders OFCCP has 
conducted in advance of this NPRM, an issue has

[[Page 23374]]

been raised regarding the implementing regulations of Title I of the 
ADA and Section 503, which limit the extent to which employers may 
inquire about disabilities prior to an offer of employment. See 29 CFR 
1630.13, 1630.14; 41 CFR 60-741.42. The concern is that requiring the 
contractor to invite applicants to self-identify as a protected veteran 
would violate the general prohibition against pre-offer disability-
related inquiries because some protected veterans will be disabled 
veterans. This concern is misplaced, as the ADA and Section 503 
regulations permit the contractor to conduct a pre-offer inquiry into 
disability status if it is ``made pursuant to a Federal, state or local 
law requiring affirmative action for individuals with disabilities,'' 
such as Section 4212 or Section 503. Id.
    However, while it would be legally permissible to do so, OFCCP is 
not proposing that the pre-offer self-identification identify the 
specific category of protected veteran for three primary reasons. 
First, given that the overall population of protected veterans is 
already relatively small, dividing the pool of protected veterans into 
smaller component classifications would tend to reduce the ability of 
the contractor to engage in meaningful data analysis of applicants, 
such as that proposed in Sec.  60-300.44(h) and (k). Second, a 
protected veteran may fall into several categories of protected 
categories, which could create unnecessary complexity to data analysis. 
For example, the same individual could be a protected veteran because 
he or she is a disabled veteran, a recently separated veteran and an 
Armed Service medal veteran. Finally, at the pre-offer stage under the 
proposed rule the contractor's obligations would be the same with 
respect to each category of protected veteran, thus there is no 
apparent benefit to knowing the specific category of protected veteran 
to which an applicant belongs.
    In addition to the pre-employment self-identification provisions in 
Sec.  60-300.42(a) of the proposed rule, Sec.  60-300.42(b) of the 
proposed rule requires the contractor to invite individuals, after the 
offer of employment is extended, to self-identify as a member of one or 
more of the four classifications of protected veterans under part 60-
300. Thus, post-offer identification will enable the contractor to 
capture refined data pertaining to each classification of protected 
veterans, as set forth in the VETS-100A form, which the contractor is 
required to maintain and submit. As is currently the case, the post-
offer self-identification as a disabled veteran would not require 
applicants to disclose the specific nature of their disability.
    We propose to revise paragraph (c) of this section by deleting the 
second sentence of the parenthetical at the end of the paragraph. This 
sentence described the format of and rationale behind the current 
Appendix B, which has been substantially amended in light of the new 
self-identification procedures proposed herein. For the same reasons, 
we propose revising paragraph (d) of this section to reflect the newly 
proposed self-identification process in which applicants will only 
identify themselves as disabled veterans specifically after an offer of 
employment is made. Further, we propose revising paragraph (d) to 
require, rather than suggest, that the contractor seek the advice of 
the applicant regarding accommodation. Requiring this of the contractor 
will help initiate a robust interactive and collaborative process 
between the contractor and the employee or applicant to identify 
effective accommodations that will facilitate a disabled veteran's 
ability to perform the job. While the purpose of this requirement is to 
promote agreement between the contractor and employee or applicant 
regarding accommodations to be used, this proposed change would not 
require that, in the event that multiple reasonable accommodations 
exist, the contractor must utilize the reasonable accommodation 
preferred by the employee or applicant.
    We also propose replacing the term ``appropriate accommodation'' in 
paragraph (d) with ``reasonable accommodation.'' We have always 
interpreted ``appropriate accommodation'' in this paragraph as 
substantively identical to the term ``reasonable accommodation.'' 
However, because ``reasonable accommodation'' is already defined in 
these regulations and has a more broadly used and accepted legal 
definition, we propose using it here to avoid any confusion. This 
language change does not alter the contractor's existing obligations.

Section 60-300.43 Affirmative Action Policy

    This section outlines the contractor's non-discrimination and 
affirmative action obligations under Section 4212. We propose two minor 
revisions to this section.
    First, we propose replacing the phrase ``because of status as a'' 
in this section to ``against,'' in order to clarify that the non-
discrimination requirements of Section 4212 are limited to protected 
veterans and that reverse discrimination claims may not be brought by 
individuals who do not fall under one of the categories of veterans 
protected by part 60-300. Second, we propose replacing the phrase 
``disabled veteran(s), recently separated veteran(s), other protected 
veteran(s), or Armed Forces service medal veteran(s),'' used twice in 
this section, with the term ``protected veteran,'' for the reasons set 
forth in the discussion of Sec.  60-300.2.

Section 60-300.44 Required Contents of Affirmative Action Programs

    This section details the elements that the contractor's affirmative 
action programs must contain. These existing elements include: (1) An 
equal employment opportunity policy statement; (2) a comprehensive 
annual review of personnel processes; (3) a review of physical and 
mental job qualifications; (4) a statement that the contractor is 
committed to making reasonable accommodations for persons with physical 
and mental disabilities; (5) a statement that the contractor is 
committed to ensuring a harassment-free workplace for protected 
veterans; (6) external dissemination of the contractor's affirmative 
action policy, as well as outreach and recruitment efforts; (7) 
internal dissemination of the contractor's affirmative action policy to 
all of its employees; (8) development and maintenance of an audit and 
reporting system designed to evaluate affirmative action programs; and 
(9) training for all employees regarding the implementation of the 
affirmative action program.
    The first substantive proposed revisions to this section focus on 
the contractor's policy statement as set forth in paragraph (a). The 
proposed regulation revises the second sentence to clarify the 
contractor's duty to provide notices of employee rights and contractor 
obligations in a manner that is accessible and understandable to 
persons with disabilities. It also revises the parenthetical at the end 
of the sentence, replacing the outdated suggestion of ``hav[ing] the 
notice read to a visually disabled individual'' as an accommodation 
with the suggestion to provide Braille, large print, or other versions 
that allow persons with disabilities to read the notice themselves. The 
proposed regulation also revises the third sentence of paragraph (a) 
regarding the content of the policy statement, replacing the inclusion 
of the ``chief executive officer's attitude on the subject matter'' 
with ``chief executive officer's support for the affirmative action 
program.'' This proposed change is made to clarify the intent of 
including a statement from the contractor's CEO in the affirmative

[[Page 23375]]

action policy statement, which is to signal to the contractor's 
employees that support for the affirmative action program goes to the 
very top of the contractor's organization.
    In paragraph (b), the proposed rule requires that the contractor 
must review its personnel processes on at least an annual basis to 
ensure that its obligations are being met. The current rule requires 
that the contractor review these processes ``periodically''. This 
standard is vague and subject to confusion. Indeed, OFCCP's efforts to 
enforce this requirement in recent years have been complicated by 
contractors' various, subjective interpretations of what constitutes 
``periodic'' review. This proposal sets forth a clear, measurable and 
uniform standard that will be easily understood by the contractor and 
more easily enforced by OFCCP.
    Further, the proposed revisions mandate certain specific steps that 
the contractor must take, at a minimum, in the review of its personnel 
processes. These specific steps are those currently set forth in 
Appendix C to the regulation. Appendix C currently suggests that the 
contractor: (1) Identify the vacancies and training programs for which 
protected veteran applicants and employees were considered; (2), 
provide a statement of reasons explaining the circumstances for 
rejecting protected veterans for vacancies and training programs and a 
description of considered accommodations; and (3) describe the nature 
and type of accommodations for special disabled veterans who were 
selected for hire, promotion, or training programs. Previously, these 
steps were recommended as an appropriate set of procedures. OFCCP's 
enforcement efforts have found that many contractors do not follow 
these recommended steps, and that the documentation contractors 
maintain of the steps they do take are often not conducive to a 
meaningful review by the contractor or OFCCP, particularly in the event 
of employee/applicant complaints. Such a meaningful review has always 
been the goal of the requirements in paragraph (b), as it ensures that 
the contractor remains aware of and actively engages in its overall 
affirmative action obligations toward protected veterans. The proactive 
approach set forth in the current Appendix C would provide greater 
transparency between the contractor, its applicants/employees, and 
OFCCP as to the reasons for the contractor's personnel actions. 
Requiring that the contractor record the specific reasons for their 
personnel actions, and making them available to the employee or 
applicant upon request, would also aid them in clearly explaining their 
personnel actions to applicants and employees, which could subsequently 
reduce the number of complaints filed against contractors. Thus we 
propose requiring the contractor to take these steps outlined currently 
in Appendix C (which are incorporated into paragraph (b) in the 
proposed rule), and encourage the contractor to undertake any 
additional appropriate procedures to satisfy its affirmative action 
obligations.
    The proposed paragraph (c) clarifies that all physical and mental 
job qualification standards must be reviewed and updated, as necessary, 
on an annual basis. As with paragraph (b), the current rule's 
requirement that the contractor review these standards ``periodically'' 
is vague and subject to confusion. OFCCP has concluded that contractors 
inconsistently interpreted what constitutes ``periodic'' review. The 
proposed change provides a clear, measurable, and uniform standard.
    The proposed paragraph (c)(1) adds language requiring the 
contractor to document the results of its annual review of physical and 
mental job qualification standards. The regulation has long required 
this review to ensure that job qualification standards which tend to 
screen out disabled veterans are job-related and consistent with 
business necessity. The proposed change would merely require that the 
contractor document the review it has already been required to perform. 
It is anticipated that this documentation would list the physical and 
mental job qualifications for the job openings during a given AAP 
year--which should already be available from the contractor's job 
postings--and provide an explanation as to why each requirement is 
related to the job to which it corresponds. Documenting this review 
will ensure that the contractor critically analyzes its job 
requirements and proactively eliminates those that are not job-related. 
It will also allow OFCCP to conduct audits and investigations in a more 
thorough and efficient manner.
    Paragraph (c)(3) currently provides that, as a defense to a claim 
by an individual that certain mental or physical qualifications are not 
job-related and consistent with business necessity, the contractor may 
assert that the individual poses a ``direct threat'' to the health or 
safety of the individual or others in the workplace. The definition of 
``direct threat'' in these regulations spells out the criteria that the 
contractor must consider in determining whether a ``direct threat'' 
exists. The proposed paragraph (c)(3) would require the contractor to 
contemporaneously create a written statement of reasons supporting its 
belief that a direct threat exists, tracking the criteria set forth in 
the ``direct threat'' definition in these regulations, and maintain the 
written statement as set forth in the recordkeeping requirement in 
Sec.  60-300.80. Once again, this is to ensure that the contractor's 
``direct threat'' analysis--which is already required under these 
regulations, as well as regulations to Section 503 of the 
Rehabilitation Act and the Americans with Disabilities Act--is well-
reasoned and available for review by OFCCP.
    Finally, for both the proposed documenting requirements in 
paragraphs (c)(1) and (c)(3), the proposed regulation would require 
that the contractor treat the created documents as confidential medical 
records in accordance with Sec.  60-300.23(d).
    Perhaps the most significant substantive changes in the proposed 
rule address the scope of the contractor's recruitment efforts and the 
dissemination of its affirmative action policies described in 
paragraphs (f) and (g) of this section. While these two paragraphs 
generally require that the contractor engage in recruitment and 
disseminate its policies, the current rule recommends rather than 
requires the specific methods for carrying out these obligations.
    The current paragraph (f) suggests a number of outreach and 
recruitment efforts that the contractor can undertake in order to 
increase the employment opportunities for protected veterans. See 41 
CFR 60-300.44(f)(1). The proposed paragraph (f) requires that the 
contractor engage in a minimum number of outreach and recruitment 
efforts as described in proposed paragraph (f)(1). The proposed 
paragraph (f) also includes a list of additional outreach and 
recruitment efforts that are suggested (proposed paragraph (f)(2)), a 
new requirement that the contractor conduct self-assessments of their 
outreach and recruitment efforts (proposed paragraph (f)(3)), and a 
clarification of the contractor's recordkeeping obligation with regard 
to its outreach and recruitment efforts (proposed paragraph (f)(4)).
    In the proposed paragraph (f)(1), the contractor would be required 
to engage in three outreach and recruitment efforts. First, the 
contractor would be required to enter into linkage agreements and 
establish ongoing relationships with the Local Veterans' Employment 
Representative in the local employment service office nearest the 
contractor's establishment. The statute already requires contractors 
and subcontractors to send their job listings

[[Page 23376]]

to the Local Veterans' Employment Representative in the local or state 
employment service office for listing and priority referral of 
protected veterans. The Local Veterans' Employment Representative is an 
existing government resource provided for veterans to help them find 
employment.
    Second, the contractor would be required to enter into a linkage 
agreement with at least one of several other listed organizations and 
agencies for purposes of recruitment and developing training 
opportunities. The listed organizations and agencies are those that are 
listed in the current paragraph (f)(1), with one addition: the 
Department of Defense Transition Assistance Program (TAP), or any 
subsequent program that replaces TAP. This program is administered in 
part by the Department of Labor's Veterans' Employment and Training 
Service (VETS) in Family Services Offices or similar offices at 
military bases. (See http://www.dol.gov/vets/programs/tap/tap_fs.htm) 
According to the Department of Defense, there are 249 TAP offices in 
installations around the United States, and another 16 TAP offices 
located in installations abroad. The TAP was designed to ``smooth the 
transition of military personnel and family members leaving active 
duty.'' The TAP includes employment workshops with the Department of 
Labor, and offers individualized employment assistance and training. It 
is currently required for all those serving in the Marine Corps, and is 
generally encouraged and supported by the other branches of the 
military. Accordingly, it provides an excellent existing source for 
identifying qualified protected veterans TAP is a validated multi-
government agency program that assists separating veterans in finding 
employment, from resume writing to interview techniques to dressing for 
success. OFCCP is aware, however, that not all contractors are located 
near a military base or similar facility which provides TAP; therefore, 
a contractor may select another organization or agency from the list 
that is more conducive to its recruiting efforts.
    Third, paragraph (f)(1) would also require that the contractor 
consult the Employer Resources section of the National Resource 
Directory, a partnership with an online collaboration (http://www.nationalresourcedirectory.gov/employment/job_services_and_employment_resources) among the Departments of Labor, Defense, and 
Veterans Affairs. New contractors and subcontractors often inquire 
about how they can find qualified protected veterans to comply with 
their AAP obligations. The National Resource Directory is a leading 
government Web site that provides prospective employers of veterans 
access to veterans' service organizations, existing job banks of 
veterans seeking employment, and other resources at the national, state 
and local levels. The NPRM gives contractors and subcontractors the 
flexibility to select any organization on the National Resource 
Directory for outreach and recruit purposes. Since this Web site is a 
great nationwide resource, any contractor would likely find it useful 
in fulfilling its affirmative action obligations, such as recruiting 
veterans. The contractor would be required to establish a linkage 
agreement with at least one of the many veterans' service organizations 
listed on the site (excluding organizations described in the previous 
paragraph) to facilitate referral of qualified protected veterans, as 
well as other related advice and technical assistance. We believe that 
these first two efforts that the proposed rule requires would assist 
the contractor in establishing a baseline level of contact with veteran 
and employment-related organizations, while providing the contractor 
with flexibility to establish linkage agreements with organizations 
that are most tailored to the contractor's hiring needs. Finally, the 
proposed paragraph (f)(1) would also require that the contractor send 
written notification of company policy related to affirmative action 
efforts to its subcontractors, including subcontracting vendors and 
suppliers, in order to request appropriate action on their parts and to 
publicize the contractor's commitment to affirmative action on behalf 
of protected veterans. While the proposed regulations would not require 
that the contractor send written notification to vendors and suppliers 
who are not subcontractors as defined by these regulations, such 
disclosure remains an encouraged activity, just as it is under the 
current regulation. See 41 CFR 60-300.44(f)(6)).
    We believe that the required linkage agreements we propose in 
paragraph (f)(1) will greatly facilitate the contractor's efforts to 
attract qualified protected veteran applicants. We encourage comments 
from stakeholders regarding this proposal, particularly if stakeholders 
have information on recruitment sources not included in this proposal 
that might increase employment of protected veterans.
    In paragraph (f)(2) of the proposed rule, we list a number of 
outreach and recruitment efforts that are suggested measures for 
increasing employment opportunities for protected veterans. The efforts 
listed in paragraph (f)(2) are largely identical to the efforts that 
are suggested in paragraphs (f)(2) through (f)(5) and (f)(7) through 
(f)(8) of the current rule. This includes: (1) Holding briefing 
sessions with representatives from recruiting resources; (2) 
incorporating recruitment efforts for protected veterans at educational 
institutions; (3) considering applicants who are known protected 
veterans for all available positions when the position applied for is 
unavailable; and (4) any other positive steps the contractor believes 
are necessary to attract qualified protected veterans, including 
contacts with any local veteran-related organizations.
    Paragraph (f)(3) of the proposed rule would require the contractor, 
on an annual basis, to review the outreach and recruitment efforts it 
has undertaken over the previous twelve months and evaluate their 
effectiveness in identifying and recruiting qualified protected 
veterans, and document its review. Contractors that do not proactively 
monitor their outreach and recruitment efforts often lose opportunities 
to consider and hire qualified protected veterans for employment. This 
requirement will allow the contractor to look at its measurable 
accomplishments and reconsider unproductive methods. We believe 
requiring this on an annual basis strikes the proper balance between 
ensuring that adjustments to recruitment efforts are made on a timely 
basis if needed, while also ensuring that the contractor has enough 
data on existing recruitment efforts to be able to determine if 
adjustments need to be made.
    We recognize that the ``effectiveness'' of an outreach or 
recruitment effort is not easily defined, and may include a number of 
factors that are unique to a particular contractor establishment. 
Generally speaking, a review of the efficacy of a contractor's efforts 
should include the number of protected veteran candidates each effort 
identifies. Recognizing that other unique and intangible 
characteristics may contribute to the assessment of the 
``effectiveness'' of a given effort, the proposed regulation allows the 
contractor some flexibility in making this assessment. However, the 
proposed regulation requires that the contractor consider the numbers 
of protected veteran referrals, applicants, and hires for the current 
years and two previous years as criteria in evaluating its efforts, and 
document all other criteria that it uses to assess the effectiveness of 
its efforts, so that OFCCP compliance

[[Page 23377]]

officers are able to understand clearly the rationale behind the 
contractor's self-assessment. The contractor's conclusion as to the 
effectiveness of its outreach must be reasonable as determined by OFCCP 
in light of these regulations. The primary indicator of effectiveness 
is whether qualified veterans have been hired. Further, should the 
contractor determine that its efforts were not effective, the proposed 
rule requires the contractor to identify and implement one or more of 
the alternative efforts listed in proposed paragraphs (f)(1) and (f)(2) 
in order to fulfill its obligations. The general purpose of this self-
assessment is to ensure that the contractor think critically about its 
recruitment and outreach efforts, identify and ascertain successful 
recruiting efforts, and modify its efforts to ensure that its 
obligations are being met.
    Paragraph (f)(4) of the proposed rule would require that the 
contractor document its linkage agreements and the activities it 
undertakes in order to comply with paragraph (f), and retain these 
documents for a period of five (5) years. This requirement will enable 
the contractor and OFCCP to more effectively review recruitment and 
outreach efforts undertaken to ensure that the affirmative action 
obligations of paragraph (f) are satisfied.
    Paragraph (g) of this section requires that the contractor develop 
internal procedures to communicate to its employees its obligation to 
engage in affirmative action efforts. The current paragraph (g)(2) 
contains several suggested methods by which the contractor may 
accomplish this. The proposed rule would mandate the following 
practices: (1) Include its affirmative action policy in its policy 
manual; (2) inform all applicants and employees of its affirmative 
action obligations; (3) conduct meetings with executive, management, 
and supervisory personnel to explain the intent of the policy and 
responsibility for its implementation; and (4) discuss the policy in 
orientation and management training programs. In addition, if the 
contractor is party to a collective bargaining agreement, then the 
proposed rule would require the contractor to meet with union officials 
and representatives to inform them about the policy and seek their 
cooperation. Other suggested elements in the current paragraph (g)(2) 
remain in the proposed rule at newly created paragraph (g)(3) as 
suggested additional dissemination efforts the contractor can make. 
This includes suggesting that the contractor use company newspapers, 
magazines, annual reports, handbooks, or other media to publicize its 
affirmative action obligations and feature protected veterans and their 
accomplishments. See current regulation at 41 CFR 60-300.44(g)(2)(iii), 
60-300.44(g)(2)(vii); 60-300.44(g)(2)(viii).
    As for the requirement to inform all applicants and employees of 
its affirmative action obligations (item (2) in the preceding 
paragraph), the proposed regulation would require that the contractor 
hold meetings with its employees at least once per year to discuss the 
contractor's affirmative action policies and to explain contractor and 
individual employee responsibilities under these policies. These could 
be traditional in-person meetings, or meetings facilitated by 
technology such as webinars or videoconferencing. It would also require 
that the contractor describe individual employee opportunities for 
advancement in furtherance of the contractor's affirmative action plan. 
Frequent establishment-wide training on affirmative action issues will 
facilitate a greater understanding of the purpose of the affirmative 
action plan among employees. This training will also enhance the 
visibility and importance of affirmative action to the recruitment, 
hiring, and advancement of protected veterans. Finally, a newly 
proposed paragraph (g)(4) would require the contractor to document its 
activities in order to comply with paragraph (g), and retain these 
documents as records subject to the recordkeeping requirements of Sec.  
60-300.80. This will allow for a more effective review by the 
contractor and OFCCP to ensure that the affirmative action obligations 
of paragraph (g) are being met.
    Paragraph (h) of this section details the contractor's 
responsibilities in designing and implementing an audit and reporting 
system for its affirmative action program, including the specific 
computations and comparisons that are part of the audit. The proposed 
regulations add a new paragraph (h)(1)(vi) requiring the contractor to 
document the actions taken to comply with paragraphs (h)(1)(i)-(v), and 
maintain such documents as records subject to the recordkeeping 
requirements of Sec.  60-300.80. Again, this will allow for a more 
effective review by the contractor and OFCCP to ensure the affirmative 
action obligations of this paragraph are being met.
    The only substantive proposed change in paragraph (i) requires that 
the identity of the officials responsible for a contractor's 
affirmative action activities must appear on all internal and external 
communications regarding the contractor's affirmative action program. 
In the current regulation, this disclosure is only suggested. Requiring 
this disclosure will increase transparency, making it clear to 
applicants, employees, OFCCP, and other interested parties which 
individual(s) are responsible for the implementation of the 
contractor's affirmative action program.
    Paragraph (j) requires that the contractor train those individuals 
who implement the personnel decisions pursuant to its affirmative 
action program. The proposed regulation specifies the specific topics 
that shall be included in the contractor's training: the benefits of 
employing protected veterans; appropriate sensitivity toward protected 
veteran recruits, applicants and employees; and the legal 
responsibilities of the contractor and its agents regarding protected 
veterans generally and disabled veterans specifically, such as 
reasonable accommodation for qualified disabled veterans and the 
related rights and responsibilities of the contractor and protected 
veterans. Training on these issues will facilitate a greater 
understanding of the purpose of the affirmative action plan among 
decision makers for the contractor, and will enhance the visibility and 
importance of affirmative action to the recruitment, hiring, and 
advancement of protected veterans. The proposed regulation would also 
require that the contractor record which of its personnel receive this 
training, when they receive it, and the person(s) who administer(s) the 
training, and maintain these records, along with all written or 
electronic training materials used, in accordance with the 
recordkeeping requirements of Sec.  60-300.80. Again, this will allow 
for a more effective review by the contractor and OFCCP to ensure the 
affirmative action obligations of this paragraph are being met.
    The proposed regulation adds a new paragraph (k) requiring that the 
contractor maintain several quantitative measurements and comparisons 
regarding protected veterans who have been referred by state employment 
services, have applied for positions with the contractor, and/or have 
been hired by the contractor. The impetus behind this new section is 
that, as stated in the discussion of Sec.  60-300.44(a), no structured 
data regarding the number of protected veterans who are referred for or 
apply for jobs with Federal contractors is currently maintained. This 
absence of data makes it nearly impossible for the contractor and OFCCP 
to perform even rudimentary evaluations of the availability of

[[Page 23378]]

protected veterans in the workforce, or to make any quantitative 
assessments of how effective contractor outreach and recruitment 
efforts have been in attracting protected veteran candidates. The 
proposed regulations provide for the collection of referral data (see 
Sec.  60-300.5, paragraph 5 of the EO clause), as well as applicant 
data (see Sec.  60-300.42(a)). Hiring data is already maintained by the 
contractor in its VETS-100A forms, a requirement which is carried over 
into this proposal. Accordingly, paragraph (k) requires that the 
contractor document and update annually the following information: (1) 
For referral data, the total number of referrals, the number of 
priority referrals of protected veterans, and the ``referral ratio'' of 
referred protected veterans to total referrals; (2) for applicant data, 
the total number of applicants for employment, the number of applicants 
who are known protected veterans, and the ``applicant ratio'' of known 
protected veteran applicants to total applicants; (3) for hiring data, 
the total number of job openings, the number of jobs filled, the number 
of known protected veterans hired, and the ``hiring ratio'' of known 
protected veteran hires to total hires; and (4) the total number of job 
openings, the number of jobs that are filled, and the ``job fill 
ratio'' of job openings to job openings filled. The proposed regulation 
requires that the contractor must document these measurements on an 
annual basis, and maintain records of them for five (5) years. These 
basic measurements will provide the contractor and OFCCP with important 
information that does not currently exist. This will aid the contractor 
in evaluating and tailoring its recruitment and outreach efforts and in 
establishing hiring benchmarks as set forth in the discussion of the 
proposed Sec.  60-300.45, infra.
    Finally, the proposed regulation replaces the phrase ``disabled 
veteran(s), recently separated veteran(s), other protected veteran(s), 
or Armed Forces service medal veteran(s),'' with the term ``protected 
veteran'' in paragraphs (a), (a)(2), (a)(3), (b), (e), (f), (f)(1), 
(f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), (g)(2)(vii), 
and (h)(1)(iv), for the reasons stated in the discussion of Sec.  60-
300.2. The proposed regulation also replaces the terms ``Vietnam Era 
Veterans' Readjustment Assistance Act of 1974'' or ``VEVRAA'' with the 
term ``Section 4212'' throughout this section, for the reasons stated 
in the discussion of Sec.  60-300.1.

Section 60-300.45 Contractor-Established Benchmarks for Hiring

    The proposed regulation would require for the first time that the 
contractor establish annual hiring benchmarks, expressed as the 
percentage of total hires who are protected veterans that the 
contractor seeks to hire in the following year. As stated in paragraph 
(a) of the proposed rule and set forth more fully below, these hiring 
benchmarks would be established by the contractor using existing data 
on veteran availability, while also allowing the contractor to take 
into account other factors unique to its establishment that would tend 
to affect the availability determination.
    While the Bureau of Labor Statistics (BLS) and Census Bureau 
(Census) do not tabulate data pertaining to the specific 
classifications of protected veterans under part 60-300, there are 
other existing data sources that are instructive. For instance, BLS 
tabulates statewide data on the number of veterans in the civilian 
labor force and the unemployment rate of veterans in the labor force, 
and national data on the number of veterans with a service-related 
disability. The Department's Veterans' Employment and Training Service 
collects statewide data over a rolling, four quarter period of 
individuals who ``participated'' in the state employment services. The 
breakdown of this data includes the number of overall veterans, the 
number of overall veterans who are identified as being unemployed, and 
the number of veterans in some, although not all, of the specific 
categories of veterans protected by part 60-300.
    Accordingly, the proposed rule would require that the contractor 
consult a number of different sources of information, which will be 
made easily available to the contractor, in establishing hiring 
benchmarks. As set forth in the proposed paragraph (b), these sources 
would include: (1) The percentage of veterans in the civilian labor 
force, tabulated by BLS and which will be published on OFCCP's Web 
site; (2) the number of veterans who were participants in the state 
employment service in the State where the contractor's establishment 
is, which will also be published on OFCCP's Web site; (3) the referral 
ratio, applicant ratio, and hiring ratios as expressed in the proposed 
Sec.  60-300.44(k); (4) the contractor's recent assessments of the 
effectiveness of its external outreach and recruitment efforts, as 
expressed in the proposed Sec.  60-300(f)(3); and (5) any other 
factors, including but not limited to the nature of the contractor's 
job openings and/or its location, which would tend to affect the 
availability of qualified protected veterans. The contractor would be 
required to consider and document each of these factors, see proposed 
paragraph (c) of this section, but would be given discretion to weigh 
the various factors in a manner that is reasonable in light of the 
contractor's unique circumstances. We believe that this proposal 
creates a practical and workable mechanism for establishing benchmarks 
that will allow the contractor to measure its success in recruiting and 
employing protected veterans. However, we seek input from stakeholders 
on this proposal and any additional measures that would make these 
benchmarks more meaningful, as well as any other measures that would 
otherwise increase employment opportunities for veterans.

Subpart D--General Enforcement and Complaint Procedures

Section 60-300.60 Compliance Evaluations

    This section details the form and scope of the compliance 
evaluations of the contractor's affirmative action programs conducted 
by OFCCP. The proposed rule contains several changes to this section.
    First, the proposal adds a sentence to paragraph (a)(1)(i) 
regarding the temporal scope of desk audits performed by OFCCP. This 
language merely clarifies OFCCP's long-standing policy that, in order 
to fully investigate and understand the scope of potential violations, 
OFCCP may need to examine information after the date of the scheduling 
letter in order to determine, for instance, if violations are 
continuing or have been remedied. The language does not represent a 
change in policy or new contractor obligations.
    Second, the current paragraph (a)(2) relating to the off-site 
review of records incorrectly refers to the ``requirements of the 
Executive Order and its regulations;'' the proposed rule corrects this 
to read the ``requirements of Section 4212 and its regulations.''
    Third, the proposed rule contains a change to the nature of 
document production under paragraph (a)(3). This paragraph, which 
specifies a ``compliance check'' as an investigative procedure OFCCP 
can use to monitor a contractor's recordkeeping, currently states that 
the contractor may provide relevant documents either on-site or off-
site ``at the contractor's option.'' The proposed regulation eliminates 
this quoted clause and provides that OFCCP may request that the 
documents to be provided either on-site or off-site.
    Fourth, the proposed rule contains a minor change to the scope of 
``focused reviews'' as set forth in paragraph (a)(4). Focused reviews 
allow OFCCP to target

[[Page 23379]]

one or more components of a contractor's organization or employment 
practices, rather than conducting a more comprehensive compliance 
review of an entire organization. Currently, the regulations provide 
that these focused reviews are ``on-site,'' meaning they must take 
place at the contractor's place of business. The increased use of 
electronic records that are easily accessible from multiple locations 
affords compliance officers greater flexibility in conducting focused 
reviews. Therefore, we propose to delete the word ``on-site'' from this 
section, which will allow compliance officers to conduct reviews of 
relevant materials at any appropriate location.
    Fifth, the proposed rule contains a new paragraph (d) which details 
a new procedure for pre-award compliance evaluation under Section 4212. 
This proposed rule is based on the pre-award compliance procedure 
contained in the Executive Order regulations (see 41 CFR 60-1.20(d)).
    Finally, the proposed regulation replaces the phrase ``disabled 
veteran(s), recently separated veteran(s), other protected veteran(s), 
or Armed Forces service medal veteran(s),'' with the term ``protected 
veteran'' in paragraph (a) for the reasons stated in the discussion of 
Sec.  60-300.2.

Section 60-300.61 Complaint Procedures

    This section outlines the manner in which applicants or employees 
who are protected veterans may file complaints alleging violations of 
Section 4212 or its regulations.
    The proposed rule replaces the term ``Deputy Assistant Secretary'' 
with the term ``Director'' in paragraphs (e)(1), (e)(2), and (e)(3), 
for the reasons set forth in the discussion of Sec.  60-300.2. The 
proposed regulation also replaces the term ``state workforce agency'' 
in paragraph (a) with the term ``employment service delivery system,'' 
for the reasons set forth in the discussion of Sec.  60-300.5. Finally, 
the proposed regulation replaces the phrase ``disabled veteran(s), 
recently separated veteran(s), other protected veteran(s), or Armed 
Forces service medal veteran(s),'' with the term ``protected veteran'' 
in paragraph (b)(iii), for the reasons stated in the discussion of 
Sec.  60-300.2.

Section 60-300.64 Show Cause Notice

    This section describes the manner in which OFCCP notifies a 
contractor when it believes the contractor has violated Section 4212 or 
its regulations. The proposed rule replaces the term ``Deputy Assistant 
Secretary'' in this section with the term ``Director,'' for the reasons 
set forth in the discussion of Sec.  60-300.2.

Section 60-300.65 Enforcement Proceedings

    This section describes the procedures for formal enforcement 
proceedings against a contractor in the event OFCCP finds a violation 
of Section 4212 or its regulations that has not been corrected. The 
proposed rule replaces the term ``Deputy Assistant Secretary'' in 
paragraph (a)(2) of this section with the term ``Director,'' for the 
reasons set forth in the discussion of Sec.  60-300.2.

Section 60-300.66 Sanctions and Penalties

    This section discusses the types of sanctions and penalties that 
may be assessed against a contractor if it is found to have violated 
Section 4212 or its regulations. The proposed rule replaces the term 
``Deputy Assistant Secretary'' in paragraph (a) of this section with 
the term ``Director,'' for the reasons set forth in the discussion of 
Sec.  60-300.2.

Section 60-300.67 Notification of Agencies

    This section provides that agency heads will be notified if any 
contractors are debarred. The proposed rule replaces the term ``Deputy 
Assistant Secretary'' with the term ``Director,'' for the reasons set 
forth in the discussion of Sec.  60-300.2.

Section 60-300.68 Reinstatement of Ineligible Contractors

    This section outlines the process by which a contractor that has 
been debarred may apply for reinstatement. The proposed rule replaces 
the term ``Deputy Assistant Secretary'' in paragraphs (a) and (b) of 
this section with the term ``Director,'' for the reasons set forth in 
the discussion of Sec.  60-300.2.

Section 60-300.69 Intimidation and Interference

    This section forbids the contractor from retaliating against 
individuals who have engaged in or may engage in certain specified 
protected activities, and describes the contractor's affirmative 
obligations in preventing retaliation. The proposed rule replaces the 
term ``Deputy Assistant Secretary'' in paragraph (b) of this section 
with the term ``Director,'' for the reasons set forth in the discussion 
of Sec.  60-300.2. The proposed rule also replaces the phrase 
``disabled veteran(s), recently separated veteran(s), other protected 
veteran(s), or Armed Forces service medal veteran(s),'' with the term 
``protected veteran'' in paragraphs (a)(2) and (a)(3) for the reasons 
stated in the discussion of Sec.  60-300.2.

Subpart E--Ancillary Matters

Section 60-300.80 Recordkeeping

    This section describes the recordkeeping requirements that applies 
to the contractor under Section 4212, and the consequences for the 
failure to preserve records in accordance with these requirements. The 
proposed regulation adds a sentence at the end of paragraph (a) of this 
section clarifying that the newly proposed recordkeeping requirements 
set forth in Sec. Sec.  300.44(f)(4) (linkage agreements and other 
outreach and recruiting efforts), 300.44(k) (collection of referral, 
applicant and hire data), 300.45(c) (criteria and conclusions regarding 
contractor established hiring benchmarks), and Paragraph 5 of the equal 
opportunity clause in Sec.  60-300.5(a) (referral data) must be 
maintained for five (5) years, for the reasons set forth in the 
discussion of those sections, supra.

Section 60-300.81 Access to Records

    This section describes a contractor's obligations to permit access 
to OFCCP when conducting compliance evaluations and complaint 
investigations. The proposed rule adds some language clarifying the 
contractor's obligations, particularly in light of the increased use of 
electronically stored records. First, the proposed rule adds a sentence 
requiring the contractor to provide off-site access to materials if 
requested by OFCCP investigators or officials as part of an evaluation 
or investigation. This change reflects the increased use of electronic 
records from multiple locations, and accordingly gives OFCCP greater 
flexibility in conducting its evaluations and investigations. Second, 
the proposed rule requires that the contractor specify to OFCCP all 
formats (including specific electronic formats) in which its records 
are available, and produce records to OFCCP in the format selected by 
OFCCP. This change is proposed in light of numerous instances in which 
OFCCP has conducted extensive review and analysis of a contractor's 
records only to find subsequently that the records were available in 
more readily accessible formats. Specifying the variety of available 
formats upon request, and providing records to OFCCP in the format it 
selects, will facilitate a more efficient investigation process.

[[Page 23380]]

Section 60-300.83 Rulings and Interpretations

    This section establishes that rulings and interpretations of 
Section 4212 will be made by the Director of OFCCP. The proposed 
revisions make minor changes, replacing the term ``Deputy Assistant 
Secretary'' with the term ``Director,'' for the reasons set forth in 
the discussion of Sec.  60-300.2.

Section 60-300.84 Responsibilities of Appropriate Employment Service 
Delivery Systems

    This section outlines the responsibilities of employment service 
delivery systems, including the obligation to give priority referral to 
protected veterans for jobs listed by a Federal contractor. The 
proposed rule replaces the phrase ``disabled veteran(s), recently 
separated veteran(s), other protected veteran(s), or Armed Forces 
service medal veteran(s),'' with the term ``protected veteran'' for the 
reasons stated in the discussion of Sec.  60-300.2.

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

    The proposed rule includes four changes to Appendix A which would 
mandate activities that previously were only suggested. These changes 
primarily reflect proposed revisions to Sec. Sec.  60-300.2 and 60-
300.42(d), supra, that would alter the contractor's responsibilities.
    First, in the third sentence of paragraph 2, we propose changing 
the language to reflect the change to Sec.  60-300.42(d) requiring a 
contractor to seek the advice of disabled veterans in providing 
reasonable accommodation. Second, in the last sentence of Paragraph 4, 
the proposed rule is changed to require that disabled veterans, in the 
event an accommodation would constitute an undue hardship for the 
contractor, be given the option of providing the accommodation or 
paying the portion of the cost that constitutes the undue hardship for 
the contractor. Third, in the fourth sentence of paragraph 5, we 
propose changing the language to require a contractor to seek the 
advice of disabled veterans in providing reasonable accommodation. 
Finally, in the last sentence of paragraph 9, the proposed rule is 
changed to require that a contractor must consider the totality of the 
circumstances when determining what constitutes a ``reasonable amount 
of time'' in the context of available vacant positions.
    Additionally, the proposed rule changes the reference to ``Sec.  
60-300.2(o)'' in paragraph 1 of Appendix A to ``Sec.  60-300.2(t),'' 
and changes the references to ``Sec.  60-300.2(t)'' in paragraphs 5 and 
8 of Appendix A to ``Sec.  60-300.2(u).'' This is to reflect the 
revised alphabetical structure of the definitions section in the 
proposed rule, as discussed in Sec.  60-300.2, above. The proposed 
regulation also replaces the term ``VEVRAA'' with ``Section 4212'' for 
the reasons set forth in the discussion of Sec.  60-300.1.

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

    The proposed rule amends Appendix B consistent with the proposed 
changes to the self-identification regulation found at Sec.  60-300.42. 
The first paragraph is amended simply to include detailed definitions 
of the four types of classifications of protected veterans. These 
definitions are to be included in a contractor's invitation to self-
identify either at the pre-offer (proposed Sec.  60-300.42(a)) or post-
offer (proposed Sec.  60-300.42(b)). We propose this change to clarify 
for the contractor and for applicants exactly which categories of 
veterans are protected by part 60-300.
    The second paragraph of the Appendix contains the suggested model 
language for the self-identification of protected veterans. The current 
language has models to be used if they are being distributed to non-
disabled protected veterans exclusively, disabled veterans exclusively, 
or to all protected veterans. In keeping with the proposed changes in 
Sec.  60-300.42, we propose amending the second paragraph to include 
two models: One that will be given to all applicants at the pre-offer 
stage, and one that will be given at the post-offer stage to all 
individuals who have been offered employment by the contractor. For the 
pre-offer stage, the invitation refers to the definitions for each of 
the classifications of protected veterans and invites applicants to 
identify if they belong to any one (or more) of them generally. It does 
not provide for individuals to self-identify as a particular type of 
protected veteran (e.g., a qualified disabled veteran). For the post-
offer stage, the invitation again refers to the definitions for each of 
the classifications of protected veteran and then invites applicants to 
indicate to which specific classifications of protected veteran they 
belong.
    For both the pre-offer and post-offer invitations, we have proposed 
new language explaining to applicants that the information is being 
requested in order to measure the contractor's outreach and recruitment 
efforts required under part 60-300. This replaces the current language 
which only inquires whether individuals would like to be included under 
the contractor's affirmative action program. The post-offer invitation 
in Paragraph 2 also incorporates the language in the current paragraph 
7 of the Appendix, which requests that disabled veterans describe 
possible workplace accommodations, with the exception of replacing 
``elimination of certain duties relating to the job'' with ``changes in 
the way the job is customarily performed.'' We propose this change 
merely to clarify the nature of the interactive process, and to 
eliminate any confusion that might exist regarding the existing 
language that ``elimination of certain duties'' could be read to 
include eliminating essential functions of the job. It is a change in 
verbiage only, and does not alter the substantive obligations of the 
contractor or applicant in the interactive process.
    Finally, the proposed regulation also replaces the term ``VEVRAA'' 
with ``Section 4212'' for the reasons set forth in the discussion of 
Sec.  60-300.1.

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

    The proposed rule deletes Appendix C and moves the its content, 
with some edits, to Sec.  60-300.44(b). See the Section-by-Section 
Analysis of Sec.  60-300.44, supra, for further discussion.

Regulatory Procedures

Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.

The Need for the Regulation

    The guiding principle and overall benefit of this proposed 
regulation is plain: To facilitate the process of connecting veteran 
job-seekers with contractor employers who are seeking to hire protected 
veterans and helping these veterans succeed once they are

[[Page 23381]]

employed. As we have stated previously in this NPRM, the framework 
articulating a contractor's responsibilities with respect to 
affirmative action, recruitment, and placement have remained largely 
unchanged since the Section 4212 implementing rules were first 
published in 1976. Meanwhile, increasing numbers of veterans are 
returning from tours of duty in Iraq, Afghanistan, and other places 
around the world. These veterans possess valuable skills that are 
highly sought after in the job market. However, veterans face 
substantial obstacles in finding employment upon leaving the service 
and returning home. Addressing the barriers our veterans face upon 
returning to civilian life, particularly with regard to employment, is 
a high priority of the current Administration and, as discussed in the 
background section, has been the focus of a number of Federal efforts.
    To ascertain how OFCCP could assist veterans in their search for 
employment, and facilitate the contractor's satisfaction of affirmative 
action obligations designed to employ more veterans, OFCCP conducted 
multiple town hall meetings, webinars, and listening sessions with the 
public to determine how we could increase the employment opportunities 
for qualified protected veterans with Federal contractors. Based upon 
the information OFCCP received, we identified specific changes that 
could be made to the implementing regulations of Section 4212 that 
would help increase employment opportunities for veterans.
    The changes set forth in this proposal create four broad categories 
of benefits. First and foremost, the proposed changes will connect job-
seeking veterans with contractors looking to hire. Currently, there is 
much confusion regarding exactly how and with whom the contractor must 
list its jobs. Therefore, as an initial matter, the proposal clarifies 
the mandatory job listing requirements and requires the contractor to 
provide additional, regularly updated information to employment service 
delivery systems to ensure its job openings are listed accurately. This 
will help to ensure that veterans can easily learn about all available 
jobs with Federal contractors in their state. The proposal also helps 
to ensure that the contractor can find veterans, by requiring the 
contractor to engage in recruitment efforts and enter into linkage 
agreements with several veterans' employment sources (many of which are 
specifically listed by OFCCP in the proposed rule), while allowing the 
contractor the flexibility to determine the sources that work best.
    Second, many of the proposed changes ensure that the contractor 
understands and effectively communicates its affirmative action 
obligations to its workforce and the other entities with which it does 
business. While bringing job-seeking veterans and employers together is 
an important first step, it is equally important that the contractor, 
its employees, and veteran applicants understand the protections and 
benefits of Section 4212. Accordingly, the proposed rule seeks to 
promote this clear communication in several ways, including:
     Holding annual meetings (whether in-person, or via webinar 
or videoconferencing) with all employees to discuss the AAP, 
contractor/individual responsibilities, and individual employee 
opportunities for advancement;
     Holding meetings with executive, management, and 
supervisory personnel to explain the intent of the AAP and 
responsibilities in implementing it; and discussing the policy at 
employee orientation and training programs.
    These steps will facilitate a greater understanding of the purpose 
of the affirmative action policies among the contractor's employees, 
and will enhance the visibility and importance of affirmative action to 
the recruitment, hiring, and advancement of protected veterans. The 
proposed rule will also promote clearer communication of Section 4212 
obligations by:
     Providing notices of rights under Section 4212 in 
accessible formats for those working offsite (i.e., electronically-
accessible postings) as well as those with visual impairments, so that 
all parties understand their respective rights and obligations under 
the law;
     Requiring the contractor to review its personnel processes 
on an annual basis, and to document personnel actions taken with regard 
to protected veterans to provide greater transparency between the 
contractor, its applicants/employees, and OFCCP as to the reasons for 
the contractor's personnel actions; and
     Requiring the contractor to meet with and/or otherwise 
send notification of its AAP obligations to third parties with which it 
does business, such as union officials and subcontractors.
    Third, the proposed rule provides increased mechanisms by which the 
contractor can assess its affirmative action efforts. Until now, the 
contractor had few objective measures by which it could measure the 
extent to which the resources spent on AAP were effective or could be 
used most effectively. To that end, the proposed rule requires the 
contractor to collect data--and OFCCP to provide some additional data--
by which the contractor may more accurately assess its efforts. This 
includes collecting data on referrals and applicants so the contractor 
knows how many protected veterans it is reaching. The contractor will 
be able to use this information, as well as other veteran employment 
data provided by OFCCP, to set benchmarks by which the contractor can 
objectively measure its recruitment efforts and determine which ones 
are most fruitful in attracting qualified protected veteran candidates.
    Finally, the proposed rule's changes to the manner in which OFCCP 
conducts its compliance reviews will benefit both protected veterans 
and the contractor. These changes include a greater emphasis on 
identifying electronic data that OFCCP can review, greater flexibility 
in where reviews take place, and a new procedure for a pre-award 
compliance review. The emphasis on using electronic data and 
flexibility will allow OFCCP to complete reviews far more efficiently.

Discussion of Impacts

    OFCCP has separately determined the costs of compliance with those 
requirements of Section 4212 falling under the scope of the Paperwork 
Reduction Act. See Analysis of Paperwork Reduction Act burden, infra. 
Additional costs outside the scope of the PRA, which are new 
obligations in the proposed rule, are as follows:
    60-250.44(f)(3)/60-300.44(f)(3): As discussed in the Section-by-
Section Analysis of this paragraph, the proposed rule would require the 
contractor to review the effectiveness of its outreach and recruitment 
efforts on an annual basis. The general purpose of this self-assessment 
is to ensure that the contractor think critically about its recruitment 
and outreach efforts, and requiring it will allow the contractor to 
look at its measurable accomplishments, maintain methods that are 
successful in recruiting protected veterans, and reconsider 
unproductive methods. OFCCP estimates that this annual review will take 
approximately 20 minutes. OFCCP further estimates that 1% of the 
108,288 Federal contractor establishments are first-time contractors 
during an abbreviated AAP year, and therefore would be unable to 
complete an annual outreach and recruitment effort.
    60-250.44(g)/60-300.44(g): As discussed in the Section-by-Section 
Analysis of this paragraph, the proposed rule would require holding 
annual meetings (either in person, or in

[[Page 23382]]

technology-adapted formats such as webinars or videoconferencing) with 
all employees to discuss the AAP, contractor/individual 
responsibilities, and individual employee opportunities for 
advancement; meetings with executive, management, and supervisory 
personnel; and discussing the policy at employee orientation and 
training programs. Frequent establishment-wide training on affirmative 
action issues is a benefit to both the contractor and protected 
veterans, as it will enhance the visibility and facilitate a greater 
understanding of the importance of affirmative action to the 
recruitment, hiring, and advancement of protected veterans, creating a 
culture of compliance. It will also help to ensure that protected 
veterans themselves are aware of, and better able to avail themselves 
of, their rights. To decrease contractor burden, OFCCP will provide a 
sample training module. OFCCP estimates that 90% of contractors, or 
97,459, will use this sample training, and that 10% of contractors, or 
10,829, will create their own training. OFCCP further estimates that 
downloading the sample training will take 15 minutes and that creating 
training will take 10 hours. The average burden per contractor 
establishment would be the following: 97,459 x 15/60/108,288 = .2 
hours; 10,829 x 10/108,288 = 1 hour. OFCCP estimates an average of 1.2 
hours per contractor establishment for compliance with this 
requirement.
    60-250.44(j)/60-300.44(j): As discussed in the Section-by-Section 
Analysis of this paragraph, the proposed rule would also require 
specific training for those involved in personnel decisions to ensure 
that they are making such decisions in compliance with Section 4212, 
detailing specific topics that must be addressed. Once again, training 
on these issues will benefit the contractor and veterans by 
facilitating a greater understanding of the purpose of the affirmative 
action plan among decision makers for the contractor, and will enhance 
the visibility and importance of affirmative action to the recruitment, 
hiring, and advancement of protected veterans. Furthermore, proactive 
training on these issues holds the real promise of reducing the number 
of Section 4212 violations. OFCCP estimates a total of 2 hours per 
contractor establishment for compliance with this requirement.
    60-250.45/60-300.45: As discussed in the Section-by-Section 
Analysis of this paragraph, the proposed rule would require the 
contractor to establish benchmarks, based on a mix of data collected by 
the contractor and the Department, as well as a subjective component to 
allow the contractor to take into account any unique aspects of the 
nature of the contractor's job openings and/or its location. This 
requirement benefits the contractor by providing a marker by which they 
can quantitatively measure the success of their outreach and 
recruitment efforts. OFCCP estimates (for the portion of this 
requirement not covered by the PRA analysis, infra) a total of 1 hour 
per contractor establishment for compliance with this requirement.
    The estimated annualized cost to respondent contractors is based on 
Bureau of Labor Statistics data in the publication ``Employer Costs for 
Employee Compensation'' (June 2010), which lists total compensation for 
management, professional, and related occupations as $48.74 per hour 
and administrative support as $23.25 per hour. OFCCP estimates that 52% 
percent of the burden hours will be management, professional, and 
related occupations and 48% percent will be administrative support. We 
have calculated the total estimated annualized cost for the obligations 
described above (i.e., those that do not fall under the scope of the 
Paperwork Reduction Act) as follows:

Mgmt. Prof.: 108,288 contractors x 4.5 hours x .52 x $48.74/hr = 
$12,350,420
Adm. Supp.: 108,288 contractors x 4.5 hours x .48 x $23.25/hr = $ 
5,438,223
Total annualized cost estimate = $17,788,643
Estimated annual average cost per establishment is: $17,788,643/108,288 
= $164

    OFCCP has calculated the annual average cost per establishment for 
complying with those provisions that fall under the Paperwork Reduction 
Act as $396 per contractor establishment. See Paperwork Reduction Act 
discussion, infra. This means the total estimated annual cost per 
establishment of the proposed rule is approximately $560. However, 
additional elements of the proposed rule should reduce the cost of 
compliance for the contractor. For instance, OFCCP estimates that 
proposed provisions allowing for electronic posting of employee rights 
under Section 4212 could save the contractor 10 minutes of 
administrative compliance time per year (0.17 hours x $23.25/hr = $4 
annual savings per year). Proposals for streamlined compliance review 
mechanisms and greater focus on reviewing electronic records, rather 
than paper (see Section-by-Section Analysis of 60-250.60/300.60, 60-
250.81/300.81), are also designed to reduce the time the contractor and 
OFCCP spend on compliance and enforcement.
    In short, OFCCP believes that the myriad benefits discussed in the 
Section-by-Section analysis and in this section--bringing veterans and 
contractors together, ensuring that those in the workplace understand 
the respective obligations under Section 4212, providing the contractor 
a tool to measure its affirmative action efforts through increased data 
collection, and more efficient compliance reviews--more than makes up 
for the cost we have calculated. OFCCP invites comments from 
stakeholders on the cost/benefit analysis included in this section.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., (RFA) 
requires agencies promulgating proposed rules to prepare an initial 
regulatory flexibility analysis and to develop alternatives wherever 
possible when drafting regulations that will have a significant impact 
on a substantial number of small entities. The focus of the RFA is to 
ensure that agencies ``review rules to assess and take appropriate 
account of the potential impact on small businesses, small governmental 
jurisdictions, and small organizations, as provided by the [RFA].''
    Based on the analysis below, in which OFCCP has estimated the 
burdens to covered small contractors and subcontractors in complying 
with the requirements contained in this proposed rule, OFCCP believes 
that this rule will not have a significant economic impact on a 
substantial number of small Federal contractors and subcontractors but 
invites comments on its analysis, and requests that commenters provide 
any additional data they may have on costs and benefits.
    The FY 2009 Equal Employment Data System Report (EEDS), which 
compiles information on Federal contractors for OFCCP, showed that 
there were 108,031 Federal contractor and subcontractor establishments 
under OFCCP jurisdiction. EEDS information concerning the number of 
contractor establishments is derived from the EEO-1 Report, which the 
Equal Employment Opportunity Commission submits to OFCCP annually. 
OFCCP also includes 257 post-secondary institutions under its 
jurisdiction, for a total of 108,288 contractor establishments. Based 
on data analyzed in the Federal Procurement Data System (fpds.gov), 
which compiles data about types of

[[Page 23383]]

contractors, of these 108,288 contractor establishments, approximately 
35% would be ``small entities'' as defined by the Small Business 
Administration (SBA) size standards.\2\ It should be noted that this 
number of ``establishments'' would likely be much larger than the 
number of ``entities'' or ``contractors.'' Entities generally equate to 
businesses, many of which may in fact have multiple establishments. 
However, given lack of any other data on the number of small Federal 
contractors, for the purposes of the RFA analysis OFCCP estimates that 
this rule will affect 37,901 small Federal contractors.
---------------------------------------------------------------------------

    \2\ The Federal Procurement Data System compiles data regarding 
small business ``actions'' and small business ``dollars'' using the 
criteria employed by SBA to define ``small entities.'' In FY 2008, 
small business actions accounted for 50% of all Federal procurement 
action. However, deriving a percentage of contractors that are small 
using the ``action'' data would overstate the number of small 
contactors because contract actions reflect more than just 
contracts; they include modifications, blanket purchase agreement 
calls, task orders, and Federal supply schedule orders. As a result, 
there are many more contract actions than there are contracts or 
contractors. Accordingly, a single small contractor might have 
hundreds of actions, e.g., delivery or task orders, placed against 
its contract. These contract actions would be counted individually 
in the FPDS, but represent only one small business.
    Also reflected in FPDS, in FY 2008, small business ``dollars'' 
accounted for 19% of all Federal dollars spent. However, deriving a 
percentage of contractors that are small using the ``dollars'' data 
would understate the number of small contractors. Major acquisitions 
account for a disproportionate share of the dollar amounts and are 
almost exclusively awarded to large businesses. The top five Federal 
contractors, all large businesses, accounted for over 20% of 
contract dollars in FY 2008. As a result, because the largest 
Federal contractors disproportionately represent ``dollars'' spent 
by the Federal government, the FPDB's data on small ``dollars'' 
spent understates the number of small entities with which the 
Federal government does business.
    The Department concludes that the percentage of all Federal 
contractors that are ``small'' is likely between 19% and 50%. The 
upper and lower bounds are derived from the FPDS figures on small 
``actions'' and small ``dollars.'' The mean of these two percentages 
is 35%, and the Department has used this figure to estimate how many 
of all Federal contractors are ``small entities'' in SBA's terms.
---------------------------------------------------------------------------

    The primary goal of this NPRM is increased affirmative action to 
employ and advance in employment protected veterans, including 
proactive recruitment of protected veterans for jobs with Federal 
contractors and increased awareness by Federal contractors' employees 
(including veterans) and managers of the non-discrimination and 
affirmative action protections afforded protected veterans. The 
benefits from this proposal (discussed in more detail throughout the 
Section-by-Section Analysis and in the discussion of Executive Order 
12866, supra), particularly would accrue to veterans who might not have 
known about job openings or might not have been hired or promoted. As 
there were almost a million veterans unemployed in 2009 and many others 
not in the labor force who would likely want to be employed, increased 
efforts to employ veterans could help a significant number of veterans. 
The contractor also will benefit from access to a well-trained, job-
ready employment pool.
    This goal of increased employment of protected veterans is achieved 
through the changes to Part 60-300 outlined below. Conforming changes 
are also proposed to 41 Part 60-250 in the event that OFCCP learns of 
Federal contracts that are currently in effect that were entered into 
before December 1, 2003 and not modified since. For purposes of this 
analysis, even if there are a few such contracts still in effect, the 
number of contractors affected would be so small that any costs and 
benefits resulting from changes to Part 60-250 would be de minimis.
    The significant benefits to protected veterans, as well as the 
contractor, have been discussed extensively in the Section-by-Section 
Analysis section of this NPRM and in the discussion of this proposal's 
conformity with Executive Order 12866. Generally, the proposed rule 
will benefit veterans and the contractor by: Providing effective 
mechanisms, such as refined mandatory job listing requirements and 
linkage agreements with veteran-related organizations, so that 
qualified veterans and contractors find each other to their mutual 
benefit; ensuring that those in the workplace understand the respective 
obligations under Section 4212; providing the contractor with tools, 
through increased data collection, to quantifiably measure their 
affirmative action efforts and adjust them for maximum effect; and more 
efficient compliance reviews. The estimated costs associated with this 
proposal have been detailed in the sections discussing Executive Order 
12866 and the Paperwork Reduction Act, herein. Below is a summary of 
those costs that will affect small Federal contractors, as defined in 
this section.

PRA Costs

Mgmt. Prof. 406,788 hours \3\ x .52 x $48.74 = $10,309,961
---------------------------------------------------------------------------

    \3\ This figure comes from taking the total burden for all 
contractors in the PRA section (1,162,251 hours) and multiplying it 
by 35%, which is our calculation of the number of contractors which 
can be classified as ``small Federal contractors'' as detailed in 
this section.
---------------------------------------------------------------------------

Adm. Supp. 406,788 hours x .48 x $23.25 = $4,539,754
Operations & Maintenance Cost (for 35% of contractors) $146,345
Total annualized cost estimate = $14,996,060
Estimated average cost per establishment is: $14,996,060/37,901 = $396

Non-PRA Costs

Mgmt. Prof.: 170,554 hours \4\ x .52 x $48.74/hr = $4,322,657
---------------------------------------------------------------------------

    \4\ This figure comes from taking the total burden for all 
contractors in the EO 12866 section (4.5 annual hours per contractor 
establishment, multiplied by 108,288 total Federal contractor 
establishments, for a total burden for all contractors nationwide of 
487,296 hours), and multiplying it by 35%, which is our calculation 
of the number of contractors which can be classified as ``small 
Federal contractors'' as detailed in this section.
---------------------------------------------------------------------------

Adm. Supp.: 170,554 hours x .48 x $23.25/hr = $1,903,383
Total annualized cost estimate = $6,226,040
Estimated annual average cost per establishment is: $6,226,040/37,901 = 
$164
    Therefore, the total estimated annual cost to small contractors 
nationwide is $21,222,100, or approximately $560 per small contractor.
    The same obligations bind prime contractors and subcontractors 
under OFCCP jurisdiction. Therefore, for the purpose of determining 
time spent on compliance, OFCCP will not differentiate between the 
obligations of prime contractors and subsequent tiers of 
subcontractors; OFCCP assumes that all contractors, whether prime 
contractor or subcontractor, will spend equivalent amounts of time 
engaging in this compliance activity.
    When considering the potential economic impact of a proposed 
regulation, one important indicator is the cost of compliance in 
relation to revenue of the entity or the percentage of profits 
affected. Id. The universe of affected entities is all Federal 
contractors and the universe of affected small entities is all small 
entity contractors with 50 or more employees (37,901). The cost of this 
rule per entity ($560) is not likely to have a significant economic 
impact for any (or a substantial number) of these small contractors. 
Although the number of small Federal contractors, at 37,901, may 
represent a substantial number of Federal contractors and 
subcontractors, OFCCP concludes that this economic impact on individual 
contractors is not significant. Further, the 2004 U.S. Census Bureau 
Statistics about Business Size (including Small Business), Employment 
Size of Firms, Table 2a, \5\

[[Page 23384]]

indicate there are 526,355 Employer Firms with 20-99 employees compared 
to 5,255,844 firms with 0 to 19 employees. Employer firms with 20 to 
500 or more employees equal 629,940 employers firms. Therefore, U.S. 
employer firms with 20 to 500 employees represents 11.9% of the total 
employer firms. As stated earlier, the threshold for the affirmative 
action provisions of this NPRM is 50 or more employees, which will 
affect approximately 11.9% of the employer firms.
---------------------------------------------------------------------------

    \5\ See http://www.census.gov/epcd/www/smallbus.html.
---------------------------------------------------------------------------

    Therefore, under 5 U.S.C. 605, OFCCP believes that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entity contractors but invites comments on its 
analysis.

Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public 
understands the Department's collection instructions; respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    The Department notes that a Federal agency cannot conduct or 
sponsor a collection of information unless it is approved by OMB under 
the PRA, and displays a currently valid OMB control number, and the 
public is not required to respond to a collection of information unless 
it displays a currently valid OMB control number. Also, notwithstanding 
any other provisions of law, no person shall be subject to penalty for 
failing to comply with a collection of information if the collection of 
information does not display a currently valid OMB control number. 
Until any final regulations become effective and OFCCP publishes a 
notice announcing OMB's approval of these proposed information 
collections, they will not take effect.
    The information collection requirements contained in the existing 
Section 4212 regulations, with the exception of those related to 
complaint procedures, are currently approved under OMB Control No. 
1250-0003 (Recordkeeping and Reporting Requirements-Supply and Service) 
and OMB Control No. 1250-0001 (Construction Recordkeeping and 
Reporting). The information collection requirements contained in the 
existing complaint procedures regulation are currently approved under 
OMB Control No. 1250-0002.
    The proposed rule contains information collections that are subject 
to review by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995. This proposal includes several new 
requirements shown below with their respective burden estimates.
    The information collections discussed below relate to Federal 
contractor and subcontractor responsibilities under 38 U.S.C. 4212 as 
amended and its implementing regulations at 41 CFR 60-250 and 41 CFR 
60-300. OFCCP invites the public to comment on whether the proposed 
collections of information:
    (1) Is necessary to the proper performance of the agency, including 
whether the information will have practical utility;
    (2) Estimates the projected burden, including the methodology and 
assumptions used, accurately; and
    (3) Is structured to minimize the burden of the collection of 
information on those who are to respond, including through the use or 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology (e.g. 
permitting electronic submission of responses.)
    Where estimates are provided or assumptions are described, 
contractors and other members of the public are encouraged to provide 
data they have that could help OFCCP refine the estimates of amount of 
time needed to fulfill specific requirements.

 60-250.5/300.5

    [cir] Contractor must provide job vacancy information to 
appropriate employment service delivery system (ESDS) in usable 
format (] 2 of EO Clause).
     The contractor's mandatory job listing obligations, 
which is required by 38 U.S.C. 4212(a)(2)(A) and promulgated in 
OFCCP's regulations at FR, Vol. 43, No. 204--Friday, October 20, 
1978, requires federal contractors and subcontractors to list their 
job opening with the state or local employment service delivery 
system. To reduce the burden on the contractor, it has the 
flexibility to list its job openings at the state or local 
employment service delivery system concurrently with the 
contractor's use of any other recruitment source or effort. Further, 
to reduce the burden, the mandatory job listing requirement need not 
include .(1) executive and top management positions, (2) positions 
that will be filled from within the contractor's organization, and 
(3) positions lasting three days or less.
     The contractor must provide state or local employment 
service delivery system information that is sufficient to carry out 
its responsibilities under VEVRAA to give protected veterans 
priority referrals to federal contractor employment openings. This 
has always been a requirement under Section 4212 and its 
regulations. OFCCP estimates that the required gathering of records, 
reporting the job listing, and recordkeeping would take 15 minutes 
per job listing. The FY 2009 Equal Employment Data System Report 
(EEDS), which compiles information on Federal contractors for OFCCP, 
showed that there were 108,031 Federal contractor and subcontractor 
establishments under OFCCP jurisdiction. EEDS information concerning 
the number of contractor establishments is derived from the EEO-1 
Report, which the Equal Employment Opportunity Commission submits to 
OFCCP annually. OFCCP also includes 257 post-secondary institutions 
under its jurisdiction, for a total of 108,288 contractor 
establishments. The number of listings provided by contractors may 
vary from year to year, from a low of zero to a high of one per 
month. OFCCP estimates that on average a contractor will provide 2 
listings annually, or 30 minutes. Therefore, OFCCP estimates 108,288 
x 30/60 = 54,144 total Federal contractor hours for gathering of 
records, reporting the job listing, and recordkeeping.
    [cir] Contractor must provide ESDS additional information, 
updated on an annual basis (]4 of EO Clause) The current regulations 
require that the contractor provide the appropriate state employment 
service with the name and location of each of the contractor's 
hiring locations. The proposed regulations require that the 
contractor provide the state employment service with the following 
additional information: (1) Its status as a Federal contractor; (2) 
contact information for the contractor hiring official at each 
location in the state; and (3) its request for priority referrals by 
the state of protected veterans for job openings at all locations 
within the state. This information shall be updated on an annual 
basis. These three additional items are proposed in light of 
feedback received from state employment services and congressional 
testimony citing concerns about appropriate interface between 
federal contractors and state and local employment service delivery 
system staff. Using some form of electronic means (email, fax, etc), 
OFCCP estimates a total of 15 minutes to give the ESDS the 
information newly required by this regulation (status as a federal 
contractor, contact information for the contractor hiring official, 
and the request for priority referrals). The proposed regulation 
also adds a sentence clarifying that, if the contractor uses any 
outside job search organizations (such as a temporary employment 
agency) to assist in its hiring, the contractor must provide the 
state employment service with the contact information for these 
outside job search organizations. OFCCP further estimates 25% of 
contractors, or 27,072, will use outside job search organizations, 
and 5 additional minutes for the contractor to notify state 
employment agencies concerning its outside job search organizations. 
The burden to give

[[Page 23385]]

ESDS additional information is 108,288 x 15/60 = 27,072 hours. The 
burden to notify the state employment service about outside job 
search organizations is 27,072 x 5/60 = 2,256 hours. The sum of 
27,072 + 2,256 = 29,328 total Federal contractor hours.
    [cir] Contractor must maintain records, for five years, of the 
total number of priority referral of veterans, and ratio of veteran 
referrals to total referrals (] 5 of EO Clause). The contractors is 
already required to keep applicant data for either one or two years, 
depending on their size, see 41 CFR 60-300.80, thus the only changes 
proposed are that the contractor calculate the ratio of preferred 
veteran referrals and to maintain these records for an additional 
period of time. According to the ETA 9002 B Quarterly Report from 
July 1, 2008 to June 30, 2009, State employment office staff 
referred 75,657 protected veterans (campaign, special disabled, and 
recently separated veterans) to Federal contractor job vacancies. 
However, some contractors may receive no referrals (and have few or 
no job postings) while others will receive multiple referrals. It is 
expected that computing the ratio for multiple referrals is not 
significantly more time consuming than doing a ratio for a small 
number of referrals. OFCCP estimates that the contractor will take 
30 minutes to analyze the ratio of veteran referrals. Therefore, the 
estimated maximum burden hours associated with calculating the ratio 
of veteran referrals would be 30 x 75,657/60 = 37,829 total Federal 
contractor hours.
    Contractor must include the entire clause verbatim in Federal 
contracts (.5(d), .5(e)) (This is a third party disclosure burden.) 
A contractor may copy/paste the EO Clause from the OFCCP regulations 
into its contracts. Assuming each of the federal contractor 
establishments has a single contract would equal 108,288 times 1 
minute of copy/paste time would equal 108,288 minutes divided by 60 
minutes equals 1,805 total Federal contractor hours.
    [cir] Contractor must provide Braille, large print, or other 
versions of notice so that visually impaired may read the notice 
themselves (] 10 of EO Clause).
     The FY 2008 VETS-100 report identified 62,000 Special 
Disabled Veterans (SDVs). Not all SDVs will normally request and 
accommodation, therefore the estimate is 10% of the SDVs may request 
an accommodation due to visual impairment. OFCCP estimates that it 
takes 5 minutes for the contractor to receive the accommodation 
request and 5 minutes for recordkeeping and providing the notice in 
an alternative format, for a total of 10 minutes per request. 
Therefore, 10 minutes times 6,200 SDVs equals 62,000 minutes divided 
by 60 minutes equals 1,033 total Federal contractor hours.
    [cir] Posting of notice for employees working at a site other 
than the contractor's physical location. (] 10 of EO Clause). OFCCP 
estimates one or more offsite locations at 10% of contractors, or 
10,829, and posting a notice on the company's Web site so that 
offsite employees can access the notice. No additional hours for 
creation of the notice since the notice is already required. OFCCP 
estimates 5 minutes for each contractor to post the notice on its 
Web site. Therefore, 10,829 x 5 minutes/60 = 902 total Federal 
contractor hours.
    [cir] Contractor must state in all solicitations and 
advertisements that it is an EEO employer of veterans (]13 of EO 
Clause). (This is a third party disclosure burden.) The contractor 
already must state that it is an EEO employer due to many state and 
federal requirements, including the Executive Order EEO 
requirements. This revision would simply require the contractor to 
add protected veterans to the list of categories of protected EEO 
groups. OFCCP estimates 1 minute additional burden per contractor, 
or 108,288 x 1 minute/60 = 1,805 total Federal contractor hours.

 60-250.41/300.41

    [ballot] Contractor must inform employees who do not work at 
contractor's physical establishment regarding the availability of 
AAP for review. OFCCP estimates one or more offsite location at 10% 
of contractors, or 10,829, and posting a notice on the company's Web 
site so that offsite employees can access the notice to find out 
about the availably of the AAP to review. OFCCP estimates 5 minutes 
to create this notice. (Posting time is accounted for in above ]10 
of EO Clause, ``Posting of notice for employees working at a site 
other than the contractor's physical location''). Therefore, 10,829 
x 5 minutes/60 = 902 total Federal contractor hours.

 60-250.42/300.42

    [ballot] The proposed regulation would require that the 
contractor invite all applicants to self-identify as a protected 
veteran generally prior to the offer of employment, and invite 
individuals who receive job offers to indicate the particular 
category or categories of protected veteran to which they belong 
(.42(a)). In Appendix B of the proposed regulation, OFCCP provides 
sample invitations to self-identify so that the contractor will not 
have the burden of creating these invitations. We estimate it will 
take 1 minute for the contractor to copy and paste the sample 
invitations to self-identify from the regulations into a separate 
document that it can store electronically and include in electronic 
applications or print out in paper applications as needed. 
Multiplying 1 minute by the 108,288 establishments equals 108,288 
minutes/60 = 1,805 total Federal contractor hours adapting the self-
identification forms in Appendix B for contractor use.
    OFCCP estimates that protected veteran applicants will have a 
minimal burden complying with this proposal in the course of 
completing their application for employment with a contractor--
specifically, providing their separation form, the DD-214, and 
checking the appropriate boxes in the self-identification forms. To 
calculate the total number of protected veteran applicants, OFCCP 
reviewed DOL/ETA's 9002 B Quarterly Reports for the period July 1, 
2008 to June 30, 2009, which shows 75,657 total priority referrals 
to federal contractors nationwide. We therefore estimate 75,657 
applicants. At 1 minute per applicant, the total applicant burden 
would be 75,657 x 1/60 = 1261 total hours for documenting status as 
a protected veteran. Of course, veterans stand to benefit from this 
minimal time spent, as it will notify contractors of their status 
and the possibility that that may benefit from the protections of 
Section 4212. Further, the self-identification process is entirely 
voluntary, and veteran applicants may opt not to participate, and 
thus take on zero burden.
    [ballot] Contractor is required to seek advice of applicants 
regarding reasonable accommodations, when applicable (.42(d)). We 
estimate 1 minute for the contractor to note those applicants that 
have identified as a disabled veteran and to make the initial 
inquiry with the applicant about proper placement and reasonable 
accommodation. The FY 2008 VETS-100 report identified 62,000 Special 
Disabled Veterans (SDVs). Thus, there will be a total of 62,000 
minutes, or 1,033 total Federal contractor hours making this initial 
inquiry. OFCCP is aware that the contractor will undertake time to 
process these requests and keep records of these requests. However, 
processing these requests is covered by the ADA and recordkeeping is 
covered by Section 503 regulations, at 41 CFR 60-741.69.
    OFCCP estimates that disabled veteran applicants will have a 
small amount of burden providing documentation concerning reasonable 
accommodation. The FY 2008 VETS-100 report identified 62,000 Special 
Disabled Veterans (SDVs). Not all SDVs will normally request and 
accommodation. OFCCP estimates 10% of referrals will be associated 
with an accommodation request and that the affected disabled 
veterans will have on hand the needed documentation. Thus the only 
burden will be in providing the documentation to the contractor 
which is estimated to take 1 minute. We therefore estimate 62,000 x 
10% = 6,200 x 1 minute/60 = 103 total hours of burden on certain 
applicants for providing documentation of reasonable accommodation. 
Again, however, disabled veterans stand to benefit from this 
disclosure requirement if they choose to participate, as it is 
intended to help the veteran secure an accommodation that will allow 
him or her to perform the job.
    [ballot] Contractor must maintain self-identification data 
(.42(e)). The contractor was required to maintain self-
identification data prior to this proposed regulation. Reviewing the 
entire data collection process outlined in the first paragraph of 
this section, we estimate that simply maintaining the completed 
self-identification forms will take 1 minute per contractor, or 
108,288 minutes/60 = 1,805 total Federal contractor hours.

 60-250.44/300.44

    [ballot] Contractor must provide Braille, large print, or other 
versions of AA policy statement so that visually impaired may read 
the notice themselves (.44(a)). The FY 2008 VETS-100 report 
identified 62,000 Special Disabled Veterans (SDVs). Not all SDVs 
will normally request and accommodation, therefore the estimate is 
10% of the SDVs may request an accommodation due to visual 
impairment. OFCCP estimates that it takes 5 minutes for the 
contractor to receive the accommodation request and 5 minutes for 
recordkeeping and providing this document

[[Page 23386]]

in an alternative format, for a total of 10 minutes. Therefore, 10 
minutes times 6,200 SDVs equals 62,000 minutes divided by 60 minutes 
equals 1,033 total Federal contractor hours complying with this 
paragraph.
    [ballot] Contractor must review personnel processes annually, 
and is required to go through a specific analysis for doing so which 
would include: (1) Identifying the vacancies and training programs 
for which protected veteran applicants and employees were 
considered; (2) providing a statement of reasons explaining the 
circumstances for rejecting protected veterans for vacancies and 
training programs and a description of considered accommodations; 
and (3) describing the nature and type of accommodations for special 
disabled veterans who were selected for hire, promotion, or training 
programs (.44(b)).
     The contractors needs to identify vacancies as part of 
the review. According to the ETA 9002 B Quarterly Report from July 
1, 2008 to June 30, 2009, State employment office staff referred 
75,657 protected veterans (campaign, special disabled and recently 
separated veterans) to Federal contractor job vacancies. Therefore, 
OFCCP estimates Federal contractors and subcontractors will need to 
identify approximately 75,657 job vacancy listings during the above 
time period times 15 minutes per listing equals 75,657 x 15 minutes 
= 1,134,855 minutes/60 minutes = 18,914 total Federal contractor 
hours for gathering of records and recordkeeping.
     OFCCP estimates 15 minutes per contractor per year to 
identify training programs for veteran applicants and employees, 
which means 15 x 108,288/60 = 27,072 total Federal contractor hours.
     For providing a statement of reasons explaining the 
circumstances for rejecting protected veterans for vacancies and 
training programs and a description of considered accommodations, 
OFCCP estimates 30 minutes per contractor per year, or 30 x 108,288/
60 = 54,144 total Federal contractor hours.
     For describing the nature and type of accommodations 
for disabled veterans who were selected for hire, promotion, or 
training programs. The FY 2008 VETS-100 report identified 62,000 
Special Disabled Veterans (SDVs). Thus, there will be a total of 
62,000 inquiries. OFCCP estimates 10% of referrals leading to an 
accommodation request, and 30 minutes per accommodation request. 
Therefore, the hours would be 30 x 62,000 x 10%/60 = 3,100 total 
Federal contractor hours.
    [ballot] Contractor must review physical and mental job 
qualifications annually to ensure that they are job-related and 
consistent with business necessity (.44(c)(1)). This provision 
exists in the current VEVRAA regulations (as well as the Section 503 
regulations); the only difference is that the proposed regulations 
call for the review to occur ``annually,'' rather than 
``periodically.'' Therefore, all existing or previous contractors 
should have experience in performing the required review.
    For those contractors who have not previously performed the 
required review, OFCCP estimates that 1% of federal contractors are 
first-time contractors required to develop initial standards for the 
employee workforce. Therefore, 108,288 total federal contractors 
times 1% equals 1,083 contractors. According to the Bureau of Labor 
Statistics (BLS), the 2010 Standard Occupational Classification 
(SOC) system is used by Federal statistical agencies to classify 
workers into occupational categories for the purpose of collecting, 
calculating, or disseminating data. All workers are classified into 
one of 840 detailed occupations according to their occupational 
definition. To facilitate classification, detailed occupations are 
combined to form 461 broad occupations, 97 minor groups, and 23 
major groups. Detailed occupations in the SOC with similar job 
duties, and in some cases skills, education, and/or training, are 
grouped together. OFCCP estimates that the average federal 
contractor will only have 20% of the 461 broad occupations in their 
workforce, therefore, on average, the contractor will have 92 
occupations for which to conduct an annual review. OFCCP estimates 
that the contractor will take 10 minutes to review mental and 
physical job qualifications for each of the average 92 occupations. 
Therefore, 92 occupations times 10 minutes equals 920 minutes, 
multiplied by the estimated 1,083 first time contractors/60 minutes 
per hour equals a total of 16,606 Federal contractor hours for 
first-time contractors spent complying with this paragraph.
    OFCCP estimates that 90% of contractors, or 97,459, will have no 
changes to their job descriptions in a given year. Therefore, for 
contractors that have already performed the required review as set 
forth in the current regulations, and have not changed the job 
descriptions or physical/mental job qualifications, OFCCP estimates 
that the time required to update the reviews is 0.5 minutes per job 
title x 92 occupations = 46 x 97,459/60 = 74,719 total Federal 
contractor hours.
    OFCCP estimates that the remaining 9% of contractors, or 9,746, 
will have some changes to their job descriptions in a given year. We 
estimate this 9% of contractors will have changes to an average of 
20% of their job titles, and that it will take 10 minutes on average 
to review the mental and physical job qualifications for each. 
Therefore, 10 minutes x (20% of 92 job titles) x 9,746 contractors/
60 minutes per hour = 29,888 total Federal contractor hours.
    [ballot] Contractor must document the results of its annual 
review of physical and mental job qualifications, and document any 
employment action taken on the basis of a believed ``direct 
threat.'' (.44(c)).
    OFCCP estimates that it will take the contractor 1 minute per 
job qualification to save the information for recordkeeping 
purposes. Therefore, 1 minute x 92 occupations equals 92 minutes x 
108,288 contractors/60 minutes equals 166,042 total Federal 
contractor hours.
    [ballot] Contractor must enter into linkage agreement with 
nearest LVER, one of the organizations listed in (f)(1), and an 
organization listed in the National Resource Directory (.44(f)(1)).
    Therefore, each contractor must enter into 3 linkage agreements. 
Linkage Agreement means an agreement describing the connection 
between the contractor and appropriate recruitment and/or training 
sources.
    The contractor has a variety of ways to establish VEVRAA linkage 
agreements. The contractor can receive nationwide assistance from 
OFCCP Compliance Officers (COs) to help it establish the 3 linkage 
agreements. Secondly, during the normal course of an OFCCP 
compliance review, the CO will contact all appropriate linkage 
resources to obtain specific information on availability of 
applicants and potential trainees for positions in the contractor's 
labor force. If possible, the CO will arrange a meeting between the 
recruitment/referral resources and the contractor.
    Where a resource indicates that it can provide applicants or 
trainees, the CO will include the contractor's commitment to utilize 
the linkage source along with other actions in the Letter of 
Commitment or in the Conciliation Agreement.
    OFCCP estimates that 30% of the contractors, or 32,486, will 
accept OFCCP assistance to help set up their linkage agreements and 
it will take these contractors on average 1.5 hours to establish one 
new linkage agreement. For the remaining 75,802 contractors, OFCCP 
estimates that establishing a new linkage agreement will take an 
average of 5.5 hours. Beyond the first year after this rule becomes 
effective, it is estimated the contractor will set up one new 
agreement a year. It is estimated that maintaining a single, ongoing 
linkage agreement will take an average of 15 minutes for all 108,288 
contractors.
    For those contractors setting up linkage agreements on their 
own, OFCCP estimates that on average, a contractor will establish 
one new agreement and maintain two ongoing agreements in a given 
year, which would be 5.5 hours + .25 hours + .25 hours = 6 hours. If 
the contractor establishes linkage agreements with OFCCP's 
assistance, we estimate an annual average of 1.5 hours per 
contractor to establish a new linkage agreement and .25 hours to 
maintain each of the two ongoing linkage agreements, which would be 
1.5 hours + .25 hours + .25 hours = 2 hours. Therefore, 6 hours 
times 75,802 contractors equals 454,812 hours, and 32,486 times 2 
hours equals 64,972 hours, for a total of 519,784 Federal contractor 
hours to establish and maintain three linkage agreements under the 
proposed NPRM.
    [ballot] Contractor must send written notification of company 
AAP policies to subcontractors, vendors, and suppliers (.44(f)(1)).
    OFCCP estimates that it would take the contractor 5 minutes to 
prepare the notification and notify its subcontractors via the 
Internet in a group e-mail, and 1 minute to add or subtract any 
additions or deletions to the group. Therefore, 6 minutes per 
contractor times 108,288 equals 649,728 minutes, divided by 60 
minutes equals 10,829 total Federal contractor hours.
    [ballot] Contractor must document its review outreach and 
recruitment efforts (.44(f)(3)).
    OFCCP estimates that documenting this review of outreach and 
recruitment will take 5 minutes annually. OFCCP further estimates 
that 1% of federal contractors are first-time contractors during an 
abbreviated AAP year,

[[Page 23387]]

therefore would not be able to complete an annual outreach and 
recruitment effort. Therefore, reducing the 108,288 by 1% (1,083 
contractors) equals 107,205 contractors, at 5 minutes each equals 
536,025 minutes, or 8,934 total Federal contractor hours. The burden 
and cost of actually conducting the review does not fall under the 
PRA, and is instead set forth in the Sections on Executive Order 
12866 and the Regulatory Flexibility Act.
    [ballot] Contractor must document (f)(1) linkage agreements and 
maintain these documents for 5 years (.44(f)(4)).
    Since establishing a linkage agreement includes its 
documentation, there is no additional burden for this paragraph 
beyond that already set forth in the burden calculation for 
.44(f)(1).
    [ballot] Contractor is required to undertake several efforts to 
internally disseminate its EEO policy, including, if the contractor 
is a party to a collective bargaining agreement, meeting with union 
officials to inform them of the policy. (This is a third party 
disclosure burden). (.44(g)):
    The January 22, 2010 Bureau of Labor Statistics News Release 
states that in 2009, union membership was 12.3%. In its most recent 
Supply and Service (S&S) PRA Justification, OFCCP estimated 30 
minutes composition time for union notification. For this NPRM, we 
estimate 15 minutes preparation for this new notification 
requirement, as contractors party to a collective bargaining 
agreement already have a notification template in place. We also 
estimate 15 additional minutes to meet with union officials as they 
already do so in S&S. The total third party disclosure burden hours 
would be 108,288 x 12.3% x 30 minutes/60 = 6,660 total Federal 
contractor hours.
    The burden and cost of other requirements of .44(g) does not 
fall under the PRA, and is instead set forth in the Sections on 
Executive Order 12866 and the Regulatory Flexibility Act.
    [ballot] Contractor must document internal dissemination efforts 
in (g), retain these documents for 1-2 years (.44(g)(3))
    Since much of the documentation will occur during the 
preparation time, OFCCP estimates an additional 5 minutes of 
recordkeeping per contractor, which means 5 minutes x 108,288 = 
541,440 minutes/60 = 9,024 total Federal contractor hours.
    [ballot] Contractor must document the actions taken to comply 
with audit and reporting system, retain these documents for 1-2 
years (.44(h))
    Since much of the documentation will occur during the annual 
audit and reporting, OFCCP estimates an additional 5 minutes 
recordkeeping burden per contractor, which means 5 minutes x 108,288 
= 541,440 minutes/60 = 9,024 total Federal contractor hours.
    [ballot] Contractor must identify responsible official for AAP 
on all internal and external communications regarding the AAP 
(.44(i))
    That official should already be in place for current 
contractors. For 1% first time contractors, 108,288 x 1% = 1,083 
contractors, OFCCP estimates 5 minutes per contractor, or 1,083 x 5 
minutes = 5,415 minutes/60 = 90 total Federal contractor hours
    [ballot] Contractor must document its training efforts as set 
forth by the regulation, and maintain these documents as required by 
60-250.80/60-300.80 (.44(j)).
    OFCCP estimates that much of the documentation will be included 
in the training preparation time. OFCCP estimates an additional 5 
minutes recordkeeping time per contractor, which means 5 minutes x 
108,288 = 541,440 minutes/60 = 9,024 total Federal contractor hours. 
The burden and cost of the actual training preparation and 
conducting the training does not fall under the PRA, and is instead 
set forth in the Sections on Executive Order 12866 and the 
Regulatory Flexibility Act.
    [ballot] Contractor must make several quantitative tabulations 
and comparisons using referral data, applicant data, hiring data, 
and the number of job openings; must maintain these records for 5 
years (.44(k))
    (1) The number of priority referrals of veterans protected by 
this part that the contractor received from applicable employment 
service delivery system(s);
    (2) The number of total referrals that the contractor received 
from applicable employment service delivery system(s);
    (3) The ratio of priority referrals of veterans to total 
referrals (referral ratio);
    (4) The number of applicants who self-identified as protected 
veterans pursuant to Sec.  60-300.42(a), or who are otherwise known 
as protected veterans;
    (5) The total number of job openings and total number of jobs 
filled;
    (6) The ratio of jobs filled to job openings;
    (7) The total number of applicants for all jobs;
    (8) The ratio of protected veteran applicants to all applicants 
(applicant ratio);
    (9) The number of protected veteran applicants hired;
    (10) The total number of applicants hired; and
    (11) The ratio of protected veterans hired to all hires (hiring 
ratio).
    The calculations for 5, 6, 7, and 10 are already 
included in the Executive Order AAP. The calculations for 9 
are included in the VETS-100/100A report. Therefore, there is no 
additional burden for 5, 6, 7, 9, and 10.
    The remaining calculations, for 1, 2, 3, 4, 8, and 11, 
OFCCP estimates at 1 minute each per contractor, or 6 minutes 
recordkeeping time per contractor, which means 6 minutes x 108,288 = 
649,728 minutes/60 = 10,829 total Federal contractor hours.

 60-250.45/300.45

[ballot] Contractor must set benchmarks for hiring annually, which 
would include reviewing numerous data sources. Contractor must document 
the benchmarks it sets and the specific criteria it uses, and maintain 
these records for 5 years. The non-documenting burden and cost 
associated with the actual setting of the benchmark does not fall under 
the PRA, and is instead set forth in the Sections on Executive Order 
12866 and the Regulatory Flexibility Act.

    OFCCP estimates 30 minutes recordkeeping time per contractor 
documenting the benchmark calculations, which means 30 minutes x 
108,288/60 = 54,144 total Federal contractor hours.

 60-250.60/300.60

    [ballot] Contractor must provide documents to OFCCP on-site or 
off-site at OFCCP's request, not at the contractor's option 
(.60(a)(3))
    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').

[ballot] New procedure for pre-award compliance evaluations 
(.60(d))

    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').

 60-250.80/300.80

    [ballot] See new 5 year recordkeeping requirements in previous 
sections.
    No additional burden hours as they are included in the 
individuals calculations above.

 60-250.81/300.81

    [ballot] Contractor must provide off-site access to documents if 
requested by OFCCP. Such records are never requested except during 
the course of a specific investigation of a particular contractor.
    Consequently, these hours not included in burden as they are 
excepted under 5 CFR 1320.4(a)(2) (``an administrative action, 
investigation, or audit involving an agency against specific 
individuals or entities'').
    [ballot] Contractor must specify to OFCCP all formats in which 
its records are available.
    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').

    The Department has submitted a copy of the information collections 
associated with this proposed rule to the Office of Management and 
Budget (OMB) in accordance with 44 U.S.C. 3507(d) for review and 
approval. In addition to filing comments with OFCCP, interested persons 
may submit comments about the information collections, including 
suggestions for reducing their burden, to the Office of Information and 
Regulatory Affairs, OMB, New Executive Office Building, 725 17th Street 
NW., Room 10235, Washington, DC 20503. Attention: Desk Officer for DOL/
OFCCP. To ensure proper consideration comments to OMB should reference 
ICR reference number: [insert the number from ROCIS when OFCCP creates 
the package]. Upon receiving OMB approval of the new information, the 
Department will submit non-substantive change request to OMB Control 
Numbers ---- in order to remove regulatory citations for any 
information collected purely under the new collection.

[[Page 23388]]



                                          Table 1--Reporting, Recordkeeping, and Third Party Disclosure Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Section of proposed    One-time burden hours per      Recurring burden hours per     Recurring burden hours per
          Burden description                regulation                 contractor                     contractor                      element
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contractor must provide job vacancy          60-250.5/300.5  .............................  30 minute per contractor.      .............................
 information to appropriate                                                                  Total Hours 54,144.
 employment service delivery system
 (ESDS) in usable format (] 2 of EO
 Clause).
Contractor must provide ESDS                 60-250.5/300.5  .............................  15 minutes reporting burden    .............................
 additional information, updated on                                                          per contractor for ESDS.
 an annual basis (] 4 of EO Clause).                                                         Subtotal Hours 27,072.
                                                                                            5 minutes reporting burden     .............................
                                                                                             per contractor for outside
                                                                                             job search. Subtotal Hours
                                                                                             2,256.
                                                                                            Total Hours 29,328.            .............................
Contractor must maintain records, for        60-250.5/300.5  .............................  .............................  30 minutes per referral.
 five years, of the total number of,                                                                                        Total Hours 37,829.
 priority referral of veterans
 (already must keep applicant data),
 and ratio of veteran referrals to
 total referrals (] 5 of EO Clause).
Contractor must include the entire           60-250.5/300.5  .............................  1 minute third party           .............................
 clause verbatim in Federal contracts                                                        disclosure burden per
 (.5(d), .5(e)).                                                                             contractor. Total Hours
                                                                                             1,805.
Contractor must provide Braille,             60-250.5/300.5  .............................  .............................  10 minutes per accommodation
 large print, or other versions of                                                                                          request. Total Hours 1,033.
 notice so that visually impaired may
 read the notice themselves (] 10 of
 EO Clause)..
Contractor must provide notice to            60-250.5/300.5  5 minutes per contractor.                                     .............................
 offsite employees (] 10 of EO                                Total Hours 902.
 Clause).
Contractor must state in all                 60-250.5/300.5  1 minute third party
 solicitations and advertisements                             disclosure burden per
 that it is an EEO employer of                                contractor. Total Hours
 veterans (] 13 of EO Clause).                                1,805.
Contractor must inform employees who       60-250.41/300.41  5 minutes per contractor.
 do not work at contractor's physical                         Total Hours 902.
 establishment regarding the
 availability of AAP for review (.41).
Contractor must invite all applicants      60-250.42/300.42  .............................  .............................  1 minute per application.
 to self-identify as protected                                                                                              Total Hours 1,805.
 veteran prior to offer of employment
 (.42(a)).
Contractor is required to seek advice      60-250.42/300.42  .............................  .............................  1 minute per accommodation.
 of applicants regarding appropriate                                                                                        Total Hours 1,033.
 accommodations, when applicable
 (.42(d)).
Contractor must maintain self-             60-250.42/300.42  .............................  1 minute per contractor.       .............................
 identification data (.42(e)).                                                               Total Hours 1,805.
Contractor must provide Braille,           60-250.44/300.44  .............................  .............................  10 minutes per accommodation
 large print, or other versions of AA                                                                                       request. Total Hours 1,033.
 policy statement so that visually
 impaired may read the notice
 themselves (.44(a)).

[[Page 23389]]

 
Contractor must review personnel           60-250.44/300.44  .............................  15 minutes per contractor      15 minutes per job listing
 processes annually, and is required                                                         (training) Subtotal Hours      (vacancies). Subtotal Hours
 to go through a specific analysis                                                           27,072.                        18,914.
 for doing so which would include:                                                          30 minutes per contractor      30 minutes per accommodation
 (1) identifying vacancies and                                                               (statement of reasons)         request Subtotal Hours
 training programs; (2) providing a                                                          Subtotal Hours 54,144.         3,100.
 statement of reasons for rejecting                                                                                        Total Hours 103,230.
 protected veterans; and (3)                                                                                               .5 minutes per occupation (no
 describing the nature and type of                                                                                          changes). Subtotal Hours
 accommodations for (special)                                                                                               74,719.
 disabled veterans (.44(b)).                                                                                               10 minutes per occupation,
                                                                                                                            20% of occupations. Subtotal
                                                                                                                            Hours 29,888.
                                                                                                                           Total Hours 121,213.
                                                                                                                           1 minute per occupation.
                                                                                                                            Total Hours 166,042.
Contractor must review physical and        60-250.44/300.44  10 minutes per occupation for  .............................  .............................
 mental job qualifications annually                           first time contractors.
 (.44(c))..                                                   Subtotal Hours 16,606.
Contractor must document the results       60-250.44/300.44  .............................  .............................  .............................
 of its annual review of physical and
 mental job qualifications, and
 document any employment action taken
 on the basis of a believed ``direct
 threat.'' (.44(c)).
Contractor must enter into linkage         60-250.44/300.44  .............................  2 hours per contractor with
 agreement with nearest LVER, one of                                                         OFCCP assistance. Subtotal
 the organizations listed in (f)(1),                                                         Hours 64,972.
 and an organization listed in the
 National Resource Directory
 (.44(f)(1)).
                                                                                            6 hours per contractor         .............................
                                                                                             without OFCCP assistance.
                                                                                             Subtotal Hours 454,812.
                                                                                            Total Hours 519,784.           .............................
Contractor must send written               60-250.44/300.44  .............................  6 minutes per contractor.      .............................
 notification of company AAP policies                                                        Total Hours 10,829.
 to subcontractors, vendors, and
 suppliers (.44(f)(1)).
Contractor must review outreach and        60-250.44/300.44  .............................  5 minutes per contractor (non  .............................
 recruitment efforts on an annual                                                            first time contractors).
 basis and evaluate their                                                                    Total Hours 8,934.
 effectiveness; contractor must
 identify and implement further
 outreach efforts if existing efforts
 are found ineffective (.44(f)(3)).
If the contractor is a party to a          60-250.44/300.44  .............................  30 minutes per unionized       .............................
 collective bargaining agreement it                                                          contractor. Total third
 must meet with union officials to                                                           party disclosure burden
 inform them of the policy (.44(g)).                                                         hours 6,660.
Contractor must document internal          60-250.44/300.44  .............................  5 minutes per contractor.      .............................
 dissemination efforts in (g), retain                                                        Total Hours 9,024.
 these documents for 1-2 years
 (.44(g)(3)).
Contractor must document the actions       60-250.44/300.44  .............................  5 minutes per contractor.      .............................
 taken to comply with audit and                                                              Total Hours 9,024.
 reporting system, retain these
 documents for 1-2 years (.44(h)).

[[Page 23390]]

 
Contractor must identify responsible       60-250.44/300.44  5 minutes per first time
 official for AAP on all internal and                         contractor. Total Hours 90.
 external communications regarding
 the AAP (.44(i)).
Contractor must document its training      60-250.44/300.44  .............................  5 minutes per contractor.      .............................
 efforts as set forth by the reg, and                                                        Total Hours 9,024.
 maintain these documents for 1-2
 years (.44(j)).
Contractor must make several               60-250.44/300.44  .............................  6 minutes per contractor.      .............................
 quantitative tabulations and                                                                Total Hours 10,829.
 comparisons using referral data,
 applicant data, hiring data, and the
 number of job openings; must
 maintain these records for 5 years
 (.44(k)).
Contractor must document the               60-250.45/300.45  .............................  30 minutes per contractor.     .............................
 benchmarks it sets and the specific                                                         Total Hours 54,144.
 criteria it uses, and maintain these
 records for 5 years (.45).
    Total Recordkeeping burden hours.             1,122,653
    Total Reporting burden hours.....                29,328
    Total Third Party burden hours...                10,270
    Total all hours..................             1,162,251
--------------------------------------------------------------------------------------------------------------------------------------------------------


                 Table 2--Burden for Protected Veterans
------------------------------------------------------------------------
                               Section of proposed    Burden hours per
     Burden description            regulation         protected veteran
------------------------------------------------------------------------
Protected veteran must            60-250.42/300.42  1 minute per
 provide DD-214 to                                   individual. Total
 contractor to document                              hours 1,261.
 status as a protected
 veteran.
Disabled veteran must             60-250.42/300.42  1 minute per
 provide documentation for                           individual. Total
 reasonable accommodation.                           hours 103.
    Total Burden Hours......  ....................  1,364.
------------------------------------------------------------------------

    The estimated annualized cost to respondent contractors is based on 
Bureau of Labor Statistics data in the publication ``Employer Costs for 
Employee Compensation'' (June 2010), which lists total compensation for 
management, professional, and related occupations as $48.74 per hour 
and administrative support as $23.25 per hour. OFCCP estimates that 52% 
percent of the burden hours will be management, professional, and 
related occupations and 48% percent will be administrative support. We 
have calculated the total estimated annualized cost as follows:

Mgmt. Prof. 1,162,251 hours x .52 x $48.74 = $29,457,019
Adm. Supp. 1,162,251 hours x .48 x $23.25 = $12,970,721
Operations & Maintenance Cost (see discussion below) $ 418,129
Total annualized cost estimate = $42,845,869
Estimated average cost per establishment is: $42,845,869/108,288 = $396

Operations and Maintenance Costs

    OFCCP estimates that the contractor will have some operations and 
maintenance costs in addition to the time burden calculated above 
associated with this collection.

60-250.5/300.5

    Contractor must provide EO Clause notices to employees and 
applicants, including alternative formats such as copy of Braille, 
large print, or other versions of notice so that visually impaired 
protected veterans may read the notice themselves (] 10 of EO Clause). 
OFCCP estimates that the contractor will have some operations and 
maintenance cost associated with posting the EO Clause. We estimate an 
average copying cost of 10 cents per page. We estimate the average size 
of the EO Clause to be 3 pages. The estimated total cost to contractors 
will be: 3 pages x $.10 x 108,288 Federal contractor establishments = 
$32,486.
    OFCCP estimates that the contractor will have some operations and 
maintenance costs associated with providing the EO Clause in an 
alternative format. We estimate that the cost of an alternative format, 
such as Braille or audio, to be $1.00 per contractor. The estimated 
total cost to contractors will be: $1.00 x 108,288 Federal contractor 
establishments = $108,288.

60-250.42/300.42

    OFCCP estimates that the contractor will have some operations and 
maintenance cost associated with the invitation to self-identify. The

[[Page 23391]]

contractors must invite all applicants with the pre-offer invitation, 
and must also invite those individuals who were offered positions and 
declared themselves protected veterans with the post-offer invitation. 
Given the increasingly widespread use of electronic applications, any 
contractor that uses such applications would not incur copy costs. 
Therefore, we estimate 1 page for the pre-offer invitation printed for 
10 applicants per year, and 2 pages for the post-offer invitation 
printed for 2 applicants per year. We also estimate an average copying 
cost of 10 cents per page. The estimated total cost to contractors will 
be: pre-offer--108,288 x 1 x 10 x $.10 = $108,288; post-offer--108,288 
x 2 x 2 x $10 = $43,315; total cost $108,288 + $43,315 = $151,603.

60-250.44/300.44

    Contractor must provide Braille, large print, or other versions of 
AA policy statement so that visually impaired may read the notice 
themselves (.44(a)). OFCCP estimates that the contractor will have some 
operations and maintenance costs associated with providing the AA 
policy statement. We estimate that the cost of an alternative format, 
such as Braille or audio, to be $1.00 per contractor. The estimated 
total cost to contractors will be: $1.00 x 108,288 Federal contractor 
establishments = $108,288.

60-250.44/300.44

    Contractor must provide its AAP to OFCCP during a desk audit. For 
Supply & Service compliance evaluations, the contractor copies its AAPs 
and mails the AAPs to OFCCP. We estimate an average copying cost of 
$.07 per page. We estimate the average size of an AAP to be 7 pages. 
The estimated total copying cost to contractors will be: 7 pages x $.07 
x 5,004 (FY 2009 Compliance Evaluations) = $2,452. In addition, we 
estimate an average mailing cost of $3.00 per contractor. The total 
mailing cost for contractors will be $3.00 x 5,004 = $15,012. The total 
estimated costs would be $2,452 + $15,012 = $17,464.

                Table 3--Operations and Maintenance Costs
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Contractor must provide EO Clause to      60-250.5/300.5         $32,486
 employees and applicants (] 10 of
 EO Clause).........................
Contractor must provide Braille,          60-250.5/300.5         108,288
 large print, or other versions of
 EO Clause so that visually impaired
 may read the notice themselves (]
 10 of EO Clause)...................
Contractor must invite all              60-250.42/300.42         151,603
 applicants to self-identify as
 protected veteran prior to offer of
 employment (.42(a))................
Contractor must provide Braille,        60-250.44/300.44         108,288
 large print, or other versions of
 AA policy statement so that
 visually impaired may read the
 notice themselves (.44(a)).........
Copying and mailing costs of AAPs       60-250.44/300.44          17,464
 (.44)..............................
                                     -----------------------------------
    Total O&M Costs.................  ..................         418,129
------------------------------------------------------------------------

    These paperwork burden estimates are summarized as follows:
    Type of Review: New collection (Request for new OMB Control 
Number).
    Agency: Office of Federal Contract Compliance Programs, Department 
of Labor.
    Title: Disclosures and Recordkeeping Under Affirmative Action and 
Nondiscrimination Obligations of Contractors and Subcontractors 
Regarding Special Disabled Veterans, Veterans of the Vietnam Era, 
Disabled Veterans, Recently Separated Veterans, Active Duty Wartime or 
Campaign Badge Veterans, and Armed Forces Service Medal Veterans.
    OMB ICR Reference Number: [Provide from ROCIS].
    Affected Public: Business or other for-profit; individuals.
    Estimated Number of Annual Responses: [Provide total from ROCIS].
    Frequency of Response: On occasion.
    Estimated Total Annual Burden Hours: 1,163,615.
    Estimated Total Annual Burden Cost (Start-up, capital, operations, 
and maintenance): $418,129.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this NPRM does not include any Federal mandate that may result in 
excess of $100 million in expenditures by state, local, and Tribal 
governments in the aggregate or by the private sector.

Executive Order 13132 (Federalism)

    OFCCP has reviewed this proposed rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' This proposed rule will 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.''

Executive Order 13084 (Consultation and Coordination With Indian Tribal 
Governments)

    This NPRM does not have Tribal implications under Executive Order 
13175 that would require a Tribal summary impact statement. The NPRM 
would not have substantial direct effects on one or more Indian Tribes, 
on the relationship between the Federal government and Indian Tribes or 
on the distribution of power and responsibilities between the Federal 
government and Indian Tribes.

Effects on Families

    The undersigned hereby certifies that the NPRM would not adversely 
affect the well-being of families, as discussed under section 654 of 
the Treasury and General Government Appropriations Act, 1999.

Executive Order 13045 (Protection of Children)

    This NPRM would have no environmental health risk or safety risk 
that may disproportionately affect children.

Environmental Impact Assessment

    A review of this NPRM in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the

[[Page 23392]]

regulations of the Council on Environmental Quality, 40 CFR 1500 et 
seq.; and DOL NEPA procedures, 29 CFR part 11, indicates the NPRM would 
not have a significant impact on the quality of the human environment. 
There is, thus, no corresponding environmental assessment or an 
environmental impact statement.

Executive Order 13211 (Energy Supply)

    This NPRM is not subject to Executive Order 13211. It will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This NPRM is not subject to Executive Order 12630 because it does 
not involve implementation of a policy that has takings implications or 
that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This NPRM was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the Federal court system. The 
NPRM was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 41 CFR Parts 60-250 and 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.

Patricia Shiu,
Director, Office of Federal Contract Compliance Programs.

    Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the 
Code of Federal Regulations, Chapter 60, the second alternative 
proposed part 60-250 (as discussed in the Summary section) and part 60-
300, is proposed to read as follows:

PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF FEDERAL CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL 
DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED 
VETERANS, AND ACTIVE DUTY WARTIME OR CAMPAIGN BADGE VETERANS

Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-250.1 Purpose, applicability and construction.
60-250.2 Definitions.
60-250.3 [Reserved].
60-250.4 Coverage and waivers.
60-250.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-250.20 Covered employment activities.
60-250.21 Prohibitions.
60-250.22 Direct threat defense.
60-250.23 Medical examinations and inquiries.
60-250.24 Drugs and alcohol.
60-250.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-250.40 Applicability of the affirmative action program 
requirement.
60-250.41 Availability of affirmative action program.
60-250.42 Invitation to self-identify.
60-250.43 Affirmative action policy.
60-250.44 Required contents of affirmative action programs.
60-250.45 Contractor established benchmarks for hiring.
Subpart D--General Enforcement and Complaint Procedures
60-250.60 Compliance evaluations.
60-250.61 Complaint procedures.
60-250.62 Conciliation agreements.
60-250.63 Violation of conciliation agreements.
60-250.64 Show cause notices.
60-250.65 Enforcement proceedings.
60-250.66 Sanctions and penalties.
60-250.67 Notification of agencies.
60-250.68 Reinstatement of ineligible contractors.
60-250.69 Intimidation and interference.
60-250.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-250.80 Recordkeeping.
60-250.81 Access to records.
60-250.82 Labor organizations and recruiting and training agencies.
60-250.83 Rulings and interpretations.
60-250.84 Responsibilities of local employment service offices.

Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

Appendix B to Part 60-250--Sample Invitation To Self-Identify


    Authority:  29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002); 
38 U.S.C. 4212 (2001) (amended 2002); E.O. 11758 (3 CFR, 1971-1975 
Comp., p. 841).

Subpart A--Preliminary Matters, Equal Opportunity Clause


Sec.  60-250.1  Purpose, applicability and construction.

    (a) Purpose. The purpose of the regulations in this part is to set 
forth the standards for compliance with 38 U.S.C. 4212 (Section 4212), 
which prohibits discrimination against protected veterans and requires 
Government contractors and subcontractors to take affirmative action to 
employ and advance in employment qualified protected veterans. Special 
disabled veterans, veterans of the Vietnam era, recently separated 
veterans, and active duty wartime or campaign badge veterans are 
protected veterans under Section 4212.
    (b) Applicability. This part applies to any Government contract or 
subcontract of $25,000 or more, entered into before December 1, 2003, 
for the purchase, sale or use of personal property or nonpersonal 
services (including construction), except that the regulations in 41 
CFR 60-300, and not this part, apply to such a contract or subcontract 
that is modified on or after December 1, 2003 and the contract or 
subcontract as modified is in the amount of $100,000 or more: Provided, 
that subpart C of this part applies only as described in Sec. 60-
250.40(a). Compliance by the contractor with the provisions of this 
part will not necessarily determine its compliance with other statutes, 
and compliance with other statutes will not necessarily determine its 
compliance with this part.
    (c) Construction--(1) In general. The Interpretive Guidance on 
Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101, 
et seq.) set out as an appendix to 29 CFR part 1630 issued pursuant to 
Title I may be relied upon for guidance in interpreting the parallel 
provisions of this part.
    (2) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any state or political subdivision that provides greater or 
equal protection for the rights of special disabled veterans, veterans 
of the Vietnam era, recently separated veterans, or active duty wartime 
or

[[Page 23393]]

campaign badge veterans as compared to the protection afforded by this 
part. It may be a defense to a charge of violation of this part that a 
challenged action is required or necessitated by another Federal law or 
regulation, or that another Federal law or regulation prohibits an 
action (including the provision of a particular reasonable 
accommodation) that would otherwise be required by this part.


Sec.  60-250.2  Definitions.

    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 (2001).
    (b) Active duty wartime or campaign badge veteran means 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 the laws 
administered by the Department of Defense.
    (c) 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.
    (d) Contract means any Government contract or subcontract.
    (e) Contractor means, unless otherwise indicated, a prime 
contractor or subcontractor holding a contract of $25,000 or more.
    (f) 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 an individual 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.
    (g) Director means the Director, Office of Federal Contract 
Compliance Programs of the United States Department of Labor, or his or 
her designee.
    (h) [Reserved].
    (i) 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.
    (j) Equal opportunity clause means the contract provisions set 
forth in Sec.  60-250.5, ``Equal opportunity clause.''
    (k) Essential functions--(1) In general. The term essential 
functions means fundamental job duties of the employment position the 
special disabled veteran holds or desires. The term essential functions 
does not include the marginal functions of the position.
    (2) A job function may be considered essential for any of several 
reasons, including, but not limited to, the following:
    (i) The function may be essential because the reason the position 
exists is to perform that function;
    (ii) The function may be essential because of the limited number of 
employees available among whom the performance of that job function can 
be distributed; and/or
    (iii) The function may be highly specialized so that the incumbent 
in the position is hired for his or her expertise or ability to perform 
the particular function.
    (3) Evidence of whether a particular function is essential 
includes, but is not limited to:
    (i) The contractor's judgment as to which functions are essential;
    (ii) Written job descriptions prepared before advertising or 
interviewing applicants for the job;
    (iii) The amount of time spent on the job performing the function;
    (iv) The consequences of not requiring the incumbent to perform the 
function;
    (v) The terms of a collective bargaining agreement;
    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (l) Government means the Government of the United States of 
America.
    (m) 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) Construction, as used in the definition of Government contract 
and subcontract 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.
    (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) Modification means any alteration in the terms and conditions 
of a contract, including supplemental agreements, amendments and 
extensions.
    (4) Nonpersonal services, as used in the definition of Government 
contract and subcontract of this section, includes, but is not limited 
to, the following: Utility, construction, transportation, research, 
insurance, and fund depository.
    (5) Person, as used in the definition of Government contract and 
subcontract 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.
    (6) Personal property, as used in the definition of Government 
contract and subcontract 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).
    (n) Linkage Agreement means an agreement describing the connection 
between contractors and appropriate recruitment and/or training 
sources. A linkage agreement is to be used by contractors as a source 
of potential applicants for the covered groups the contractor is 
interested in, as required by Sec.  60-250.44(f). The contractor's 
representative that signs the linkage agreement should be the company 
official responsible for the contractor's affirmative action program 
and/or has hiring authority.
    (o) Prime contractor means any person holding a contract of $25,000 
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.
    (p) Protected veteran means a veteran who is protected under the 
non-discrimination and affirmative action provisions of the Act; 
specifically, a veteran who may be classified as a ``special disabled 
veteran,'' ``veteran of

[[Page 23394]]

the Vietnam era,'' ``recently separated veteran,'' and/or an ``active 
duty wartime or campaign badge veteran,'' as defined by this section.
    (q) 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.
    (r) Qualified special disabled veteran means a special disabled 
veteran who satisfies the requisite skill, experience, education and 
other job-related requirements of the employment position such veteran 
holds or desires, and who, with or without reasonable accommodation, 
can perform the essential functions of such position.
    (s) Reasonable accommodation--(1) The term reasonable accommodation 
means:
    (i) Modifications or adjustments to a job application process that 
enable a qualified applicant who is a special disabled veteran to be 
considered for the position such applicant desires; \6\
---------------------------------------------------------------------------

    \6\ A contractor's duty to provide a reasonable accommodation 
with respect to applicants who are special disabled veterans is not 
limited to those who ultimately demonstrate that they are qualified 
to perform the job in issue. Special disabled veteran applicants 
must be provided a reasonable accommodation with respect to the 
application process if they are qualified with respect to that 
process (e.g., if they present themselves at the correct location 
and time to fill out an application).
---------------------------------------------------------------------------

    (ii) Modifications or adjustments to the work environment, or to 
the manner or circumstances under which the position held or desired is 
customarily performed, that enable a qualified special disabled veteran 
to perform the essential functions of that position; or
    (iii) Modifications or adjustments that enable the contractor's 
employee who is a special disabled veteran to enjoy equal benefits and 
privileges of employment as are enjoyed by the contractor's other 
similarly situated employees who are not special disabled veterans.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by employees readily accessible 
to and usable by special disabled veterans; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices; appropriate adjustment or modifications of 
examinations, training materials, or policies; the provision of 
qualified readers or interpreters; and other similar accommodations for 
special disabled veterans.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the contractor to initiate an informal, interactive 
process with the qualified special disabled veteran in need of the 
accommodation.\7\ 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.)
---------------------------------------------------------------------------

    \7\ Contractors must engage in such an interactive process with 
a special disabled veteran, whether or not a reasonable 
accommodation ultimately is identified that will make the person a 
qualified individual. Contractors must engage in the interactive 
process because, until they have done so, they may be unable to 
determine whether a reasonable accommodation exists that will result 
in the person being qualified.
---------------------------------------------------------------------------

    (t) Recently separated veteran means any veteran during the one-
year period beginning on the date of such veteran's discharge or 
release from active duty.
    (u) 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.
    (v) Secretary means the Secretary of Labor, United States 
Department of Labor, or his or her designee.
    (w)(1) Special disabled veteran means:
    (i) A veteran who is entitled to compensation (or who but for the 
receipt of military retired pay would be entitled to compensation) 
under laws administered by the Department of Veterans Affairs for a 
disability:
    (A) Rated at 30 percent or more; or
    (B) Rated at 10 or 20 percent in the case of a veteran who has been 
determined under 38 U.S.C. 3106 to have a serious employment handicap; 
or
    (ii) A person who was discharged or released from active duty 
because of a service-connected disability.
    (2) Serious employment handicap, as used in paragraph (w)(1)(B)) of 
this section, means a significant impairment of a veteran's ability to 
prepare for, obtain, or retain employment consistent with such 
veteran's abilities, aptitudes and interests.
    (x) 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.
    (y) Subcontractor means any person holding a subcontract of $25,000 
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.
    (z) TAP means the Department of Defense's Transition Assistance 
Program, or any successor programs thereto. The TAP was designed to 
smooth the transition of military personnel and family members leaving 
active duty via employment workshops and individualized employment 
assistance and training.
    (aa) 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 (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.
    (bb) 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.

[[Page 23395]]

    (cc) 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.
    (dd) Veteran of the Vietnam era means a person who:
    (1) Served on active duty for a period of more than 180 days, and 
was discharged or released therefrom with other than a dishonorable 
discharge, if any part of such active duty occurred:
    (i) In the Republic of Vietnam between February 28, 1961, and May 
7, 1975; or
    (ii) Between August 5, 1964, and May 7, 1975, in all other cases; 
or
    (2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed:
    (i) In the Republic of Vietnam between February 28, 1961, and May 
7, 1975; or
    (ii) Between August 5, 1964, and May 7, 1975, in all other cases.


Sec.  60-250.3  [Reserved]


Sec.  60-250.4  Coverage and waivers.

    (a) General--(1) Contracts and subcontracts of $25,000 or more. 
Contracts and subcontracts of $25,000 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 $25,000. 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 
$25,000 or more. Once the equal opportunity clause is determined to be 
applicable, the contract shall continue to be subject to such clause 
for its duration, regardless of the amounts ordered, or reasonably 
expected to be ordered in any year.
    (3) Employment activities within the United States. This part 
applies only to employment activities within the United States and not 
to employment activities abroad. The term ``employment activities 
within the United States'' includes actual employment within the United 
States, and decisions of the contractor made within the United States 
pertaining to the contractor's applicants and employees who are within 
the United States, regarding employment opportunities abroad (such as 
recruiting and hiring within the United States for employment abroad, 
or transfer of persons employed in the United States to contractor 
establishments abroad).
    (4) Contracts with state or local governments. The requirements of 
the equal opportunity clause in any contract or subcontract with a 
state or local government (or any agency, instrumentality or 
subdivision thereof) shall not be applicable to any agency, 
instrumentality or subdivision of such government which does not 
participate in work on or under the contract or subcontract.
    (b) Waivers--(1) Specific contracts and classes of contracts. The 
Director 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 Director 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 Director 
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 
Director in writing within 30 days.
    (3) Facilities not connected with contracts. The Director may waive 
the requirements of the equal opportunity clause with respect to any of 
a contractor's facilities which he or she finds to be in all respects 
separate and distinct from activities of the contractor related to the 
performance of the contract, provided that he or she also finds that 
such a waiver will not interfere with or impede the effectuation of the 
Act. Such waivers shall be considered only upon the request of the 
contractor.


Sec.  60-250.5  Equal opportunity clause.

    (a) Government contracts. Each contracting agency and each 
contractor shall include the following equal opportunity clause in each 
of its covered Government contracts or subcontracts (and modifications, 
renewals, or extensions thereof if not included in the original 
contract):

Equal Opportunity for Section 4212 Protected Veterans \8\
---------------------------------------------------------------------------

    \8\ The definitions set forth in 41 CFR 60-250.2 apply to the 
terms used throughout this Clause, and they are incorporated herein 
by reference.
---------------------------------------------------------------------------

    1. The contractor will not discriminate against any employee or 
applicant for employment because he or she is a special disabled 
veteran, veteran of the Vietnam era, recently separated veteran, or 
active duty wartime or campaign badge veteran (hereinafter 
collectively referred to as ``protected veteran(s)'') 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 
protected 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.
    ix. Any other term, condition, or privilege of employment.

[[Page 23396]]

    2. The contractor agrees to immediately list all employment 
openings which exist at the time of the execution of this contract 
and those which occur during the performance of this contract, 
including those not generated by this contract and including those 
occurring at an establishment of the contractor other than the one 
wherein the contract is being performed, but excluding those of 
independently operated corporate affiliates, at an appropriate local 
employment service office of the state employment security agency 
wherein the opening occurs. Further, listing employment openings 
with the state workforce agency job bank where the opening occurs or 
with the local employment service delivery system where the opening 
occurs will satisfy the requirements to list jobs with the 
appropriate employment service office. In order to satisfy the 
listing requirement described herein, contractors must provide 
information about the job vacancy in the manner and format required 
by the appropriate employment service delivery system to permit that 
system to provide priority referral of veterans protected by Section 
4212 for that job vacancy. Providing information on employment 
openings to a privately run job service or exchange will satisfy the 
contractor's listing obligation only if the privately run job 
service or exchange provides the information to the appropriate 
employment service delivery system in that manner and format in 
which the employment service delivery system requires.
    3. Listing of employment openings with the local employment 
service office 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 becomes contractually bound to the 
listing provisions in paragraphs 2 and 3 of this clause, it shall 
advise the employment service delivery system in each state where it 
has establishments that: (a) It is a Federal contractor, so that the 
employment service delivery systems are able to identify them as 
such; and (b) it desires priority referrals from the state of 
protected veterans for job openings at all locations within the 
state. The contractor shall also provide to the employment service 
delivery system the name and location of each hiring location within 
the state and the contact information for the contractor official 
responsible for hiring at each location. In the event that the 
contractor uses any external job search organizations to assist in 
its hiring, the contractor shall also provide to the employment 
service delivery system the contact information for the job search 
organization(s). The disclosures required by this paragraph shall be 
updated on an annual basis. As long as the contractor is 
contractually bound to these provisions and has so advised the 
employment service delivery system, there is no need to advise the 
employment service delivery system of subsequent contracts. The 
contractor may advise the employment service delivery system when it 
is no longer bound by this contract clause.
    5. The contractor shall maintain records on an annual basis of 
the number of priority referrals of veterans protected by Section 
4212 that it receives from each employment service delivery system, 
the total number of referrals it receives from each employment 
service delivery system, and the ratio of priority referrals to 
total referrals. The contractor shall maintain these records for a 
period of five (5) years.
    6. The provisions of paragraphs 2 and 3 of this clause do not 
apply to the listing of employment openings which occur and are 
filled outside of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
    7. As used in this clause: i. All employment openings includes 
all positions except executive and top management, those positions 
that will be filled from within the contractor's organization, and 
positions lasting three days or less. This term includes full-time 
employment, temporary employment of more than three days' duration, 
and part-time employment.
    ii. Executive and top management means any employee: (a) Whose 
primary duty consists of the management of the enterprise in which 
he or she is employed or of a customarily recognized department or 
subdivision thereof; and (b) who customarily and regularly directs 
the work of two or more other employees therein; and (c) who has the 
authority to hire or fire other employees or whose suggestions and 
recommendations as to the hiring or firing and as to the advancement 
and promotion or any other change of status of other employees will 
be given particular weight; and (d) who customarily and regularly 
exercises discretionary powers; and (e) who does not devote more 
than 20 percent, or, in the case of an employee of a retail or 
service establishment who does not devote as much as 40 percent, of 
his or her hours of work in the work week to activities which are 
not directly and closely related to the performance of the work 
described in (a) through (d) of this paragraph 7.ii; Provided, that 
(e) of this paragraph 7.ii shall not apply in the case of an 
employee who is in sole charge of an independent establishment or a 
physically separated branch establishment, or who owns at least a 
20-percent interest in the enterprise in which he or she is 
employed.
    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.
    8. The contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor issued pursuant to the 
Act.
    9. 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.
    10. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices in a 
form to be prescribed by the Director, Office of Federal Contract 
Compliance Programs, provided by or through the contracting officer. 
Such notices shall state the rights of applicants and employees as 
well as the contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
employees and applicants who are protected veterans. The contractor 
must ensure that applicants or employees who are special disabled 
veterans are provided the notice in a form that is accessible and 
understandable to the special disabled veteran (e.g., providing 
Braille or large print versions of the notice, or posting the notice 
for visual accessibility to persons in wheelchairs). With respect to 
employees who do not work at a physical location of the contractor, 
a contractor will satisfy its posting obligations by posting such 
notices in an electronic format, provided that the contractor 
provides computers that can access the electronic posting to such 
employees, or the contractor has actual knowledge that such 
employees otherwise are able to access the electronically posted 
notices. Electronic notices for employees must be posted in a 
conspicuous location and format on the company's intranet or sent by 
electronic mail to employees. An electronic posting must be used by 
the contractor to notify job applicants of their rights if the 
contractor utilizes an electronic application process. Such 
electronic applicant notice must be conspicuously stored with, or as 
part of, the electronic application.
    11. 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 Section 4212 and is committed to take 
affirmative action to employ and advance in employment, and shall 
not discriminate against, protected veterans.
    12. The contractor will include the provisions of this clause in 
every subcontract or purchase order of $25,000 or more, unless 
exempted by the rules, regulations, or orders of the Secretary 
issued pursuant to Section 4212, 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 
Director, Office of Federal Contract Compliance Programs may direct 
to enforce such provisions, including action for noncompliance.
    13. The contractor must, in all solicitations or advertisements 
for employees placed by or on behalf of the contractor, state that 
all qualified applicants will receive

[[Page 23397]]

consideration for employment without regard to their status as a 
protected veteran.


[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 must be appropriate to identify 
properly the parties and their undertakings.
    (d) Inclusion of the equal opportunity clause in the contract. It 
shall be necessary to include the equal opportunity clause verbatim in 
the contract.
    (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.
    (f) Duties of contracting agencies. Each contracting agency shall 
cooperate with the Director 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 Director 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 Director, and taking such actions for 
noncompliance as are set forth in Sec. 60-250.66 as may be ordered by 
the Secretary or the Director.

Subpart B--Discrimination Prohibited


Sec.  60-250.20  Covered employment activities.

    The prohibition against discrimination in this part applies to the 
following employment activities:
    (a) Recruitment, advertising, and job application procedures;
    (b) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (c) Rates of pay or any other form of compensation and changes in 
compensation;
    (d) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (e) Leaves of absence, sick leave, or any other leave;
    (f) Fringe benefits available by virtue of employment, whether or 
not administered by the contractor;
    (g) Selection and financial support for training, including, 
apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (h) Activities sponsored by the contractor including social and 
recreational programs; and
    (i) Any other term, condition, or privilege of employment.


Sec.  60-250.21  Prohibitions.

    The term ``discrimination'' includes, but is not limited to, the 
acts described in this section and Sec.  60-250.23.
    (a) Disparate treatment. It is unlawful for the contractor to deny 
an employment opportunity or benefit or otherwise to discriminate 
against a qualified individual because of that individual's status as a 
protected 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 protected veteran. For example, 
the contractor may not segregate protected veterans as a whole, or any 
classification of protected 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 protected 
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 
protected veteran; or
    (2) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (e) Relationship or association with a protected 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 protected 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 applicant or employee who is a 
qualified special disabled veteran, unless such contractor can 
demonstrate that the accommodation would impose an undue hardship on 
the operation of its business.
    (2) It is unlawful for the contractor to deny employment 
opportunities to an applicant or employee who is a qualified special 
disabled veteran based on the need of such contractor to make 
reasonable accommodation to such an individual's physical or mental 
impairments.
    (3) A qualified special disabled veteran is not required to accept 
an accommodation, aid, service, opportunity or benefit which such 
qualified individual chooses not to accept. However, if such individual 
rejects a reasonable accommodation, aid, service, opportunity or 
benefit that is necessary to enable the individual to perform the 
essential functions of the position held or desired, and cannot, as a 
result of that rejection, perform the essential functions of the 
position, the individual will not be considered a qualified special 
disabled veteran, unless the individual subsequently provides and/or 
pays for a reasonable accommodation as described in paragraph 4 of 
Appendix A of this part.
    (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

[[Page 23398]]

as protected 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 special disabled veteran if that individual could satisfy 
the criteria with provision of a reasonable accommodation. Selection 
criteria that exclude or tend to exclude individuals on the basis of 
their status as protected 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 special 
disabled veteran because the applicant's disability prevents him or her 
from performing marginal functions. When considering a protected 
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 special disabled veteran with a 
disability that impairs sensory, manual, or speaking skills, the test 
results accurately reflect the skills, aptitude, or whatever other 
factor of the applicant or employee that the test purports to measure, 
rather than reflecting the impaired sensory, manual, or speaking skills 
of such employee or applicant, except where such skills are the factors 
that the test purports to measure.
    (i) Compensation. In offering employment or promotions to protected 
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.  60-250.22  Direct threat defense.

    The contractor may use as a qualification standard the requirement 
that an individual be able to perform the essential functions of the 
position held or desired without posing a direct threat to the health 
or safety of the individual or others in the workplace. (See Sec.  60-
250.2(f) defining direct threat.).


Sec.  60-250.23  Medical examinations and inquiries.

    (a) Prohibited medical examinations or inquiries. Except as stated 
in paragraphs (b) and (c) of this section, it is unlawful for the 
contractor to require a medical examination of an applicant or employee 
or to make inquiries as to whether an applicant or employee is a 
special disabled veteran or as to the nature or severity of such a 
veteran's disability.
    (b) Permitted medical examinations and inquiries--(1) Acceptable 
pre-employment inquiry. The contractor may make pre-employment 
inquiries into the ability of an applicant to perform job-related 
functions, and/or may ask an applicant to describe or to demonstrate 
how, with or without reasonable accommodation, the applicant will be 
able to perform job-related functions.
    (2) Employment entrance examination. The contractor may require a 
medical examination (and/or inquiry) after making an offer of 
employment to a job applicant and before the applicant begins his or 
her employment duties, and may condition an offer of employment on the 
results of such examination (and/or inquiry), if all entering employees 
in the same job category are subjected to such an examination (and/or 
inquiry) regardless of their status as a special disabled veteran.
    (3) Examination of employees. The contractor may require a medical 
examination (and/or inquiry) of an employee that is job-related and 
consistent with business necessity. The contractor may make inquiries 
into the ability of an employee to perform job-related functions.
    (4) Other acceptable examinations and inquiries. The contractor may 
conduct voluntary medical examinations and activities, including 
voluntary medical histories, which are part of an employee health 
program available to employees at the work site.
    (5) Medical examinations conducted in accordance with paragraphs 
(b)(2) and (b)(4) of this section do not have to be job-related and 
consistent with business necessity. However, if certain criteria are 
used to screen out an applicant or applicants or an employee or 
employees who are special disabled veterans as a result of such 
examinations or inquiries, the contractor must demonstrate that the 
exclusionary criteria are job-related and consistent with business 
necessity, and that performance of the essential job functions cannot 
be accomplished with reasonable accommodations as required in this 
part.
    (c) Invitation to self-identify. The contractor shall invite 
applicants to self-identify as being covered by the Act, as specified 
in Sec.  60-250.42.
    (d) Confidentiality and use of medical information. (1) Information 
obtained under this section regarding the medical condition or history 
of any applicant or employee shall be collected and maintained on 
separate forms and in separate medical files and treated as a 
confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the applicant or employee and 
necessary accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials engaged in enforcing the laws 
administered by OFCCP, including this part, or enforcing the Americans 
with Disabilities Act, shall be provided relevant information on 
request.
    (2) Information obtained under this section regarding the medical 
condition or history of any applicant or employee shall not be used for 
any purpose inconsistent with this part.


Sec.  60-250.24  Drugs and alcohol.

    (a) Specific activities permitted. The contractor: (1) May prohibit 
the illegal use of drugs and the use of alcohol at the workplace by all 
employees;
    (2) May require that employees not be under the influence of 
alcohol or be engaging in the illegal use of drugs at the workplace;
    (3) May require that all employees behave in conformance with the 
requirements established under the Drug-Free Workplace Act of 1988 (41 
U.S.C. 701 et seq.);
    (4) May hold an employee who engages in the illegal use of drugs or 
who is an alcoholic to the same qualification standards for employment 
or job performance and behavior to which the contractor holds its other 
employees, even if any unsatisfactory performance or behavior is 
related to the employee's drug use or alcoholism;
    (5) May require that its employees employed in an industry subject 
to such regulations comply with the standards established in the 
regulations (if any) of the Departments of Defense and Transportation, 
and of the Nuclear Regulatory Commission, and other

[[Page 23399]]

Federal agencies regarding alcohol and the illegal use of drugs; and
    (6) May require that employees employed in sensitive positions 
comply with the regulations (if any) of the Departments of Defense and 
Transportation, and of the Nuclear Regulatory Commission, and other 
Federal agencies that apply to employment in sensitive positions 
subject to such regulations.
    (b) Drug testing--(1) General policy. For purposes of this part, a 
test to determine the illegal use of drugs is not considered a medical 
examination. Thus, the administration of such drug tests by the 
contractor to its job applicants or employees is not a violation of 
Sec. 60-250.23. Nothing in this part shall be construed to encourage, 
prohibit, or authorize the contractor to conduct drug tests of job 
applicants or employees to determine the illegal use of drugs or to 
make employment decisions based on such test results.
    (2) Transportation employees. Nothing in this part shall be 
construed to encourage, prohibit, or authorize the otherwise lawful 
exercise by contractors subject to the jurisdiction of the Department 
of Transportation of authority to test employees in, and applicants 
for, positions involving safety-sensitive duties for the illegal use of 
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs 
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this 
section.
    (3) Any information regarding the medical condition or history of 
any employee or applicant obtained from a test to determine the illegal 
use of drugs, except information regarding the illegal use of drugs, is 
subject to the requirements of Sec. Sec.  60-250.23(b)(5) and 60-
250.23(d)(2).


Sec.  60-250.25  Health insurance, life insurance and other benefit 
plans.

    (a) An insurer, hospital, or medical service company, health 
maintenance organization, or any agent or entity that administers 
benefit plans, or similar organizations may underwrite risks, classify 
risks, or administer such risks that are based on or not inconsistent 
with state law.
    (b) The contractor may establish, sponsor, observe or administer 
the terms of a bona fide benefit plan that are based on underwriting 
risks, classifying risks, or administering such risks that are based on 
or not inconsistent with state law.
    (c) The contractor may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that is not subject to state laws 
that regulate insurance.
    (d) The contractor shall not deny a qualified special disabled 
veteran equal access to insurance or subject a qualified special 
disabled veteran to different terms or conditions of insurance based on 
disability alone, if the disability does not pose increased risks.
    (e) The activities described in paragraphs (a), (b) and (c) of this 
section are permitted unless these activities are used as a subterfuge 
to evade the purposes of this part.

Subpart C--Affirmative Action Program


Sec.  60-250.40  Applicability of the affirmative action program 
requirement.

    (a) The requirements of this subpart apply to every Government 
contractor that has 50 or more employees and a contract of $50,000 or 
more.
    (b) Contractors described in paragraph (a) of this section shall, 
within 120 days of the commencement of a contract, prepare and maintain 
an affirmative action program at each establishment. The affirmative 
action program shall set forth the contractor's policies and procedures 
in accordance with this part. This program may be integrated into or 
kept separate from other affirmative action programs.
    (c) The affirmative action program shall be reviewed and updated 
annually by the official designated by the contractor pursuant to Sec.  
60-250.44(i).
    (d) The contractor shall submit the affirmative action program 
within 30 days of a request from OFCCP, unless the request provides for 
a different time. The contractor also shall make the affirmative action 
program promptly available on-site upon OFCCP's request.


Sec.  60-250.41  Availability of affirmative action program.

    The full affirmative action program shall be available to any 
employee or applicant for employment for inspection upon request. The 
location and hours during which the program may be obtained shall be 
posted at each establishment. In the event that the contractor has 
employees who do not work at a physical establishment, the contractor 
shall inform such employees about the availability of the affirmative 
action program by other means.


Sec.  60-250.42  Invitation to self-identify.

    (a) Pre-offer. The contractor shall invite applicants to inform the 
contractor whether the applicant believes that he or she is a protected 
veteran who may be covered by the Act. This invitation may be included 
in the application materials for the position, but in any circumstance 
shall be provided to applicants prior to making an offer of employment 
to a job applicant. Additionally, the contractor may invite special 
disabled veterans to self-identify as such prior to making a job offer 
when:
    (1) The invitation is made when the contractor actually is 
undertaking affirmative action for special disabled veterans at the 
pre-offer stage; or
    (2) The invitation is made pursuant to a Federal, State, or local 
law requiring affirmative action for special disabled veterans.
    (b) Post-offer. At any time after the offer of employment but 
before the applicant begins his or her job duties, the contractor shall 
invite applicants to inform the contractor whether the applicant 
believes that he or she is a special disabled veteran, veteran of the 
Vietnam era, recently separated veteran, or active duty wartime or 
campaign badge veteran who may be covered by the Act.
    (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.)
    (d) If an applicant identifies himself or herself as a special 
disabled veteran in the post-offer self-identification detailed in 
paragraph (b) of this section, the contractor must inquire with the 
applicant whether an accommodation is necessary, and if so, must engage 
in an interactive process with applicant regarding reasonable 
accommodation. The contractor 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.  60-250.23(d) on 
persons who have self-identified as special disabled veterans.
    (e) The contractor shall keep all information on self-
identification

[[Page 23400]]

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 relieves the contractor of its 
obligation to take affirmative action with respect to those applicants 
or employees who are known to the contractor to be protected veterans.
    (g) Nothing in this section relieves the contractor from liability 
for discrimination under the Act.


Sec.  60-250.43  Affirmative action policy.

    Under the affirmative action obligations imposed by the Act, 
contractors shall not discriminate against protected veterans, and 
shall take affirmative action to employ and advance in employment 
qualified protected veterans at all levels of employment, including the 
executive level. Such action shall apply to all employment activities 
set forth in Sec.  60-250.20.


Sec.  60-250.44  Required contents of affirmative action programs.

    Acceptable affirmative action programs shall contain, but not 
necessarily be limited to, the following elements:
    (a) Policy statement. The contractor shall include an equal 
opportunity policy statement in its affirmative action program, and 
shall post the policy statement on company bulletin boards. The 
contractor must ensure that applicants and employees who are special 
disabled veterans are provided the notice in a form that is accessible 
and understandable to the special disabled veteran (e.g., providing 
Braille or large print versions of the notice, or posting the notice 
for visual accessibility to persons in wheelchairs). The policy 
statement shall indicate the chief executive officer's support for the 
contractor's affirmative action program, 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 shall 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 protected 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 Section 4212 or 
any other Federal, state or local law requiring equal opportunity for 
protected veterans;
    (3) Opposing any act or practice made unlawful by Section 4212 or 
its implementing regulations in this part or any other Federal, state 
or local law requiring equal opportunity for protected veterans; or
    (4) Exercising any other right protected by Section 4212 or its 
implementing regulations in this part.
    (b) Review of personnel processes. The contractor shall ensure that 
its personnel processes provide for careful, thorough, and systematic 
consideration of the job qualifications of applicants and employees who 
are known protected 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 protected 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 protected veterans in a manner which limits 
their access to all jobs for which they are qualified. The contractor 
shall review such processes on at least an annual basis 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. These procedures shall, at a minimum, include the following 
steps:
    (1) For each applicant who is a protected veteran, the contractor 
shall be able to identify:
    (i) each vacancy for which the applicant was considered; and
    (ii) each training program for which the applicant was considered.
    (2) For each employee who is a protected veteran, the contractor 
shall be able to identify:
    (i) each promotion for which the protected veteran was considered; 
and
    (ii) each training program for which the protected veteran was 
considered.
    (3) In each case where an employee or applicant who is a protected 
veteran is rejected for employment, promotion, or training, the 
contractor shall prepare a statement of the reason as well as a 
description of the accommodations considered (for a rejected special 
disabled veteran). The statement of the reason for rejection (if the 
reason is medically related), and the description of the accommodations 
considered, shall be treated as confidential medical records in 
accordance with Sec.  60-250.23(d). These materials shall 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 to place a special disabled veteran on the job, the 
contractor shall make a record containing a description of the 
accommodation. The record shall be treated as a confidential medical 
record in accordance with Sec.  60-250.23(d).
    (c) Physical and mental qualifications. (1) The contractor shall 
provide in its affirmative action program, and shall adhere to, a 
schedule for the annual review of all physical and mental job 
qualification standards to ensure that, to the extent qualification 
standards tend to screen out qualified special disabled veterans, they 
are job-related for the position in question and are consistent with 
business necessity. The contractor shall document the methods used to 
complete the annual review, the results of the annual review, and any 
actions taken in response. These documents shall be retained as 
employment records subject to the recordkeeping requirements of Sec.  
60-250.80.
    (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 special disabled veterans, the standards shall 
be related to the specific job or jobs for which the individual is 
being considered and consistent with business necessity. The contractor 
has 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-

[[Page 23401]]

250.2(f) defining direct threat.) Once the contractor believes that a 
direct threat exists, the contractor shall create a statement of 
reasons supporting its belief, addressing each the criteria for 
``direct threat'' listed in Sec.  60-250.2(f). This statement shall be 
treated as a confidential medical record in accordance with Sec.  60-
250.23, and shall be retained as an employment record subject to the 
recordkeeping requirements of Sec.  60-250.80.
    (d) Reasonable accommodation to physical and mental limitations. As 
is provided in Sec.  60-250.21(f), as a matter of nondiscrimination the 
contractor must make reasonable accommodation to the known physical or 
mental limitations of an otherwise qualified special disabled veteran 
unless it can demonstrate that the accommodation would impose an undue 
hardship on the operation of its business. As a matter of affirmative 
action, if an employee who is known to be a special disabled veteran is 
having significant difficulty performing his or her job and it is 
reasonable to conclude that the performance problem may be related to 
the known disability, the contractor shall confidentially notify the 
employee of the performance problem and inquire whether the problem is 
related to the employee's disability; if the employee responds 
affirmatively, the contractor shall confidentially inquire whether the 
employee is in need of a reasonable accommodation.
    (e) Harassment. The contractor must develop and implement 
procedures to ensure that its employees are not harassed because of 
their status as a protected veteran.
    (f) External dissemination of policy, outreach and positive 
recruitment.
    (1) Required outreach efforts. The contractor shall undertake the 
outreach and positive recruitment activities listed below:
    (i) The contractor shall establish linkage agreements enlisting the 
assistance and support of the Local Veterans' Employment Representative 
in the local employment service office nearest the contractor's 
establishment; and at least one of the following persons and 
organizations in recruiting and developing training opportunities for 
protected veterans to fulfill its commitment to provide meaningful 
employment opportunities to such veterans:
    (A) The Department of Veterans Affairs Regional Office nearest the 
contractor's establishment;
    (B) The veterans' counselors and coordinators (Vet-Reps) on college 
campuses;
    (C) The service officers of the national veterans' groups active in 
the area of the contractor's establishment;
    (D) Local veterans' groups and veterans' service centers near the 
contractor's establishment; and
    (E) The Department of Defense Transition Assistance Program (TAP), 
or any subsequent program that, in whole or in part, might replace TAP.
    (ii) The contractor shall also consult the Employer Resources 
section of the National Resource Directory (http://www.nationalresourcedirectory.gov/employment/employer_resources), or 
any future service that replaces or complements it, and establish a 
linkage agreement with one or more of the veterans' service 
organizations listed on the directory, other than the agencies listed 
in (A) through (E) above, for such purposes as advice, technical 
assistance, and referral of potential employees. Technical assistance 
from the resources described in this paragraph may consist of advice on 
proper placement, recruitment, training and accommodations contractors 
may undertake, but no such resource providing technical assistance 
shall have authority to approve or disapprove the acceptability of 
affirmative action programs.
    (iii) The contractor must send written notification of company 
policy related to its affirmative action efforts to all subcontractors, 
including subcontracting vendors and suppliers, requesting appropriate 
action on their part.
    (2) Suggested outreach efforts. The contractor should consider 
taking the actions listed below to fulfill its commitment to provide 
meaningful employment opportunities to protected veterans:
    (i) Formal briefing sessions should be held, preferably on company 
premises, with representatives from recruiting sources. Contractor 
facility 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. At any such 
briefing sessions, the company official in charge of the contractor's 
affirmative action program should be in attendance when possible. 
Formal arrangements should be made for referral of applicants, follow 
up with sources, and feedback on disposition of applicants.
    (ii) The contractor's recruitment efforts at all educational 
institutions should incorporate special efforts to reach students who 
are protected veterans.
    (iii) An effort should be made to participate in work-study 
programs with Department of Veterans Affairs rehabilitation facilities 
which specialize in training or educating special disabled veterans.
    (iv) Protected veterans should be made available for participation 
in career days, youth motivation programs, and related activities in 
their communities.
    (v) The contractor should take any other positive steps it deems 
necessary to attract qualified protected 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 any of the classifications 
of protected veterans.
    (vi) The contractor, in making hiring decisions, shall consider 
applicants who are known protected veterans for all available positions 
for which they may be qualified when the position(s) applied for is 
unavailable.
    (3) Assessment of External Outreach and Recruitment Efforts. The 
contractor shall, on an annual basis, review the outreach and 
recruitment efforts it has taken over the previous twelve months to 
evaluate their effectiveness in identifying and recruiting qualified 
protected veterans. The contractor shall document each evaluation, 
including at a minimum the criteria it used to evaluate the 
effectiveness of each effort and the contractor's conclusion as to 
whether each effort was effective. Among these criteria shall be the 
data collected pursuant to paragraph (k) of this section for the 
current year and the two most recent previous years. The contractor's 
conclusion as to the effectiveness of its outreach efforts shall be 
reasonable as determined by OFCCP in light of these regulations. If the 
contractor concludes the totality of its efforts were not effective in 
identifying and recruiting qualified protected veterans, it shall 
identify and implement alternative efforts listed in paragraphs (f)(1) 
or (f)(2) of this section in order to fulfill its obligations.
    (4) Recordkeeping Obligation. The contractor shall document all 
linkage agreements and all other activities it undertakes to comply 
with the obligations of this paragraph, and retain these documents for 
a period of five (5) years.
    (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

[[Page 23402]]

in the contractor's efforts, the contractor shall develop the internal 
procedures 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 protected veterans. It is not 
contemplated that the contractor`s 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.
    (2) The contractor shall 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 protected veterans. The contractor shall 
schedule meetings on an annual basis with all employees to discuss its 
affirmative action policies, explain contractor and individual employee 
responsibilities under these policies, and identify opportunities for 
advancement;
    (iii) Conduct 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;
    (iv) Discuss the policy thoroughly in any employee orientation and 
management training programs;
    (v) If the contractor is party to a collective bargaining 
agreement, it shall meet with union officials and/or employee 
representatives to inform them of the contractor's policy, and request 
their cooperation;
    (3) The contractor is encouraged to additionally implement and 
disseminate this policy internally as follows:
    (i) If the contractor has a company newspaper, magazine, annual 
report, or other paper or electronic publication distributed to 
employees, it should publicize its affirmative action policy in these 
publications, and include in these publications, where appropriate, 
features on special disabled veteran employees and articles on the 
accomplishments of protected veterans, with their consent.
    (4) The contractor shall document those activities it undertakes to 
comply with the obligations of paragraph (g), and retain these 
documents as employment records subject to the recordkeeping 
requirements of Sec.  60-250.80.
    (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 protected veterans have had the 
opportunity to participate in all company sponsored educational, 
training, recreational and social activities;
    (v) Measure the contractor's compliance with the affirmative action 
program's specific obligations; and
    (vi) Document the actions taken to comply with the obligations of 
paragraphs (i) through (v) above, and retain these documents as 
employment records subject to the recordkeeping requirements of Sec.  
60-250.80.
    (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 shall appear on all internal and external communications 
regarding the company's affirmative action program. This official shall 
be given necessary top management support and staff to manage the 
implementation of this program.
    (j) Training. In addition to the training set forth in paragraph 
(g)(2)(ii) of this section, 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. This training shall 
include, but not be limited to, the benefits of employing protected 
veterans, appropriate sensitivity toward protected veteran applicants 
and employees, and the legal responsibilities of the contractor and its 
agents regarding protected veterans generally and special disabled 
veterans specifically, such as a reasonable accommodation for qualified 
special disabled veterans and the related and responsibilities of 
contractors and protected veterans. The contractor shall create 
contemporaneous records documenting the specific subject matter(s) 
covered in the training, who conducted the training, who received the 
training, and when the training took place. The contractor shall retain 
these documents, and any written or electronic materials used for the 
training required by this section, as employment records subject to the 
recordkeeping requirements of Sec.  60-250.80.
    (k) Data Collection Analysis. The contractor shall document and 
maintain the following computations or comparisons pertaining to 
applicants and hires on an annual basis:
    (1) The raw number of priority referrals of veterans protected by 
this part that the contractor received from applicable employment 
service delivery system(s);
    (2) The number of total referrals that the contractor received from 
applicable employment service delivery system(s);
    (3) The ratio of priority referrals of veterans to total referrals 
(referral ratio);
    (4) The number of applicants who self-identified as protected 
veterans pursuant to Sec.  60-250.42(a), or who are otherwise known as 
protected veterans;
    (5) The total number of job openings and the total number of jobs 
filled;
    (6) The ratio of jobs filled to job openings;
    (7) The total number of applicants for all jobs;
    (8) The ratio of protected veteran applicants to all applicants 
(applicant ratio);
    (9) The number of protected veteran applicants hired;
    (10) The total number of applicants hired; and
    (11) The ratio of protected veterans hired to all hires (hiring 
ratio). The number of hires shall include all employees as defined in 
Sec.  60-250.2(h).


Sec.  60-250.45  Contractor established benchmarks for hiring.

    (a) Purpose: The purpose of establishing benchmarks is to create a 
quantifiable method by which the contractor can measure its progress 
toward achieving equal employment opportunity for protected veterans.
    (b) Hiring benchmarks, expressed as the percentage of total hires 
that are protected veterans that the contractor will seek to hire, 
shall be established by the contractor on an annual basis. In 
establishing these benchmarks, contractors shall take into account the 
following information:
    (1) The average percentage of veterans in the civilian labor force 
in the State(s) where the contractor is located over the preceding 
three years, as calculated by the Bureau of Labor Statistics and 
published on OFCCP Web site;

[[Page 23403]]

    (2) The number of veterans, over the previous four quarters, who 
were participants in the employment service delivery system in the 
State where the contractor is located, as tabulated by the Veterans' 
Employment and Training Service and published on OFCCP Web site;
    (3) The referral ratio, applicant ratio, and hiring ratio for the 
previous year, as set forth in Sec.  60-250.44(k);
    (4) The contractor's recent assessments of the effectiveness of its 
external outreach and recruitment efforts, as set forth in Sec.  60-
250.44(f)(3); and
    (5) Any other factors, including but not limited to the nature of 
the contractor's job openings and/or its location, which would tend to 
affect the availability of qualified protected veterans.
    (c) The contractor shall document the hiring benchmark it has 
established each year, detailing each of the factors that it considered 
in establishing the hiring benchmark and the relative significance of 
each of these factors. The contractor shall retain this document for a 
period of five (5) years.

Subpart D--General Enforcement And Complaint Procedures


Sec.  60-250.60  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 protected 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. OFCCP may extend the temporal scope 
of the desk audit beyond that set forth in the scheduling letter if 
OFCCP deems it necessary to carry out its investigation of potential 
violations of this Part. 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 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 Section 4212 and its regulations;
    (3) Compliance check. A determination of whether the contractor has 
maintained records consistent with Sec.  60-250.80; OFCCP may request 
the documents be provided either on-site or off-site; or
    (4) Focused review. A 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.  60-250.62.
    (c) VETS-100 Report. During a compliance evaluation, OFCCP may 
verify whether the contractor has complied with its obligation, 
pursuant to 41 CFR part 61-250, to file its annual Veterans' Employment 
Report (VETS-100 Report) with the Veterans' Employment and Training 
Service (VETS). If the contractor has not filed its report, OFCCP will 
request a copy from the contractor. If the contractor fails to provide 
a copy of the report to OFCCP, OFCCP will notify VETS.
    (d) Pre-award compliance evaluations. Each agency will include in 
the invitation for bids for each formally advertised nonconstruction 
contract or state at the outset of negotiations for each negotiated 
contract, that if the award, when let, should total $10 million or 
more, the prospective contractor and its known first-tier 
subcontractors with subcontracts of $10 million or more will be subject 
to a compliance evaluation before the award of the contract unless 
OFCCP has conducted an evaluation and found them to be in compliance 
with Section 4212 within the preceding 24 months. The awarding agency 
will notify OFCCP and request appropriate action and findings in 
accordance with this subsection. Within 15 days of the notice OFCCP 
will inform the awarding agency of its intention to conduct a pre-award 
compliance evaluation. If OFCCP does not inform the awarding agency 
within that period of its intention to conduct a pre-award compliance 
evaluation, clearance shall be presumed and the awarding agency is 
authorized to proceed with the award. If OFCCP informs the awarding 
agency of its intention to conduct a pre-award compliance evaluation, 
OFCCP will be allowed an additional 20 days after the date that it so 
informs the awarding agency to provide its conclusions. If OFCCP does 
not provide the awarding agency with its conclusions within that 
period, clearance will be presumed and the awarding agency is 
authorized to proceed with the award.


Sec.  60-250.61  Complaint procedures.

    (a) Place and time of filing. Any applicant for employment with a 
contractor or any employee of a contractor may, personally, or by an 
authorized representative, file a written complaint alleging a 
violation of the Act or the regulations in this part. The complaint may 
allege individual or class-wide violation(s). Such complaint must be 
filed within 300 days of the date of the alleged violation, unless the 
time for filing is extended by OFCCP for good cause shown. Complaints 
may be submitted to 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

[[Page 23404]]

employment service delivery system shall cooperate with the Director 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 protected 
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, 
indicating the veteran's level (by percentage) of disability, and 
whether the veteran has been determined by the Department of Veterans 
Affairs to have a serious employment handicap under 38 U.S.C. 3106;
    (iv) A description of the act or acts considered to be a violation, 
including the pertinent dates (in the case of an alleged continuing 
violation, the earliest and most recent date that the alleged violation 
occurred should be stated); and
    (v) Other pertinent information available which will assist in the 
investigation and resolution of the complaint, including the name of 
any known Federal agency with which the employer has contracted.
    (2) Third party complaints. A complaint filed by an authorized 
representative need not identify by name the person on whose behalf it 
is filed. The person filing the complaint, however, shall provide OFCCP 
with the name, address and telephone number of the person on whose 
behalf it is made, and the other information specified in paragraph 
(b)(1) of this section. OFCCP shall verify the authorization of such a 
complaint by the person on whose behalf the complaint is made. Any such 
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 Director decides not to 
refer the matter to the Solicitor of Labor for enforcement proceedings 
against the contractor pursuant to Sec.  60-250.65(a)(1), the 
complainant and contractor shall be so notified. The Director, 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 Director 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 Director decides to reconsider the 
determination of a Notification of Results of Investigation, the 
Director shall provide prompt notification of his or her intent to 
reconsider, which is effective upon issuance, and his or her final 
determination after reconsideration, to the person claiming to be 
aggrieved, the person making the complaint on behalf of such person, if 
any, and the contractor.
    (4) If the investigation finds a violation of the Act or this part, 
OFCCP shall invite the contractor to participate in conciliation 
discussions pursuant to Sec.  60-250.62.


Sec.  60-250.62  Conciliation agreements.

    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 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.  60-250.63  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.  60-250.64  Show cause notices.

    When the Director has reasonable cause to believe that the 
contractor has violated the Act or this part, he or she may issue a 
notice requiring the contractor to show cause, within 30 days, why 
monitoring, enforcement proceedings or other appropriate action to 
ensure compliance should not be instituted. The issuance of such a 
notice is not a prerequisite to instituting enforcement proceedings 
(see Sec.  60-250.65).


Sec.  60-250.65  Enforcement proceedings.

    (a) General. (1) If a compliance 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

[[Page 23405]]

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 Director may, within the limitations of applicable law, 
seek appropriate judicial action to enforce the contractual provisions 
set forth in Sec.  60-250.5, including appropriate injunctive relief.
    (b) Hearing practice and procedure. (1) In administrative 
enforcement proceedings the contractor shall be provided an opportunity 
for a formal hearing. All hearings conducted under the Act and this 
part shall be governed by the Rules of Practice for Administrative 
Proceedings to Enforce Equal Opportunity Under Executive Order 11246 
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges contained in 29 CFR part 18, 
subpart B: Provided, That a final administrative order shall be issued 
within one year from the date of the issuance of the recommended 
findings, conclusions and decision of the Administrative Law Judge, or 
the submission of exceptions and responses to exceptions to such 
decision (if any), whichever is later.
    (2) Complaints may be filed by the Solicitor, the Associate 
Solicitor for Civil Rights, Regional Solicitors, and Associate Regional 
Solicitors.
    (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 
(38 U.S.C. 4212 (2001)); references to ``equal opportunity clause'' 
shall mean the equal opportunity clause published at Sec.  60-250.5; 
and references to ``regulations'' shall mean the regulations contained 
in this part.


Sec.  60-250.66  Sanctions and penalties.

    (a) Withholding progress payments. With the prior approval of the 
Director, so much of the accrued payment due on the contract or any 
other contract between the Government contractor and the Federal 
Government may be withheld as necessary to correct any violations of 
the provisions of the Act or this part.
    (b) Termination. A contract may be canceled or terminated, in whole 
or in part, for failure to comply with the provisions of the Act or 
this part.
    (c) Debarment. A contractor may be debarred from receiving future 
contracts for failure to comply with the provisions of the Act or this 
part subject to reinstatement pursuant to Sec.  60-250.68. Debarment 
may be imposed for an indefinite period, or may be imposed for a fixed 
period of not less than six months but no more than three years.
    (d) Hearing opportunity. An opportunity for a formal hearing shall 
be afforded to a contractor before the imposition of any sanction or 
penalty.


Sec.  60-250.67  Notification of agencies.

    The Director shall ensure that the heads of all agencies are 
notified of any debarments taken against any contractor.


Sec.  60-250.68  Reinstatement of ineligible contractors.

    (a) Application for reinstatement. A contractor debarred from 
further contracts for an indefinite period under the Act may request 
reinstatement in a letter filed with the Director 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 Director 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 Director may 
conduct a compliance evaluation of the contractor and may require the 
contractor to supply additional information regarding the request for 
reinstatement. The Director 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 
Director's decision. The petition shall be served on the Director and 
the Associate Solicitor for Civil Rights and shall include the decision 
as an appendix. The Director may file a response within 14 days to the 
petition. The Secretary shall issue the final agency decision denying 
or granting the request for reinstatement. Before reaching a final 
decision, the Secretary may issue such additional orders respecting 
procedure as he or she finds appropriate in the circumstances, 
including an order referring the matter to the Office of Administrative 
Law Judges for an evidentiary hearing where there is a material factual 
dispute that cannot be resolved on the record before the Secretary.


Sec.  60-250.69  Intimidation and interference.

    (a) The contractor shall not harass, intimidate, threaten, coerce, 
or discriminate against any individual because the individual has 
engaged in or may engage in any of the following activities:
    (1) Filing a complaint;
    (2) Assisting or participating in any manner in an investigation, 
compliance 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 protected 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 protected 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 Director against any contractor who violates this 
obligation.


Sec.  60-250.70  Disputed matters related to compliance with the Act.

    The procedures set forth in the regulations in this part govern all 
disputes relative to the contractor's compliance with the Act and this 
part. Any disputes relating to issues other than compliance, including 
contract costs arising out of the contractor's efforts to comply, shall 
be determined by the disputes clause of the contract.

Subpart E--Ancillary Matters


Sec.  60-250.80  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 will 
be one year from the date of

[[Page 23406]]

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. Records required by 
Sec. Sec.  60-250.44(f)(4), 60-250.44(k), 60-250.45(c), and Paragraph 5 
of the equal opportunity clause in Sec.  250.5(a) shall be maintained 
by all contractors for a period of five years from the date of the 
making of the record.
    (b) Failure to preserve records. Failure to preserve complete and 
accurate records as required by this part 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.


Sec.  60-250.81  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, accounts, and records, including electronic records, and 
any other material OFCCP deems relevant to the matter under 
investigation and pertinent to compliance with the Act or this part. 
Contractors must also provide OFCCP access to these materials, 
including electronic records, off-site for purposes of conducting 
compliance evaluations and complaint investigations. Upon request, the 
contractor must provide OFCCP information about all format(s), 
including specific electronic formats, in which its records and other 
information are available. The contractor must provide records and 
other information in any available format requested by OFCCP. 
Information obtained in this manner shall be used only in connection 
with the administration of the Act and in furtherance of the purposes 
of the Act.


Sec.  60-250.82  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 with, and to assist in, the 
implementation of the purposes of the Act.


Sec.  60-250.83  Rulings and interpretations.

    Rulings under or interpretations of the Act and this part shall be 
made by the Director.


Sec.  60-250.84  Responsibilities of local employment service offices.

    (a) Local employment service offices shall refer qualified 
protected veterans to fill employment openings listed by contractors 
with such local offices pursuant to the mandatory listing requirements 
of the equal opportunity clause, and shall give priority to protected 
veterans in making such referrals.
    (b) Local employment service offices shall contact employers to 
solicit the job orders described in paragraph (a) of this section. The 
state employment security agency shall provide OFCCP upon request 
information pertinent to whether the contractor is in compliance with 
the mandatory listing requirements of the equal opportunity clause.

Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    The guidelines in this appendix are in large part derived from, 
and are consistent with, the discussion regarding the duty to 
provide reasonable accommodation contained in the Interpretive 
Guidance on Title I of the Americans with Disabilities Act (ADA) set 
out as an appendix to the regulations issued by the Equal Employment 
Opportunity Commission (EEOC) implementing the ADA (29 CFR part 
1630). Although the following discussion is intended to provide an 
independent ``free-standing'' source of guidance with respect to the 
duty to provide reasonable accommodation under this part, to the 
extent that the EEOC appendix provides additional guidance which is 
consistent with the following discussion, it may be relied upon for 
purposes of this part as well. See Sec.  60-250.1(c). Contractors 
are obligated to provide reasonable accommodation and to take 
affirmative action. Reasonable accommodation under Section 4212, 
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 
Section 4212 and section 503, and includes actions above and beyond 
those required as a matter of nondiscrimination. An example of this 
is the requirement discussed in paragraph 2 of this appendix that a 
contractor shall make an inquiry of a special disabled veteran who 
is having significant difficulty performing his or her job.
    1. A contractor is required to make reasonable accommodations to 
the known physical or mental limitations of an ``otherwise 
qualified'' special disabled veteran, unless the contractor can 
demonstrate that the accommodation would impose an undue hardship on 
the operation of its business. As stated in Sec.  60-250.2(r), a 
special disabled veteran is qualified if he or she satisfies all the 
skill, experience, education and other job-related selection 
criteria, and can perform the essential functions of the position 
with or without reasonable accommodation. A contractor is required 
to make a reasonable accommodation with respect to its application 
process if the special disabled veteran is qualified with respect to 
that

[[Page 23407]]

process. One is ``otherwise qualified'' if he or she is qualified 
for a job, except that, because of a disability, he or she needs a 
reasonable accommodation to be able to perform the job's essential 
functions.
    2. Although the contractor would not be expected to accommodate 
disabilities of which it is unaware, the contractor has an 
affirmative obligation to provide a reasonable accommodation for 
applicants and employees who are known to be special disabled 
veterans. As stated in Sec.  60-250.42 (see also Appendix B of this 
part), the contractor is required to invite applicants who have been 
provided an offer of employment, before they are placed on the 
contractor's payroll, to indicate whether they are a special 
disabled veteran who may be covered by the Act and wish to benefit 
under the contractor's affirmative action program. That section 
further provides that the contractor must seek the advice of special 
disabled veterans who ``self-identify'' in this way as to reasonable 
accommodation. Moreover, Sec.  60-250.44(d) provides that if an 
employee who is a known special disabled veteran is having 
significant difficulty performing his or her job and it is 
reasonable to conclude that the performance problem may be related 
to the disability, the contractor is required to confidentially 
inquire whether the problem is disability related and if the 
employee is in need of a reasonable accommodation.
    3. An accommodation is any change in the work environment or in 
the way things are customarily done that enables a special disabled 
veteran to enjoy equal employment opportunities. Equal employment 
opportunity means an opportunity to attain the same level of 
performance, or to enjoy the same level of benefits and privileges 
of employment, as are available to the average similarly situated 
employee without a disability. Thus, for example, an accommodation 
made to assist an employee who is a special disabled veteran in the 
performance of his or her job must be adequate to enable the 
individual to perform the essential functions of the position. The 
accommodation, however, does not have to be the ``best'' 
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three 
areas in which reasonable accommodations may be necessary: (1) 
Accommodations in the application process; (2) accommodations that 
enable employees who are special disabled veterans to perform the 
essential functions of the position held or desired; and (3) 
accommodations that enable employees who are special disabled 
veterans to enjoy equal benefits and privileges of employment as are 
enjoyed by employees without disabilities.
    4. The term ``undue hardship'' refers to any accommodation that 
would be unduly costly, extensive, substantial, or disruptive, or 
that would fundamentally alter the nature or operation of the 
contractor's business. The contractor's claim that the cost of a 
particular accommodation will impose an undue hardship requires a 
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the 
facility that will be required to provide the accommodation. This 
inquiry requires an analysis of the financial relationship between 
the contractor and the facility in order to determine what resources 
will be available to the facility in providing the accommodation. If 
the contractor can show that the cost of the accommodation would 
impose an undue hardship, it would still be required to provide the 
accommodation if the funding is available from another source, e.g., 
the Department of Veterans Affairs or a state vocational 
rehabilitation agency, or if Federal, state or local tax deductions 
or tax credits are available to offset the cost of the 
accommodation. In the absence of such funding, the special disabled 
veteran must 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. The definition for ``reasonable accommodation'' in Sec.  60-
250.2(s) 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 must consult 
with the special disabled veteran in deciding on the reasonable 
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 special disabled veteran to perform essential functions 
successfully, a reasonable accommodation may require the contractor 
to, for instance, modify or acquire equipment. For the visually-
impaired such accommodations may include providing adaptive hardware 
and software for computers, electronic visual aids, braille devices, 
talking calculators, magnifiers, audio recordings and braille or 
large-print materials. For persons with hearing impairments, 
reasonable accommodations may include providing telephone handset 
amplifiers, telephones compatible with hearing aids and 
telecommunications devices for the deaf (TDDs). For persons with 
limited physical dexterity, the obligation may require the provision 
of goose neck telephone headsets, mechanical page turners and raised 
or lowered furniture.
    7. Other reasonable accommodations of this type may include 
providing personal assistants such as a reader, interpreter or 
travel attendant, permitting the use of accrued paid leave or 
providing additional unpaid leave for necessary treatment. The 
contractor may also be required to make existing facilities readily 
accessible to and usable by special disabled veterans--including 
areas used by employees for purposes other than the performance of 
essential job functions such as restrooms, break rooms, cafeterias, 
lounges, auditoriums, libraries, parking lots and credit unions. 
This type of accommodation will enable employees to enjoy equal 
benefits and privileges of employment as are enjoyed by employees 
who do not have disabilities.
    8. Another of the potential accommodations listed in Sec.  60-
250.2(s) is job restructuring. This may involve reallocating or 
redistributing those nonessential, marginal job functions which a 
qualified special disabled veteran cannot perform to another 
position. Accordingly, if a clerical employee who is a special 
disabled veteran is occasionally required to lift heavy boxes 
containing files, but cannot do so because of a disability, this 
task may be reassigned to another employee. The contractor, however, 
is not required to reallocate essential functions, i.e., those 
functions that the individual who holds the job would have to 
perform, with or without reasonable accommodation, in order to be 
considered qualified for the position. For instance, the contractor 
which has a security guard position which requires the incumbent to 
inspect identity cards would not have to provide a blind special 
disabled veteran with an assistant to perform that duty; in such a 
case, the assistant would be performing an essential function of the 
job for the special disabled veteran. Job restructuring may also 
involve allowing part-time or modified work schedules. For instance, 
flexible or adjusted work schedules could benefit special disabled 
veterans who cannot work a standard schedule because of the need to 
obtain medical treatment, or special disabled veterans with mobility 
impairments who depend on a public transportation system that is not 
accessible during the hours of a standard schedule.
    9. Reasonable accommodation may also include reassignment to a 
vacant position. In general, reassignment should be considered only 
when accommodation within the special disabled veteran's current 
position would pose an undue hardship. Reassignment is not required 
for applicants. However, in making hiring decisions, contractors are 
encouraged to consider applicants who are known special disabled 
veterans for all available positions for which they may be qualified 
when the position(s) applied for is unavailable. Reassignment may 
not be used to limit, segregate, or otherwise discriminate against 
employees who are special disabled veterans by forcing reassignments 
to undesirable positions or to designated offices or facilities. 
Employers should reassign the individual to an equivalent position 
in terms of pay, status,

[[Page 23408]]

etc., if the individual is qualified, and if the position is vacant 
within a reasonable amount of time. A ``reasonable amount of time'' 
must be determined in light of the totality of the circumstances.
    10. The contractor may reassign an individual to a lower graded 
position if there are no accommodations that would enable the 
employee to remain in the current position and there are no vacant 
equivalent positions for which the individual is qualified with or 
without reasonable accommodation. The contractor may maintain the 
reassigned special disabled veteran at the salary of the higher 
graded position, and must do so if it maintains the salary of 
reassigned employees who are not special disabled veterans. It 
should also be noted that the contractor is not required to promote 
a special disabled veteran as an accommodation.
    11. With respect to the application process, reasonable 
accommodations may include the following: (1) Providing information 
regarding job vacancies in a form accessible to special disabled 
veterans who are vision or hearing impaired, e.g., by making an 
announcement available in braille, in large print, or on audio tape, 
or by responding to job inquiries via TDDs; (2) providing readers, 
interpreters and other similar assistance during the application, 
testing and interview process; (3) appropriately adjusting or 
modifying employment-related examinations, e.g., extending regular 
time deadlines, allowing a special disabled veteran who is blind or 
has a learning disorder such as dyslexia to provide oral answers for 
a written test, and permitting an applicant, regardless of the 
nature of his or her ability, to demonstrate skills through 
alternative techniques and utilization of adapted tools, aids and 
devices; and (4) ensuring a special disabled veteran with a mobility 
impairment full access to testing locations such that the 
applicant's test scores accurately reflect the applicant's skills or 
aptitude rather than the applicant's mobility impairment.

Appendix B to Part 60-250--Sample Invitation to Self-Identify

[Sample Invitation to Self-Identify]

    1. This employer is a Government contractor subject to the 
Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 
4212 (Section 4212), as amended, which requires Government 
contractors to take affirmative action to employ and advance in 
employment: (1) Qualified special disabled veterans; (2) veterans of 
the Vietnam era; (3) recently separated veterans; and (4) active 
duty wartime or campaign badge veterans. These classifications are 
defined as follows:
     A ``qualified special disabled veteran'' means someone 
who satisfies the requisite skill, experience, education and other 
job-related requirements of the employment position such veteran 
holds or desires, and who, with or without reasonable accommodation, 
can perform the essential functions of such position, and also is 
one of the following:
     A veteran who is entitled to compensation (or who but 
for the receipt of military retired pay would be entitled to 
compensation) under laws administered by the Department of Veterans 
Affairs for a disability:
     (A) Rated at 30 percent or more; or
     (B) Rated at 10 or 20 percent in the case of a veteran 
who has been determined under 38 U.S.C. 3106 to have a serious 
employment handicap (defined as a significant impairment of a 
veteran's ability to prepare for, obtain, or retain employment 
consistent with such veteran's abilities, aptitudes and interests.); 
or
     A person who was discharged or released from active 
duty because of a service-connected disability.
     A ``veteran of the Vietnam era'' means a person who:
     Served on active duty for a period of more than 180 
days, and was discharged or released therefrom with other than a 
dishonorable discharge, if any part of such active duty occurred:
     In the Republic of Vietnam between February 28, 1961, 
and May 7, 1975; or
     Between August 5, 1964, and May 7, 1975, in all other 
cases; or
     Was discharged or released from active duty for a 
service-connected disability if any part of such active duty was 
performed:
     In the Republic of Vietnam between February 28, 1961, 
and May 7, 1975; or
     Between August 5, 1964, and May 7, 1975, in all other 
cases.
     A ``recently separated veteran'' means any veteran 
during the one-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.
     An ``active duty wartime or campaign badge veteran'' 
means a veteran who served 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.
    2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE ``PRE-
OFFER'' INVITATION TO PROTECTED VETERANS REQUIRED BY 41 CFR 60-
250.42(a). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF 
PROTECTED VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS 
SELF-IDENTIFICATION REQUEST.] If you believe you belong to any of 
the categories of protected veterans listed above, please indicate 
by checking the appropriate box below. As a Government contractor 
subject to Section 4212, we request this information in order to 
measure the effectiveness of the outreach and positive recruitment 
efforts we undertake pursuant to Section 4212.

[ ] I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF PROTECTED 
VETERAN LISTED ABOVE
[ ] I AM NOT A PROTECTED VETERAN
[ ] I CHOOSE NOT TO PROVIDE THIS INFORMATION

    [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE ``POST-
OFFER'' INVITATION TO PROTECTED VETERANS REQUIRED BY 41 CFR 60-
250.42(b). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF 
PROTECTED VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS 
SELF-IDENTIFICATION REQUEST.] As a Government contractor subject to 
Section 4212, we are required to submit a report (VETS-100) to the 
United States Department of Labor each year identifying the number 
of our employees belonging to each ``protected veteran'' category. 
If you believe you belong to any of the categories of protected 
veterans listed above, please indicate by checking the appropriate 
box below.

    I BELONG TO THE FOLLOWING CLASSIFICATIONS OF PROTECTED VETERANS 
(CHOOSE ALL THAT APPLY):

[ ] QUALIFIED SPECIAL DISABLED VETERAN
[ ] VETERAN OF THE VIETNAM ERA
[ ] RECENTLY SEPARATED VETERAN
[ ] ACTIVE WARTIME OR CAMPAIGN BADGE VETERAN

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

[ ] I am a protected veteran, but I choose not to self-identify the 
classifications to which I belong.
[ ] I am NOT a protected veteran.
[ ] I choose not to provide this information.
    If you are a special disabled veteran it would assist us if you 
tell us whether there are accommodations we could make that would 
enable you to perform the job properly and safely, including special 
equipment, changes in the physical layout of the job, changes in the 
way the job is customarily performed, provision of personal 
assistance services or other accommodations. This information will 
assist us in making reasonable accommodations for your disability.
    3. You may inform us of your desire to benefit under the program 
at this time and/or at any time in the future.
    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 special 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 
the Office of Federal Contract Compliance Programs, 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.]

[[Page 23409]]

PART 60-300--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF FEDERAL CONTRACTORS AND SUBCONTRACTORS REGARDING DISABLED 
VETERANS, RECENTLY SEPARATED VETERANS, ACTIVE DUTY WARTIME OR 
CAMPAIGN BADGE 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.
60-300.45 Contractor Established Benchmarks for Hiring
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 local employment service offices.
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

    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 38 U.S.C. 4212 (Section 4212), 
which prohibits discrimination against protected veterans and requires 
Government contractors and subcontractors to take affirmative action to 
employ and advance in employment qualified protected veterans. Disabled 
veterans, recently separated veterans, active duty wartime or campaign 
badge veterans, and Armed Forces service medal veterans are protected 
veterans under Section 4212.
    (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, active duty wartime or campaign badge veterans, or 
Armed Forces service medal protected veterans as compared to the 
protection afforded by this part. It may be a defense to a charge of 
violation of this part that a challenged action is required or 
necessitated by another Federal law or regulation, or that another 
Federal law or regulation prohibits an action (including the provision 
of a particular reasonable accommodation) that would otherwise be 
required by this part.


Sec.  60-300.2  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) Active duty wartime or campaign badge 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.
    (c) 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).
    (d) 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.
    (e) Contract means any Government contract or subcontract.
    (f) Contractor means, unless otherwise indicated, a prime 
contractor or subcontractor holding a contract of $100,000 or more.
    (g) 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 an individual 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;

[[Page 23410]]

    (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.
    (h) Director means the Director, Office of Federal Contract 
Compliance Programs of the United States Department of Labor, or his or 
her designee.
    (i) 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.
    (j) [Reserved]
    (k) 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.
    (l) Equal opportunity clause means the contract provisions set 
forth in Sec.  60-300.5, ``Equal opportunity clause.''
    (m) 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;
    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (n) Government means the Government of the United States of 
America.
    (o) 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) Construction, as used in the definition of Government contract 
and subcontract 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.
    (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) Modification means any alteration in the terms and conditions 
of a contract, including supplemental agreements, amendments and 
extensions.
    (4) Nonpersonal services, as used in the definition of Government 
contract and subcontract of this section, includes, but is not limited 
to, the following: Utility, construction, transportation, research, 
insurance, and fund depository.
    (5) Person, as used in the definition of Government contract and 
subcontract 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.
    (6) Personal property, as used in the definition of Government 
contract and subcontract 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).
    (p) Linkage Agreement means an agreement describing the connection 
between contractors and appropriate recruitment and/or training 
sources. A linkage agreement is to be used by contractors as a source 
of potential applicants for the covered groups the contractor is 
interested in, as required by Sec.  60-300.44(f). The contractor's 
representative that signs the linkage agreement should be the company 
official responsible for the contractor's affirmative action program 
and/or has hiring authority.
    (q) 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.
    (r) Protected veteran means a veteran who is protected under the 
non-discrimination and affirmative action provisions of the Act; 
specifically, a veteran who may be classified as a ``disabled 
veteran,'' ``recently separated veteran,'' ``active duty wartime or 
campaign badge veteran,'' and/or an ``Armed Forces service medal 
veteran,'' as defined by this section.
    (s) 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.
    (t) 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.
    (u) 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; \9\ or
---------------------------------------------------------------------------

    \9\ 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

[[Page 23411]]

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.\10\ 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.)
---------------------------------------------------------------------------

    \10\ 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.
---------------------------------------------------------------------------

    (v) 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.
    (w) 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.
    (x) Secretary means the Secretary of Labor, United States 
Department of Labor, or his or her designee.
    (y) 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.
    (z) 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.
    (aa) TAP means the Department of Defense's Transition Assistance 
Program, or any successor programs thereto. The TAP was designed to 
smooth the transition of military personnel and family members leaving 
active duty via employment workshops and individualized employment 
assistance and training.
    (bb) 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 (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.
    (cc) 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.
    (dd) 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 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

[[Page 23412]]

in work on or under the contract or subcontract.
    (b) Waivers--(1) Specific contracts and classes of contracts. The 
Director 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 Director 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 Director 
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 
Director in writing within 30 days.
    (3) Facilities not connected with contracts. The Director 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 SECTION 4212 PROTECTED VETERANS \11\

    1. The contractor will not discriminate against any employee or 
applicant for employment because he or she is a disabled veteran, 
recently separated veteran, active duty wartime or campaign badge 
veteran, or Armed Forces service medal veteran (hereinafter 
collectively referred to as ``protected veteran(s)'') 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 
protected veteran in all employment practices, including the 
following:
---------------------------------------------------------------------------

    \11\ The definitions set forth in 41 CFR 60-300.2 apply to the 
terms used throughout this Clause, and they are incorporated herein 
by reference.
---------------------------------------------------------------------------

    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.
    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. In order to satisfy 
the listing requirement described herein, contractors must provide 
information about the job vacancy in the manner and format required 
by the appropriate employment service delivery system to permit that 
system to provide priority referral of veterans protected by Section 
4212 for that job vacancy. Providing information on employment 
openings to a privately run job service or exchange will satisfy the 
contractor's listing obligation only if the privately run job 
service or exchange provides the information to the appropriate 
employment service delivery system in that manner and format in 
which the employment service delivery system requires.
    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 
employment service delivery system in each state where it has 
establishments that: (a) It is a Federal contractor, so that the 
employment service delivery systems are able to identify them as 
such; and (b) it desires priority referrals from the state of 
protected veterans for job openings at all locations within the 
state. The contractor shall also provide to the employment service 
delivery system the name and location of each hiring location within 
the state and the contact information for the contractor official 
responsible for hiring at each location. In the event that the 
contractor uses any external job search organizations to assist in 
its hiring, the contractor shall also provide to the employment 
service delivery system the contact information for the job search 
organization(s). The disclosures required by this paragraph shall be 
updated on an annual basis. As long as the contractor is 
contractually bound to these provisions and has so advised the 
employment service delivery system, there is no need to advise the 
employment service delivery system of subsequent contracts. The 
contractor may advise the employment service delivery system when it 
is no longer bound by this contract clause.
    5. The contractor shall maintain records on an annual basis of 
the number of priority referrals of veterans protected by Section 
4212 that it receives from each employment service delivery system, 
the total number of referrals it receives from each employment 
service delivery system, and the ratio of priority referrals to 
total referrals. The contractor shall maintain these records for a 
period of five (5) years.
    6. 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.

[[Page 23413]]

    7. 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 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.
    8. The contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor issued pursuant to the 
Act.
    9. 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.
    10. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices in a 
form to be prescribed by the Director, Office of Federal Contract 
Compliance Programs, provided by or through the contracting officer. 
Such notices shall state the rights of applicants and employees as 
well as the contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
employees and applicants who are protected veterans. The contractor 
must ensure that applicants or employees who are disabled veterans 
are provided the notice in a form that is accessible and 
understandable to the disabled veteran (e.g., providing Braille or 
large print versions of the notice, or posting the notice for visual 
accessibility to persons in wheelchairs). With respect to employees 
who do not work at a physical location of the contractor, a 
contractor will satisfy its posting obligations by posting such 
notices in an electronic format, provided that the contractor 
provides computers that can access the electronic posting to such 
employees, or the contractor has actual knowledge that such 
employees otherwise are able to access the electronically posted 
notices. Electronic notices for employees must be posted in a 
conspicuous location and format on the company's intranet or sent by 
electronic mail to employees. An electronic posting must be used by 
the contractor to notify job applicants of their rights if the 
contractor utilizes an electronic application process. Such 
electronic applicant notice must be conspicuously stored with, or as 
part of, the electronic application.
    11. 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 Section 4212, and is committed to take 
affirmative action to employ and advance in employment, and shall 
not discriminate against, protected veterans.
    12. 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 Section 4212 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 
Director, Office of Federal Contract Compliance Programs, may direct 
to enforce such provisions, including action for noncompliance.
    13. The contractor must, in all solicitations or advertisements 
for employees placed by or on behalf of the contractor, state that 
all qualified applicants will receive consideration for employment 
without regard to their status as a protected veteran.


[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 must be appropriate to identify 
properly the parties and their undertakings.
    (d) Inclusion of the equal opportunity clause in the contract. It 
shall be necessary to include the equal opportunity clause verbatim in 
the contract.
    (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.
    (f) Duties of contracting agencies. Each contracting agency shall 
cooperate with the Director 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 Director 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 Director, and taking such actions for 
noncompliance as are set forth in Sec. 60-300.66 as may be ordered by 
the Secretary or the Director.

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 
protected 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

[[Page 23414]]

that adversely affects his or her employment opportunities or status on 
the basis of that individual's status as a protected veteran. For 
example, the contractor may not segregate protected veterans as a 
whole, or any classification of protected 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 protected 
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 
protected veteran; or
    (2) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (e) Relationship or association with a protected 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 protected 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 applicant or employee who is a 
qualified 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 applicant or employee who is a qualified 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, unless the individual subsequently provides and/or pays for a 
reasonable accommodation as described in paragraph 4 of Appendix A of 
this part.
    (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 
protected 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 protected 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 protected 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 protected 
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(g) 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

[[Page 23415]]

before the applicant begins his or her employment duties, and may 
condition an offer of employment on the results of such examination 
(and/or inquiry), if all entering employees in the same job category 
are subjected to such an examination (and/or inquiry) regardless of 
their status as a 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 shall 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 23416]]

    (c) The affirmative action program shall be reviewed and updated 
annually by the official designated by the contractor pursuant to Sec.  
60-300.44(i).
    (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. In the event that the contractor has 
employees who do not work at a physical establishment, the contractor 
shall inform such employees about the availability of the affirmative 
action program by other means.


Sec.  60-300.42  Invitation to self-identify.

    (a) Pre-offer. The contractor shall invite applicants to inform the 
contractor whether the applicant believes that he or she is a protected 
veteran who may be covered by the Act. This invitation may be included 
in the application materials for the position, but in any circumstance 
shall be provided to applicants prior to making an offer of employment 
to a job applicant. Additionally, the contractor may invite disabled 
veterans to self-identify as such 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) Post-offer. At any time after the offer of employment but 
before the applicant begins his or her job duties, the contractor shall 
invite applicants to inform the contractor whether the applicant 
believes that he or she is a disabled veteran, recently separated 
veteran, active duty wartime or campaign badge veteran, or Armed Forces 
service medal veteran who may be covered by the Act.
    (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.)
    (d) If an applicant identifies himself or herself as a disabled 
veteran in the post-offer self-identification detailed in paragraph (b) 
of this section, the contractor must inquire with the applicant whether 
an accommodation is necessary, and if so, must engage in an interactive 
process with applicant regarding reasonable accommodation. The 
contractor 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 relieves the contractor of its 
obligation to take affirmative action with respect to those applicants 
or employees who are known to the contractor to be protected veterans.
    (g) Nothing in this section relieves 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 against protected veterans, and 
shall take affirmative action to employ and advance in employment 
qualified protected 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 elements:
    (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 provided the notice in a form that is accessible and 
understandable to the disabled veteran (e.g., providing Braille or 
large print versions of the notice, or posting the notice for visual 
accessibility to persons in wheelchairs). The policy statement shall 
indicate the chief executive officer's support for the contractor's 
affirmative action program, 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 
shall 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 protected 
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 Section 4212 or 
any other Federal, state or local law requiring equal opportunity for 
protected veterans;
    (3) Opposing any act or practice made unlawful by Section 4212 or 
its implementing regulations in this part or any other Federal, state 
or local law requiring equal opportunity for protected veterans; or
    (4) Exercising any other right protected by Section 4212 or its 
implementing regulations in this part.
    (b) Review of personnel processes. The contractor shall ensure that 
its personnel processes provide for careful, thorough, and systematic 
consideration of the job qualifications of applicants and employees who 
are known protected 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 protected 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

[[Page 23417]]

issue. The contractor shall ensure that its personnel processes do not 
stereotype protected veterans in a manner which limits their access to 
all jobs for which they are qualified. The contractor shall review such 
processes on at least an annual basis 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. These 
procedures shall, at a minimum, include the following steps:
    (1) For each applicant who is a protected veteran, the contractor 
shall be able to identify:
    (i) each vacancy for which the applicant was considered; and
    (ii) each training program for which the applicant was considered.
    (2) For each employee who is a protected veteran, the contractor 
shall be able to identify:
    (i) each promotion for which the protected veteran was considered; 
and
    (ii) each training program for which the protected veteran was 
considered.
    (3) In each case where an employee or applicant who is a protected 
veteran is rejected for employment, promotion, or training, the 
contractor shall 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, shall be treated as confidential medical records in 
accordance with Sec.  60-300.23(d). These materials shall 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 to place a disabled veteran on the job, the contractor 
shall make a record containing a description of the accommodation. The 
record shall be treated as a confidential medical record in accordance 
with Sec.  60-300.23(d).
    (c) Physical and mental qualifications. (1) The contractor shall 
provide in its affirmative action program, and shall adhere to, a 
schedule for the annual 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. The contractor shall document the methods used to complete 
the annual review, the results of the annual review, and any actions 
taken in response. These documents shall be retained as employment 
records subject to the recordkeeping requirements of Sec.  60-300.80.
    (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 has 
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(g) defining direct threat.) Once the 
contractor believes that a direct threat exists, the contractor shall 
create a statement of reasons supporting its belief, addressing each 
the criteria for ``direct threat'' listed in Sec.  60-300.2(f). This 
statement shall be treated as a confidential medical record in 
accordance with Sec.  60-300.23, and shall be retained as an employment 
record subject to the recordkeeping requirements of Sec.  60-300.80.
    (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 protected veteran.
    (f) External dissemination of policy, outreach and positive 
recruitment.
    (1) Required outreach efforts. The contractor shall undertake the 
outreach and positive recruitment activities listed below:
    (i) The contractor shall establish linkage agreements enlisting the 
assistance and support of the Local Veterans' Employment Representative 
in the local employment service office nearest the contractor's 
establishment; and at least one of the following persons and 
organizations in recruiting and developing training opportunities for 
protected veterans to fulfill its commitment to provide meaningful 
employment opportunities to such veterans:
    (A) The Department of Veterans Affairs Regional Office nearest the 
contractor's establishment;
    (B) The veterans' counselors and coordinators (Vet-Reps) on college 
campuses;
    (C) The service officers of the national veterans' groups active in 
the area of the contractor's establishment;
    (D) Local veterans' groups and veterans' service centers near the 
contractor's establishment; and
    (E) The Department of Defense Transition Assistance Program (TAP), 
or any subsequent program that, in whole or in part, might replace TAP.
    (ii) The contractor shall also consult the Employer Resources 
section of the National Resource Directory (http://www.nationalresourcedirectory.gov/employment/employer_resources), or 
any future service that replaces or complements it, and tablish a 
linkage agreement with one or more of the veterans' service 
organizations listed on the directory, other than the agencies listed 
in (A) through (E) above, for such purposes as advice, technical 
assistance, and referral of potential employees. Technical assistance 
from the resources described in this paragraph may consist of advice on 
proper placement, recruitment, training and accommodations contractors 
may undertake, but no such resource providing technical assistance 
shall have authority to approve or disapprove the acceptability of 
affirmative action programs.
    (iii) The contractor must send written notification of company 
policy related to its affirmative action efforts to all subcontractors, 
including

[[Page 23418]]

subcontracting vendors and suppliers, requesting appropriate action on 
their part.
    (2) Suggested outreach efforts. The contractor should consider 
taking the actions listed below to fulfill its commitment to provide 
meaningful employment opportunities to protected veterans:
    (i) Formal briefing sessions should be held, preferably on company 
premises, with representatives from recruiting sources. Contractor 
facility 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. At any such 
briefing sessions, the company official in charge of the contractor's 
affirmative action program should be in attendance when possible. 
Formal arrangements should be made for referral of applicants, follow 
up with sources, and feedback on disposition of applicants.
    (ii) The contractor's recruitment efforts at all educational 
institutions should incorporate special efforts to reach students who 
are protected veterans.
    (iii) 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.
    (iv) Protected veterans should be made available for participation 
in career days, youth motivation programs, and related activities in 
their communities.
    (v) The contractor should take any other positive steps it deems 
necessary to attract qualified protected 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 any of the classifications 
of protected veterans.
    (vi) The contractor, in making hiring decisions, shall consider 
applicants who are known protected veterans for all available positions 
for which they may be qualified when the position(s) applied for is 
unavailable.
    (3) Assessment of External Outreach and Recruitment Efforts. The 
contractor shall, on an annual basis, review the outreach and 
recruitment efforts it has taken over the previous twelve months to 
evaluate their effectiveness in identifying and recruiting qualified 
protected veterans. The contractor shall document each evaluation, 
including at a minimum the criteria it used to evaluate the 
effectiveness of each effort and the contractor's conclusion as to 
whether each effort was effective. Among these criteria shall be the 
data collected pursuant to paragraph (k) of this section for the 
current year and the two most recent previous years. The contractor's 
conclusion as to the effectiveness of its outreach efforts shall be 
reasonable as determined by OFCCP in light of these regulations. If the 
contractor concludes the totality of its efforts were not effective in 
identifying and recruiting qualified protected veterans, it shall 
identify and implement alternative efforts listed in paragraphs (f)(1) 
or (f)(2) of this section in order to fulfill its obligations.
    (4) Recordkeeping Obligation. The contractor shall document all 
linkage agreements and all other activities it undertakes to comply 
with the obligations of this paragraph, and retain these documents for 
a period of five (5) years.
    (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 the internal procedures 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 protected veterans. It is not contemplated that 
the contractor's 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.
    (2) The contractor shall 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 protected veterans. The contractor shall 
schedule meetings on an annual basis with all employees to discuss its 
affirmative action policies, explain contractor and individual employee 
responsibilities under these policies, and identify opportunities for 
advancement;
    (iii) Conduct 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;
    (iv) Discuss the policy thoroughly in any employee orientation and 
management training programs;
    (v) If the contractor is party to a collective bargaining 
agreement, it shall meet with union officials and/or employee 
representatives to inform them of the contractor's policy, and request 
their cooperation;
    (3) The contractor is encouraged to additionally implement and 
disseminate this policy internally as follows:
    (i) If the contractor has a company newspaper, magazine, annual 
report, or other paper or electronic publication distributed to 
employees, it should publicize its affirmative action policy in these 
publications, and include in these publications, where appropriate, 
features on disabled veteran employees and articles on the 
accomplishments of protected veterans, with their consent.
    (4) The contractor shall document those activities it undertakes to 
comply with the obligations of paragraph (g), and retain these 
documents as employment records subject to the recordkeeping 
requirements of Sec.  60-300.80.
    (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 protected veterans have had the 
opportunity to participate in all company sponsored educational, 
training, recreational and social activities;
    (v) Measure the contractor's compliance with the affirmative action 
program's specific obligations; and
    (vi) Document the actions taken to comply with the obligations of 
paragraphs (i) through (v) above, and retain these documents as 
employment records subject to the recordkeeping requirements of Sec.  
60-300.80.
    (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 shall appear on

[[Page 23419]]

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. In addition to the training set forth in paragraph 
(g)(2)(ii) of this section, 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. This training shall 
include, but not be limited to, the benefits of employing protected 
veterans, appropriate sensitivity toward protected veteran applicants 
and employees, and the legal responsibilities of the contractor and its 
agents regarding protected veterans generally and disabled veterans 
specifically, such as reasonable accommodation for qualified disabled 
veterans and the related rights and responsibilities of contractors and 
protected veterans. The contractor shall create contemporaneous records 
documenting the specific subject matter(s) covered in the training, who 
conducted the training, who received the training, and when the 
training took place. The contractor shall retain these documents, and 
any written or electronic materials used for the training required by 
this section, as employment records subject to the recordkeeping 
requirements of Sec.  60-300.80.
    (k) Data Collection Analysis. The contractor shall document and 
maintain the following computations or comparisons pertaining to 
applicants and hires on an annual basis:
    (1) The number of priority referrals of veterans protected by this 
part that the contractor received from applicable employment service 
delivery system(s);
    (2) The number of total referrals that the contractor received from 
applicable employment service delivery system(s);
    (3) The ratio of priority referrals of veterans to total referrals 
(referral ratio);
    (4) The number of applicants who self-identified as protected 
veterans pursuant to Sec.  60-300.42(a), or who are otherwise known as 
protected veterans;
    (5) The total number of job openings and total number of jobs 
filled;
    (6) The ratio of jobs filled to job openings;
    (7) The total number of applicants for all jobs;
    (8) The ratio of protected veteran applicants to all applicants 
(applicant ratio);
    (9) The number of protected veteran applicants hired;
    (10) The total number of applicants hired; and
    (11) The ratio of protected veterans hired to all hires (hiring 
ratio). The number of hires shall include all employees as defined in 
Sec.  60-300.2.


Sec.  60-300.45  Contractor established benchmarks for hiring.

    (a) Purpose: The purpose of establishing benchmarks is to create a 
quantifiable method by which the contractor can measure its progress 
toward achieving equal employment opportunity for protected veterans.
    (b) Hiring benchmarks, expressed as the percentage of total hires 
that are protected veterans that the contractor will seek to hire, 
shall be established by the contractor on an annual basis. In 
establishing these benchmarks, contractors shall take into account the 
following information:
    (1) The average percentage of veterans in the civilian labor force 
in the State(s) where the contractor is located over the preceding 
three years, as calculated by the Bureau of Labor Statistics and 
published on the OFCCP Web site;
    (2) The number of veterans, over the previous four quarters, who 
were participants in the employment service delivery system in the 
State where the contractor is located, as tabulated by the Veterans' 
Employment and Training Service and published on the OFCCP Web site;
    (3) The referral ratio, applicant ratio, and hiring ratio for the 
previous year, as set forth in Sec.  60-300.44(k);
    (4) The contractor's recent assessments of the effectiveness of its 
external outreach and recruitment efforts, as set forth in Sec.  60-
300.44(f)(3); and
    (5) Any other factors, including but not limited to the nature of 
the contractor's job openings and/or its location, which would tend to 
affect the availability of qualified protected veterans.
    (c) The contractor shall document the hiring benchmark it has 
established each year, detailing each of the factors that it considered 
in establishing the hiring benchmark and the relative significance of 
each of these factors. The contractor shall retain this document for a 
period of five (5) years.

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 protected 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. OFCCP may extend the temporal scope 
of the desk audit beyond that set forth in the scheduling letter if 
OFCCP deems it necessary to carry out its investigation of potential 
violations of this Part. 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 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 Section 4212 and its regulations;
    (3) Compliance check. A determination of whether the contractor

[[Page 23420]]

has maintained records consistent with Sec.  60-300.80; OFCCP may 
request the documents be provided either on-site or off-site; or
    (4) Focused review. A 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.
    (d) Pre-award compliance evaluations. Each agency will include in 
the invitation for bids for each formally advertised nonconstruction 
contract or state at the outset of negotiations for each negotiated 
contract, that if the award, when let, should total $10 million or 
more, the prospective contractor and its known first-tier 
subcontractors with subcontracts of $10 million or more will be subject 
to a compliance evaluation before the award of the contract unless 
OFCCP has conducted an evaluation and found them to be in compliance 
with Section 4212 within the preceding 24 months. The awarding agency 
will notify OFCCP and request appropriate action and findings in 
accordance with this subsection. Within 15 days of the notice OFCCP 
will inform the awarding agency of its intention to conduct a pre-award 
compliance evaluation. If OFCCP does not inform the awarding agency 
within that period of its intention to conduct a pre-award compliance 
evaluation, clearance shall be presumed and the awarding agency is 
authorized to proceed with the award. If OFCCP informs the awarding 
agency of its intention to conduct a pre-award compliance evaluation, 
OFCCP will be allowed an additional 20 days after the date that it so 
informs the awarding agency to provide its conclusions. If OFCCP does 
not provide the awarding agency with its conclusions within that 
period, clearance will be presumed and the awarding agency is 
authorized to proceed with the award. .


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 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 employment service delivery system shall 
cooperate with the Director 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 protected 
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 Director 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 Director, 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 Director 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 Director decides to reconsider the 
determination of a Notification of Results of Investigation, the 
Director 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

[[Page 23421]]

conciliation agreement shall be required. The agreement shall provide 
for such remedial action as may be necessary to correct the violations 
and/or deficiencies noted, including, where appropriate (but not 
necessarily limited to) such make whole remedies as back pay and 
retroactive seniority. The agreement shall also specify the time period 
for completion of the remedial action; the period shall be no longer 
than the minimum period necessary to complete the action.


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 Director 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 Director 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; 
references to ``equal opportunity clause'' shall mean the equal 
opportunity clause published at Sec.  60-300.5; and references 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 
Director, 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 Director 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 Director 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 Director 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 Director may 
conduct a compliance evaluation of the contractor and may require the 
contractor to supply additional information regarding the request for 
reinstatement. The

[[Page 23422]]

Director 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 
Director's decision. The petition shall be served on the Director and 
the Associate Solicitor for Civil Rights and Labor-Management and shall 
include the decision as an appendix. The Director 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 protected 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 protected 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 Director 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 will 
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. Records required by Sec. Sec.  60-250.44(f)(4), 60-250.44(k), 
60-250.45(c), and Paragraph 5 of the equal opportunity clause in Sec.  
250.5(a) shall be maintained by all contractors for a period of five 
years from the date of the making of the record.
    (b) Failure to preserve records. Failure to preserve complete and 
accurate records as required by this part 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, accounts, and records, including electronic records, and 
any other material OFCCP deems relevant to the matter under 
investigation and pertinent to compliance with the Act or this part. 
Contractors must also provide OFCCP access to these materials, 
including electronic records, off-site for purposes of conducting 
compliance evaluations and complaint investigations. Upon request, the 
contractor must provide OFCCP information about all format(s), 
including specific electronic formats, in which its records and other 
information are available. The contractor must provide records and 
other information in any available format requested by OFCCP. 
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.

[[Page 23423]]

    (b) OFCCP shall use its best efforts, directly or through 
contractors, subcontractors, local officials, the Department of 
Veterans Affairs, vocational rehabilitation facilities, and all other 
available instrumentalities, to cause any labor organization, 
recruiting and training agency or other representative of workers who 
are employed by a contractor to cooperate with, and to assist in, the 
implementation of the purposes of the Act.


Sec.  60-300.83  Rulings and interpretations.

    Rulings under or interpretations of the Act and this part shall be 
made by the Director.


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

    By statute, appropriate employment service delivery systems are 
required to refer qualified protected 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 
protected 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 Section 4212, 
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 
Section 4212 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(t), 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 must seek the advice of disabled veterans who 
``self-identify'' in this way as to reasonable 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 
must 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. The definition for ``reasonable accommodation'' in Sec.  60-
300.2(u) 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 must consult 
with the disabled veteran in deciding on the reasonable 
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.

[[Page 23424]]

    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, 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(u) 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'' must 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, reasonable 
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

    [Sample Invitation to Self-Identify]
    1. This employer is a Government contractor subject to the 
Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 
4212 (Section 4212), as amended, which requires Government 
contractors to take affirmative action to employ and advance in 
employment: (1) Qualified disabled veterans; (2) recently separated 
veterans; (3) active duty wartime or campaign badge veterans; and 
(4) Armed Forces service medal veterans. These classifications are 
defined as follows:
     A ``qualified disabled veteran'' means someone who has 
the ability to perform the essential functions of the employment 
position with or without reasonable accommodation, and also is one 
of the following:
     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
     a person who was discharged or released from active 
duty because of a service-connected disability
     A ``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.
     An ``active duty wartime or campaign badge veteran'' 
means a veteran who served 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.
     An ``Armed forces service medal veteran'' means a 
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.
    2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE ``PRE-
OFFER'' INVITATION TO PROTECTED VETERANS REQUIRED BY 41 CFR 60-
300.42(a). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF 
PROTECTED VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS 
SELF-IDENTIFICATION REQUEST.] If you believe you belong to any of 
the categories of protected veterans listed above, please indicate 
by checking the appropriate box below. As a Government contractor 
subject to Section 4212, we request this information in order to 
measure the effectiveness of the outreach and positive recruitment 
efforts we undertake pursuant to Section 4212.

[ ] I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF PROTECTED 
VETERAN LISTED ABOVE
[ ] I AM NOT A PROTECTED VETERAN
[ ] I CHOOSE NOT TO PROVIDE THIS INFORMATION

    [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE ``POST-
OFFER'' INVITATION TO PROTECTED VETERANS REQUIRED BY 41 CFR 60-
300.42(b). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF 
PROTECTED VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS 
SELF-IDENTIFICATION REQUEST.] As a Government contractor subject to 
Section 4212, we are required to submit a report (VETS-100A) to the 
United States Department of Labor each year identifying the number 
of our employees belonging to each ``protected veteran'' category. 
If you

[[Page 23425]]

believe you belong to any of the categories of protected veterans 
listed above, please indicate by checking the appropriate box below.

    I BELONG TO THE FOLLOWING CLASSIFICATIONS OF PROTECTED VETERANS 
(CHOOSE ALL THAT APPLY):

[ ] QUALIFIED DISABLED VETERAN
[ ] RECENTLY SEPARATED VETERAN
[ ] ACTIVE WARTIME OR CAMPAIGN BADGE VETERAN
[ ] ARMED FORCES SERVICE MEDAL VETERAN
-----------------------------------------------------------------------

[ ] I am a protected veteran, but I choose not to self-identify the 
classifications to which I belong.
[ ] I am NOT a protected veteran.
[ ] I choose not to provide this information.

    If you are a disabled veteran it would assist us if you tell us 
whether there are accommodations we could make that would enable you 
to perform the job properly and safely, including special equipment, 
changes in the physical layout of the job, changes in the way the 
job is customarily performed, provision of personal assistance 
services or other accommodations. This information will assist us in 
making reasonable accommodations for your disability.
    3. You may inform us of your desire to benefit under the program 
at this time and/or at any time in the future.
    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 
the Office of Federal Contract Compliance Programs, 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.]

[FR Doc. 2011-8693 Filed 4-25-11; 8:45 am]
BILLING CODE 4510-45-P