Labor & Employment Practice
MAY 2011
BEIJING CHARLOTTE CHICAGO GENEVA HONG KONG HOUSTON LONDON LOS ANGELES MOSCOW NEW YORK NEWARK PARIS SAN FRANCISCO SHANGHAI WASHINGTON, D.C.
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OFCCP Proposes Amending Affirmative Action and Nondiscrimination Regulations For Veteran Hiring and Recruitment Under VEVRAA On April 26, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rulemaking that would amend its regulations concerning contractor affirmative action and nondiscrimination obligations toward protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). VEVRAA requires government contractors and subcontractors to “take affirmative action to employ and advance in employment” protected veterans. Significantly, the proposed changes would require contractors for the first time to establish “hiring benchmarks” to measure their progress in hiring veterans, and would further impose complicated requirements for establishing the hiring benchmarks and keeping records concerning their administration. OFCCP proposes several changes to the veteran outreach and recruiting requirements. For example, the rule proposes requiring contractors to engage in at least three specified types of veteran outreach and recruitment efforts each year and would also require that all applicants be invited to self-identify as a “protected veteran” before they are offered a job. The proposed rule further clarifies the applicable mandatory job listing requirements, which require contractors to provide job vacancy and contact information for each of their locations to an appropriate employment service delivery system. Section 60-250.45 of the proposed regulations would require for the first time that all contractors establish annual hiring benchmarks to assist in measuring the effectiveness of their affirmative action efforts. The proposed annual hiring benchmark would be required to reflect the annual percentage of total hires the contractor seeks to employ who are protected veterans. In establishing hiring benchmarks, the proposed rule would require contractors to consult a number of different sources of information. Section 60-250.45 lists the different sources contractors must take into account in determining their annual hiring benchmarks. These sources include: (1) the percentage of veterans in the civilian labor force, tabulated by BLS and published on OFCCP’s website; (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 website; (3) the referral ratio, applicant ratio, and hiring ratios as defined in proposed Section 60-250.44(k); (4) the contractor’s recent assessments of the effectiveness of its external outreach and recruitment efforts, as expressed in proposed Section 60-250.44(f)(3); and (5) any other factors, including but not limited to, the nature of the contractor’ job openings and/or its location, which would tend to affect the availability of qualified protected veterans. Contractors would be required to “detail each of the factors that it considered in establishing the hiring benchmark and the relative significance of these factors” and retain that data for five years. Comments on the notice of proposed rulemaking must be submitted by June 25, 2011. Affected clients can submit comments directly to the Department of Labor, or contact one of the Winston & Strawn labor and employment partners listed to have their views taken into account in comments that will be submitted by the firm.
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Paris (33) 1-53-64-82-82 Sébastien Ducamp Barbara Hart
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