Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans, 72148-72166 [05-23403]

Download as PDF 72148 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs 41 CFR Part 60–250 RIN 1215–AB24 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans Office of Federal Contract Compliance Programs, Labor. ACTION: Final rule. AGENCY: SUMMARY: This final rule revises the regulations implementing the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (2001) (‘‘Section 4212’’ or ‘‘VEVRAA’’). This rule makes three general revisions to the VEVRAA regulations. First, it generally conforms the VEVRAA regulations to the Veterans Employment Opportunities Act of 1998 (VEOA) and the Veterans Benefits and Health Care Improvement Act of 2000 (VBHCIA). Second, it removes references to letters of commitment because the violations formerly incorporated into the letter of commitment are now summarized in the Compliance Evaluation Closure Letter. Third, it removes language about the effective date of the rule published in 1998 because that language is obsolete. EFFECTIVE DATE: These regulations are effective January 3, 2006. FOR FURTHER INFORMATION CONTACT: James C. Pierce, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, Washington, DC 20210. Telephone: (202) 693–0102 (voice) or (202) 693–1337 (TTY). SUPPLEMENTARY INFORMATION: Background Prior to recent amendments, the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (‘‘Section 4212’’ or ‘‘VEVRAA’’) required parties holding Government contracts or subcontracts of $10,000 or more to ‘‘take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era.’’ The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has published regulations implementing VEVRAA at 41 CFR part 60–250. VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 This final rule revises the OFCCP regulations to conform to the requirements of the Veterans Employment Opportunities Act of 1998 (VEOA) and the Veterans Benefits and Health Care Improvement Act of 2000 (VBHCIA). Today’s rule does not incorporate changes made to VEVRAA by the Jobs for Veterans Act (JVA) that was signed by the President on November 7, 2002. JVA amended the VEVRAA requirements applicable to Federal contracts and subcontracts entered on or after December 1, 2003, by raising the contract amount threshold for VEVRAA coverage, modifying the categories of protected veterans, and making changes to job listing requirements. At a later date, OFCCP will issue regulations implementing the JVA changes that will apply to contracts entered on or after December 1, 2003. Except as set forth below, the contents of part 60–250 remain unchanged from the rule being amended. VEOA amended section 4212(a) in two ways. First, section 7 of VEOA raised the amount of a contract required to establish VEVRAA coverage from $10,000 to $25,000. Second, section 7 of VEOA granted VEVRAA protection to a new group of veterans, called ‘‘other protected veterans’’—those who have served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. VBHCIA amended VEVRAA by creating a new class of protected veteran, called ‘‘recently separated veteran.’’ Recently separated veteran is defined in VEVRAA as ‘‘any veteran during the one-year period beginning on the date of such veteran’s discharge or release from active duty.’’ However, the term ‘‘recently separated veteran’’ is also defined in the Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.) (WIA) as ‘‘any veteran who applies for participation under this chapter within 48 months after the discharge or release from active military, naval, or air service.’’ The WIA is administered by the Department of Labor’s Employment and Training Administration (ETA), which has issued regulations implementing the WIA at 20 CFR part 660–671. Although ETA does not refer to ‘‘recently separated veteran’’ in its regulations, ETA uses the WIA definition of ‘‘recently separated veteran.’’ To eliminate confusion, ‘‘recently separated veteran’’ means, for the purposes of this rule, any veteran during the one-year period beginning on the date of such veteran’s discharge or release from active duty. Today’s rule does not carry forward several outdated provisions of the rule being amended relating to the PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 implementation of that rule after it was published: (1) The effective date of that rule; (2) a statement that the rule did not apply retroactively; and (3) a statement that contractors needed to update their AAPs within 120 days of the rule’s effective date (January 4, 1999). Information about the implementation of today’s rule is contained in the preamble, rather than in the rule. Today’s rule will become effective 30 days after publication and will apply prospectively. Contractors are required to update their affirmative action programs (AAP) to reflect the requirements of today’s rule during their standard 12-month AAP review and updating cycle. A contractor that has prepared an AAP under the old regulations may maintain that AAP for the duration of the AAP year even if that AAP year overlaps with the effective date of the new regulations. The rule being amended references letters of commitment. OFCCP discontinued the use of the letter of commitment, which was used to resolve minor technical deficiencies, in 1998. OFCCP replaced the letter of commitment with the compliance evaluation closure letter, which is used by OFCCP to close a review where minor or no violations are found. Consequently, references to letters of commitment have been removed from §§ 60–250.62 and 60–250.63. We discuss specific changes in the Section-by-Section Analysis below. Section-by-Section Analysis The following analysis focuses on a comparison of today’s rule with the rule being amended found at 41 CFR part 60–250. The analysis discusses VEOA and VBHCIA where necessary to place today’s rule in context. Sections with no changes are not discussed. Part 60–250 OFCCP is amending the Part heading by adding ‘‘Recently Separated Veterans’’ and ‘‘Other Protected Veterans’’ to include veterans protected under VEOA and VBHCIA. In the table of contents, the heading for §§ 250.62 and 250.63 are updated to correspond to the headings in the regulatory text and the table of contents reference for § 250.85 is deleted (see discussion of those sections below). OFCCP is amending the United States Code authority citation to denote that the VEVRAA statutory authority being referenced is a pre-JVA amendment. As discussed above, JVA amendments to VEVRAA apply only to contracts entered on or after December 1, 2003. Because this regulation draws its authority from the VEVRAA as enacted E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations before its amendment by the JVA, the date in the citation has been added. Subpart A—Preliminary Matters, Equal Opportunity Clause Section 60–250.1 Purpose, Applicability and Construction This section amends paragraphs (a) and (c)(2) by adding ‘‘recently separated veterans’’ and ‘‘other protected veterans’’ to include veterans protected under VEOA and VBHCIA. Additionally, paragraph (b) is amended to state that a Government contract or subcontract of at least $25,000 is covered by the Act. Section 60–250.2 Definitions This section amends paragraphs (j), (k), and (m) (the definitions for the terms ‘‘contractor,’’ ‘‘prime contractor,’’ and ‘‘subcontractor,’’ respectively) to increase the coverage threshold amount from $10,000 to $25,000 to conform to the requirements of the VEOA. Paragraph (q) adds the definition of ‘‘other protected veteran,’’ the new class of veterans protected by VEOA. Paragraph (r) adds the definition of ‘‘recently separated veteran,’’ the new class of veterans protected under VBHCIA. With the addition of paragraphs (q) and (r), we redesignate paragraphs (q) through (u) as paragraphs (s) through (w), respectively. Section 60–250.4 Waivers Coverage and This section amends paragraphs (a)(1) and (a)(2) to increase the contract or subcontract threshold amount from $10,000 to $25,000 to conform to the requirements of the VEOA. Section 60–250.5 Clause Equal Opportunity This section adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to paragraphs (a), (a)(1), (a)(9), and (a)(10) to include veterans protected under VEOA and VBHCIA. Paragraph (a)(11) raises the subcontract or purchase order threshold amount from $10,000 to $25,000 to conform to the requirements of the VEOA. Subpart B—Discrimination Prohibited Section 60–250.21 Prohibitions This section adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to paragraphs (a), (b), (c), (d)(1), (e), (g)(1), and (i) to include veterans protected under VEOA and VBHCIA. VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 Section 60–250.22 Direct Threat Defense This section replaces the reference to § 60–250.2(u) with § 60–250.2(w) to conform to the redesignating in § 60– 250.2. Subpart C—Affirmative Action Program Section 60–250.42 Invitation To SelfIdentify This section adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to paragraphs (b) and (f) to include veterans protected under VEOA and VBHCIA. Section 60–250.43 Affirmative Action Policy This section adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to include veterans protected under VEOA and VBHCIA. Section 60–250.44 Required Contents of Affirmative Action Programs This section adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to paragraphs (a), (a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g)(1), (g)(2)(ii), (g)(2)(vii), and (h)(1)(iv) to include veterans protected under VEOA and VBHCIA. Subpart D—General Enforcement and Complaint Procedures Section 60–250.60 Compliance Evaluations This section adds ‘‘recently separated veteran’’ and ‘‘other protected veteran’’ to paragraph (a) to include veterans protected under VEOA and VBHCIA. The Office of the Assistant Secretary for Veterans’ Employment and Training (OASVET) has been renamed the Veterans’ Employment and Training Service (VETS). The rule is updated with the agency’s current name. Section 60–250.61 Complaint Procedures This section adds ‘‘recently separated veteran’’ and ‘‘other protected veteran’’ to paragraph (b)(iii) to include veterans protected under VEOA and VBHCIA. Section 60–250.62 Conciliation Agreements This section deletes paragraph (b), which referred to letters of commitment. In 1998 OFCCP discontinued the use of the letter of commitment, which was used to resolve minor technical deficiencies. Discontinuing the use of the Letter of Commitment, OFCCP Order Number ADM Notice/Other, Transmittal Number 226 (August 5, 1998). The letter PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 72149 of commitment was replaced with the compliance evaluation closure letter, which is used by OFCCP to close a compliance evaluation when minor or no violations are found. Consequently, the reference in § 60–250.62(b) to the letter of commitment is no longer necessary. The heading for § 250.62 also deletes the reference to the letter of commitment. Section 60–250.63 Violation of Conciliation Agreements We have deleted paragraph (d) because it references the letter of commitment. As discussed above, OFCCP no longer uses the letter of commitment. Additionally, the heading to § 250.63 deletes the reference to the letter of commitment. Section 60–250.65 Proceedings Enforcement This rule adds a citation to the preJVA amendment to VEVRAA in paragraph 60–250.65(b)(3). Paragraph (b)(3) states that references in 41 CFR part 60–30 to Executive Order 11246 shall mean the ‘‘Vietnam Era Veterans’ Readjustment Assistance Act, as amended,’’ for purposes of hearings held pursuant to part 60–250. This citation is added because the ‘‘Vietnam Era Veterans’ Readjustment Assistance Act, as amended,’’ references all amendments to VEVRAA, including amendments by JVA. As stated above, this rule does not incorporate amendments to VEVRAA made by JVA. Accordingly, a U.S.C. citation, 38 U.S.C. 4212 (2001), is added to clarify that the reference is to the pre-JVA amendment to VEVRAA. Section 60–250.69 Interference Intimidation and This section adds ‘‘recently separated veterans’’ and ‘‘other protected veterans’’ to paragraphs (a)(2) and (a)(3) to include veterans protected under VEOA and VBHCIA. Subpart E—Ancillary Matters Section 60–250.80 Recordkeeping This rule removes paragraph (c) from § 60–250.80. Paragraph (c) states that the recordkeeping requirements of § 60– 250.80 apply only to records made or kept on or after the date that the Office of Management and Budget has cleared the requirements. This paragraph’s discussion of the effective date for this section is unnecessary because the date referenced the new recordkeeping requirement contained in the rule published in 1998. E:\FR\FM\01DER2.SGM 01DER2 72150 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations Section 60–250.84 Responsibilities of Local Employment Service Offices This section adds ‘‘recently separated veterans’’ and ‘‘other protected veterans’’ to paragraph (a) to include veterans protected under VEOA and VBHCIA. Section 60–250.85 Effective Date This rule removes § 60–250.85. This section’s discussion of effective dates for the rule being amended is unnecessary, as OFCCP no longer includes effective dates in the regulations. Appendix A to Part 60–250—Guidelines on a Contractor’s Duty To Provide Reasonable Accommodation This appendix amends paragraphs 5 and 8 to replace the reference to § 60– 250.2(r) with § 60–250.2(t) to conform to the redesignating in § 60–250.2. We also update the phone numbers for the EEOC and add a second toll free number for the Job Accommodation Network (JAN) in paragraph 6. Lastly, we update this appendix with the information that JAN is now operated by the Office of Disability Employment Policy, in the Department of Labor. Appendix B to Part 60–250—Sample Invitation To Self-Identify Appendix B adds ‘‘recently separated veteran(s)’’ and ‘‘other protected veteran(s)’’ to paragraphs 1, 2, and 7 to include veterans protected under VEOA and VBHCIA. In addition, in paragraph 2 we place the definitions of ‘‘recently separated veteran’’ and ‘‘other protected veteran’’ after the definition of veteran of the Vietnam era. Appendix C to Part 60–250—Review of Personnel Processes Appendix C adds ‘‘recently separated veteran’’ and ‘‘other protected veteran’’ to paragraphs 1, 2, and 3 to include veterans protected under VEOA and VBHCIA. Regulatory Procedures Publication in Final The Department of Labor has determined that this rulemaking need not be published as a proposed rule, as generally required by the Administrative Procedure Act, 5 U.S.C. 553. The three substantive revisions in the rule are nondiscretionary ministerial actions that merely incorporate, without change, statutory amendments into preexisting regulations: (1) The increase in the contract threshold amount from $10,000 to $25,000; (2) The addition of the group of veterans protected under VEOA; and VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 (3) The addition of the group of veterans protected under VBHCIA. Because these changes are required by statute, there is good cause for OFCCP to find that the notice and public comment procedure is unnecessary pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). This rule removes five outdated regulatory references. First, the Department is amending its statutory authority citation to reference VEVRAA as it stood before amendment by JVA, because this regulation will not apply to contracts and subcontracts covered by VEVRAA as amended by JVA. Second, the Department is deleting paragraph (c) in § 60–250.80. This paragraph’s discussion of the effective date of the recordkeeping requirements of § 60–250 is unnecessary because the date in the regulation referenced new recordkeeping requirements contained in the rule published in 1998. Third, the Department is deleting § 60–250.85. This section’s discussion of effective dates for the rule being amended is unnecessary because the dates referenced in this section applied to the rule published in 1998. Additionally, information on effective dates in DOL regulations is now contained in a rule’s preamble. Fourth, the Department has replaced reference to the ‘‘President’s Committee on Employment of People with Disabilities’’ with ‘‘Office of Disability Employment Policy, Labor’’ to account for the transition of duties between the two groups. These changes are merely housekeeping amendments that will not have an effect on regulated entities. Consequently, there is good cause for OFCCP to find that the notice and public comment procedure is unnecessary pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). Finally, this rule removes reference to the letter of commitment. OFCCP discontinued the use of the letter of commitment in 1998. In the past, a letter of commitment was used to resolve minor technical deficiencies identified by OFCCP during a compliance review of a Federal contractor or subcontractor. Because this is a change of agency procedure or practice, notice and public comment are not required under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A). Executive Order 12866 The Department is issuing this rule in conformance with Executive Order 12866. This rule is not significant for purposes of Executive Order 12866 and therefore need not be reviewed by the Office of Management and Budget. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 The Department bases its conclusion on the fact that this final rule does not substantively change the existing obligation of Federal contractors to apply a policy of nondiscrimination and affirmative action in their employment of protected veterans. For example, although the categories of protected veterans are expanded pursuant to statutory changes, the substance of the nondiscrimination and affirmative action obligations to be afforded protected veterans remains the same. Executive Order 13132 OFCCP has reviewed the rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have ‘‘federalism implications.’’ The 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.’’ Regulatory Flexibility Act The rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, we certify that the rule will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Unfunded Mandates Reform Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government. Unfunded Mandates Reform Act of 1995—This does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more. Paperwork Reduction Act The information collection requirements contained in the existing VEVRAA regulations, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1215–0072 (Recordkeeping and Reporting Requirements-Supply and Service) and OMB Control No. 1215–0163 (Construction Recordkeeping and Reporting). The information collection requirements contained in the existing complaint procedures regulation are currently approved under OMB Control E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations No. 1215–0131. This final rule amends the regulations implementing VEVRAA to incorporate the changes to the contract coverage threshold and the categories of covered veterans made by VEOA and VBHCIA. The increase in the contract coverage threshold from $10,000 to $25,000 may result in a decrease in the number of respondents and burden hours. However, this final rule does not make any changes to the currently approved information collections. Consequently, this final rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. List of Subjects in 41 CFR Part 60–250 Administrative practice and procedure, Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Individuals with disabilities, Investigations, Reporting and recordkeeping requirements, and Veterans. Signed at Washington, DC, this 22nd day of November, 2005. Victoria A. Lipnic, Assistant Secretary for Employment Standards. Charles E. James, Sr., Deputy Assistant Secretary for Federal Contract Compliance. Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of Federal Regulations, Chapter 60, Part 60–250, is revised to read as follows: I PART 60–250—AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS, AND OTHER PROTECTED 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. VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 Subpart C—Affirmative Action Program 60–250.40 Applicability of the affirmative action program requirement. 60–250.41 Availability of affirmative action program. 60–250.42 Invitation to self-identify. 60–250.43 Affirmative action policy. 60–250.44 Required contents of affirmative action programs. Subpart D—General Enforcement and Complaint Procedures 60–250.60 Compliance 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 Appendix C to Part 60–250—Review of Personnel Processes Authority: 29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002); 38 U.S.C. 4212 (2001) (amended 2002) and 4212; E.O. 11758 (3 CFR, 1971–1975 Comp., p. 841). Subpart A—Preliminary Matters, Equal Opportunity Clause § 60–250.1 Purpose, applicability and construction. (a) Purpose. The purpose of the regulations in this part is to set forth the standards for compliance with the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or VEVRAA), which requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. (b) Applicability. This part applies to all Government contracts and subcontracts of $25,000 or more, for the purchase, sale or use of personal property or nonpersonal services (including construction): Provided, That subpart C of this part applies only as described in § 60–250.40(a). Compliance PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 72151 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 other 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. § 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) Equal opportunity clause means the contract provisions set forth in § 60– 250.5, ‘‘Equal opportunity clause.’’ (c) Secretary means the Secretary of Labor, United States Department of Labor, or his or her designee. (d) Deputy Assistant Secretary means the Deputy Assistant Secretary for Federal Contract Compliance of the United States Department of Labor, or his or her designee. (e) Government means the Government of the United States of America. (f) United States, as used in this part, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island. (g) Recruiting and training agency means any person who refers workers to any contractor, or who provides or supervises apprenticeship or training for employment by any contractor. (h) Contract means any Government contract or subcontract. E:\FR\FM\01DER2.SGM 01DER2 72152 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations (i) Government contract means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services (including construction). The term ‘‘Government contract’’ does not include agreements in which the parties stand in the relationship of employer and employee, and federally assisted contracts. (1) Modification means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions. (2) Contracting agency means any department, agency, establishment or instrumentality of the United States, including any wholly owned Government corporation, which enters into contracts. (3) Person, as used in this paragraph (i) and paragraph (l) of this section, means any natural person, corporation, partnership or joint venture, unincorporated association, state or local government, and any agency, instrumentality, or subdivision of such a government. (4) Nonpersonal services, as used in this paragraph (i) and paragraph (l) of this section, includes, but is not limited to, the following: Utility, construction, transportation, research, insurance, and fund depository. (5) Construction, as used in this paragraph (i) and paragraph (l) of this section, means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction. (6) Personal property, as used in this paragraph (i) and paragraph (l) of this section, includes supplies and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements). (j) Contractor means, unless otherwise indicated, a prime contractor or subcontractor holding a contract of $25,000 or more. (k) 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. (l) Subcontract means any agreement or arrangement between a contractor VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 and any person (in which the parties do not stand in the relationship of an employer and an employee): (1) For the purchase, sale or use of personal property or nonpersonal services (including construction) which, in whole or in part, is necessary to the performance of any one or more contracts; or (2) Under which any portion of the contractor’s obligation under any one or more contracts is performed, undertaken, or assumed. (m) Subcontractor means any person holding a subcontract of $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. (n)(1) Special disabled veteran means: (i) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability: (A) Rated at 30 percent or more; or (B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or (ii) A person who was discharged or released from active duty because of a service-connected disability. (2) Serious employment handicap, as used in paragraph (n)(1) of this section, means a significant impairment of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes and interests. (o) 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. (p) 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 (ii) Between August 5, 1964, and May 7, 1975, in all other cases. (q) Other protected 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 laws administered by the Department of Defense. (r) 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. (s) 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. (t) Reasonable accommodation—(1) The term reasonable accommodation means: (i) Modifications or adjustments to a job application process that enable a qualified applicant who is a special disabled veteran to be considered for the position such applicant desires;1 1 A contractor’s duty to provide a reasonable accommodation with respect to applicants who are special disabled veterans is not limited to those who ultimately demonstrate that they are qualified E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified special disabled veteran to perform the essential functions of that position; or (iii) Modifications or adjustments that enable the contractor’s employee who is a special disabled veteran to enjoy equal benefits and privileges of employment as are enjoyed by the contractor’s other similarly situated employees who are not special disabled veterans. (2) Reasonable accommodation may include but is not limited to: (i) Making existing facilities used by employees readily accessible to and usable by special disabled veterans; and (ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for special disabled veterans. (3) To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified special disabled veteran in need of the accommodation.2 This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. (Appendix A of this part provides guidance on a contractor’s duty to provide reasonable accommodation.) (u) Undue hardship—(1) In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by the contractor, when considered in light of the factors set forth in paragraph (u)(2) of this section. (2) Factors to be considered. In determining whether an accommodation would impose an undue hardship on the contractor, factors to be considered include: 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). 2 Contractors must engage in such an interactive process with a special disabled veteran, whether or not a reasonable accommodation ultimately is identified that will make the person a qualified individual. Contractors must engage in the interactive process because, until they have done so, they may be unable to determine whether a reasonable accommodation exists that will result in the person being qualified. VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 (i) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding; (ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (iii) The overall financial resources of the contractor, the overall size of the business of the contractor with respect to the number of its employees, and the number, type and location of its facilities; (iv) The type of operation or operations of the contractor, including the composition, structure and functions of the work force of such contractor, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor; and (v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business. (v) Qualification standards means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by the contractor as requirements which an individual must meet in order to be eligible for the position held or desired. (w) Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that a special disabled veteran poses a direct threat shall be based on an individualized assessment of the individual’s present ability to perform safely the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. § 60–250.3 [Reserved] § 60–250.4 Coverage and waivers. (a) General—(1) Contracts and subcontracts of $25,000 or more. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 72153 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 Deputy Assistant Secretary may waive the application to any contract of the equal opportunity clause in whole or part when he or she deems that special circumstances in the national interest so E:\FR\FM\01DER2.SGM 01DER2 72154 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations require. The Deputy Assistant Secretary may also grant such waivers to groups or categories of contracts: Where it is in the national interest; where it is found impracticable to act upon each request individually; and where such waiver will substantially contribute to convenience in administration of the Act. When a waiver has been granted for any class of contracts, the Deputy Assistant Secretary may withdraw the waiver for a specific contract or group of contracts to be awarded, when in his or her judgment such action is necessary or appropriate to achieve the purposes of the Act. The withdrawal shall not apply to contracts awarded prior to the withdrawal, except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of the bids. (2) National security. Any requirement set forth in the regulations of this part shall not apply to any contract whenever the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the contracting agency will notify the Deputy Assistant Secretary in writing within 30 days. (3) Facilities not connected with contracts. The Deputy Assistant Secretary may waive the requirements of the equal opportunity clause with respect to any of a contractor’s facilities which he or she finds to be in all respects separate and distinct from activities of the contractor related to the performance of the contract, provided that he or she also finds that such a waiver will not interfere with or impede the effectuation of the Act. Such waivers shall be considered only upon the request of the contractor. § 60–250.5 Equal opportunity clause. (a) Government contracts. Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract): Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, Recently Separated Veterans, and Other Protected Veterans. 1. The contractor will not discriminate against any employee or applicant for employment because he or she is a special VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 onthe-job training under 38 U.S.C 3687, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training; viii. Activities sponsored by the contractor including social or recreational programs; and ix. Any other term, condition, or privilege of employment. 2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one wherein the contract is being performed, but excluding those of independently operated corporate affiliates, at an appropriate local employment service office of the state employment security agency wherein the opening occurs. Listing employment openings with the U.S. Department of Labor’s America’s Job Bank shall satisfy the requirement to list jobs with the local employment service office. 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 the contractor becomes contractually bound to the listing provisions PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 in paragraphs 2 and 3 of this clause, it shall advise the state employment security agency in each state where it has establishments of the name and location of each hiring location in the state: Provided, That this requirement shall not apply to state and local governmental contractors. As long as the contractor is contractually bound to these provisions and has so advised the state agency, there is no need to advise the state agency of subsequent contracts. The contractor may advise the state agency when it is no longer bound by this contract clause. 5. The provisions of paragraphs 2 and 3 of this clause do not apply to the listing of employment openings which occur and are filled outside of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. 6. As used in this clause: i. All employment openings includes all positions except executive and top management, those positions that will be filled from within the contractor’s organization, and positions lasting three days or less. This term includes full-time employment, temporary employment of more than three days’ duration, and part-time employment. ii. 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 6. ii.; Provided, that (e) of this paragraph 6.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. 7. The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. 8. In the event of the contractor’s noncompliance with the requirements of this E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations clause, actions for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. 9. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Deputy Assistant Secretary for Federal Contract Compliance, provided by or through the contracting officer. Such notices shall state the rights of applicants and employees as well as the contractor’s obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants who are special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans. The contractor must ensure that applicants or employees who are special disabled veterans are informed of the contents of the notice (e.g., the contractor may have the notice read to a visually disabled individual, or may lower the posted notice so that it might be read by a person in a wheelchair). 10. The contractor will notify each labor organization or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the contractor is bound by the terms of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and is committed to take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. 11. 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 the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Deputy Assistant Secretary for Federal Contract Compliance may direct to enforce such provisions, including action for noncompliance. [End of Clause] (b) Subcontracts. Each contractor shall include the equal opportunity clause in each of its subcontracts subject to this part. (c) Adaption of language. Such necessary changes in language may be made to the equal opportunity clause as shall be appropriate to identify properly the parties and their undertakings. (d) Inclusion of the equal opportunity clause in the contract. It is not necessary that the equal opportunity clause be quoted verbatim in the contract. The clause may be made a part of the contract by citation to 41 CFR 60– 250.5(a). (e) Incorporation by operation of the Act. By operation of the Act, the equal opportunity clause shall be considered VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 to be a part of every contract and subcontract required by the Act and the regulations in this part to include such a clause, whether or not it is physically incorporated in such contract and whether or not there is a written contract between the agency and the contractor. (f) Duties of contracting agencies. Each contracting agency shall cooperate with the Deputy Assistant Secretary and the Secretary in the performance of their responsibilities under the Act. Such cooperation shall include insuring that the equal opportunity clause is included in all covered Government contracts and that contractors are fully informed of their obligations under the Act and this part, providing the Deputy Assistant Secretary with any information which comes to the agency’s attention that a contractor is not in compliance with the Act or this part, responding to requests for information from the Deputy Assistant Secretary, and taking such actions for noncompliance as are set forth in § 60–250.66 as may be ordered by the Secretary or the Deputy Assistant Secretary. Subpart B—Discrimination Prohibited § 60–250.20 activities. Covered employment 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. § 60–250.21 Prohibitions. The term ‘‘discrimination’’ includes, but is not limited to, the acts described in this section and § 60–250.23. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 72155 (a) Disparate treatment. It is unlawful for the contractor to deny an employment opportunity or benefit or otherwise to discriminate against a qualified individual because of that individual’s status as a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran. For example, the contractor may not segregate qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 special disabled veteran, veteran of the Vietnam E:\FR\FM\01DER2.SGM 01DER2 72156 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations era, recently separated veteran, or other protected veteran; or (2) Perpetuate the discrimination of others who are subject to common administrative control. (e) Relationship or association with a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 special disabled veteran, Vietnam era veteran, recently separated veteran, or other 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 otherwise qualified applicant or employee who is a special disabled veteran, unless such contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. (2) It is unlawful for the contractor to deny employment opportunities to an otherwise qualified job applicant or employee who is a special disabled veteran based on the need of such contractor to make reasonable accommodation to such an individual’s physical or mental impairments. (3) A qualified special disabled veteran is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified special disabled veteran. (g) Qualification standards, tests and other selection criteria (1) In general. It is unlawful for the contractor to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals on the basis of their status as special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 essential function may not be used to exclude a special disabled veteran if that individual could satisfy the criteria with provision of a reasonable accommodation. Selection criteria that exclude or tend to exclude individuals on the basis of their status as special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 militaryservice-related pension or other disability-related and/or militaryservice-related benefit the applicant or employee receives from another source. § 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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 or desired without posing a direct threat to the health or safety of the individual or others in the workplace. (See § 60– 250.2(w) defining direct threat.) § 60–250.23 inquiries. Medical examinations and (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 preemployment 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 jobrelated 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 jobrelated 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 E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 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 selfidentify as being covered by the Act, as specified in § 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. § 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 VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 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 § 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 safetysensitive positions persons who test positive for illegal use of drugs or onduty 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 §§ 60–250.23(b)(5) and (c). § 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 72157 not subject to state laws that regulate insurance. (d) The contractor may not deny a qualified special disabled veteran equal access to insurance or subject a qualified special disabled veteran to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks. (e) The activities described in paragraphs (a), (b) and (c) of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part. Subpart C—Affirmative Action Program § 60–250.40 Applicability of the affirmative action program requirement. (a) The requirements of this subpart apply to every Government contractor that has 50 or more employees and a contract of $50,000 or more. (b) Contractors described in paragraph (a) of this section shall, within 120 days of the commencement of a contract, prepare and maintain an affirmative action program at each establishment. The affirmative action program shall set forth the contractor’s policies and procedures in accordance with this part. This program may be integrated into or kept separate from other affirmative action programs. (c) The affirmative action program shall be reviewed and updated annually. (d) The contractor shall submit the affirmative action program within 30 days of a request from OFCCP, unless the request provides for a different time. The contractor also shall make the affirmative action program promptly available on-site upon OFCCP’s request. § 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. § 60–250.42 Invitation to self-identify. (a) Special disabled veterans. The contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is a special disabled veteran who may be covered by the Act and wishes to benefit under the affirmative action program. Such invitation shall be extended after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, except that the contractor may invite E:\FR\FM\01DER2.SGM 01DER2 72158 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations special disabled veterans to self-identify prior to making a job offer when: (1) The invitation is made when the contractor actually is undertaking affirmative action for 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) Veterans of the Vietnam era, recently separated veterans and other protected veterans. The contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is a veteran of the Vietnam era, recently separated veteran or other protected veteran who may be covered by the Act and wishes to benefit under the affirmative action program. Such invitation may be made at any time before the applicant begins his or her employment duties. (c) The invitations referenced in paragraphs (a) and (b) of this section shall state that a request to benefit under the affirmative action program may be made immediately and/or at any time in the future. The invitations also shall summarize the relevant portions of the Act and the contractor’s affirmative action program. Furthermore, the invitations shall state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the Act. (An acceptable form for such an invitation is set forth in Appendix B of this part. Because a contractor usually may not seek advice from a special disabled veteran regarding placement and accommodation until after a job offer has been extended, the invitation set forth in Appendix B of this part contains instructions regarding modifications to be made if it is used at the pre-offer stage.) (d) If an applicant so identifies himself or herself as a special disabled veteran, the contractor should also seek the advice of the applicant regarding proper placement and appropriate accommodation, after a job offer has been extended. The contractor also may make such inquiries to the extent they are consistent with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, (e.g., in the context of asking applicants to describe or demonstrate how they would perform the job). The contractor shall maintain a separate file in accordance with § 60– 250.23(d) on persons who have selfidentified as special disabled veterans. (e) The contractor shall keep all information on self identification VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 confidential. The contractor shall provide the information to OFCCP upon request. This information may be used only in accordance with this part. (f) Nothing in this section shall relieve the contractor of its obligation to take affirmative action with respect to those applicants or employees who are known to the contractor to be special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans. (g) Nothing in this section shall relieve the contractor from liability for discrimination under the Act. § 60–250.43 Affirmative action policy. Under the affirmative action obligations imposed by the Act contractors shall not discriminate because of status as a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran and shall take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans at all levels of employment, including the executive level. Such action shall apply to all employment activities set forth in § 60–250.20. § 60–250.44 Required contents of affirmative action programs. Acceptable affirmative action programs shall contain, but not necessarily be limited to, the following ingredients: (a) Policy statement. The contractor shall include an equal opportunity policy statement in its affirmative action program, and shall post the policy statement on company bulletin boards. The contractor must ensure that applicants and employees who are special disabled veterans are informed of the contents of the policy statement (for example, the contractor may have the statement read to a visually disabled individual, or may lower the posted notice so that it may be read by a person in a wheelchair). The policy statement should indicate the chief executive officer’s attitude on the subject matter, provide for an audit and reporting system (see paragraph (h) of this section) and assign overall responsibility for the implementation of affirmative action activities required under this part (see paragraph (i) of this section). Additionally, the policy should state, among other things, that the contractor will: Recruit, hire, train and promote persons in all job titles, and ensure that all other personnel actions are administered, without regard to special disabled veteran, Vietnam era PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 veteran, recently separated veteran, or other 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 the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) or any other Federal, state or local law requiring equal opportunity for special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans; (3) Opposing any act or practice made unlawful by VEVRAA or its implementing regulations in this part or any other Federal, state or local law requiring equal opportunity for special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans; or (4) Exercising any other right protected by VEVRAA or its implementing regulations in this part. (b) Review of personnel processes. The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees who are known special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans in a manner which limits their access to all jobs for which they are qualified. The contractor shall periodically review such processes and make any necessary modifications to ensure that these obligations are carried out. A description of the review and any necessary modifications to personnel processes or development of new E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations processes shall be included in any affirmative action programs required under this part. The contractor must design procedures that facilitate a review of the implementation of this requirement by the contractor and the Government. (Appendix C of this part is an example of an appropriate set of procedures. The procedures in Appendix C of this part are not required and contractors may develop other procedures appropriate to their circumstances.) (c) Physical and mental qualifications. (1) The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the periodic review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified special disabled veterans, they are jobrelated for the position in question and are consistent with business necessity. (2) Whenever the contractor applies physical or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified special disabled veterans, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor shall have the burden to demonstrate that it has complied with the requirements of this paragraph (c)(2). (3) The contractor may use as a defense to an allegation of a violation of paragraph (c)(2) of this section that an individual poses a direct threat to the health or safety of the individual or others in the workplace. (See § 60– 250.2(w) defining direct threat.) (d) Reasonable accommodation to physical and mental limitations. As is provided in § 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 VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation. (e) Harassment. The contractor must develop and implement procedures to ensure that its employees are not harassed because of their status as a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran. (f) External dissemination of policy, outreach and positive recruitment. The contractor shall undertake appropriate outreach and positive recruitment activities such as those listed in paragraphs (f)(1) through (f)(8) of this section that are reasonably designed to effectively recruit qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraphs (f)(1) through (f)(8) of this section or that its activities will be limited to those listed. The scope of the contractor’s efforts shall depend upon all the circumstances, including the contractor’s size and resources and the extent to which existing employment practices are adequate. (1) The contractor should enlist the assistance and support of the following persons and organizations in recruiting, and developing on-the-job training opportunities for, qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans, to fulfill its commitment to provide meaningful employment opportunities to such veterans: (i) The Local Veterans’ Employment Representative or his or her designee in the local employment service office nearest the contractor’s establishment; (ii) The Department of Veterans Affairs Regional Office nearest the contractor’s establishment; (iii) The veterans’ counselors and coordinators (‘‘Vet-Reps’’) on college campuses; (iv) The service officers of the national veterans’ groups active in the area of the contractor’s establishment; and (v) Local veterans’ groups and veterans’ service centers near the contractor’s establishment. (2) Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Plant tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company’s selection process, and PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 72159 recruiting literature should be an integral part of the briefing. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants. (3) The contractor’s recruitment efforts at all educational institutions should incorporate special efforts to reach students who are special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans. An effort should be made to participate in work-study programs with Department of Veterans Affairs rehabilitation facilities which specialize in training or educating disabled veterans. (4) The contractor should establish meaningful contacts with appropriate veterans’ service organizations which serve special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans for such purposes as advice, technical assistance, and referral of potential employees. Technical assistance from the resources described in this paragraph may consist of advice on proper placement, recruitment, training and accommodations contractors may undertake, but no such resource providing technical assistance shall have authority to approve or disapprove the acceptability of affirmative action programs. (5) Special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans should be made available for participation in career days, youth motivation programs, and related activities in their communities. (6) The contractor should send written notification of company policy to all subcontractors, vendors and suppliers, requesting appropriate action on their part. (7) The contractor should take positive steps to attract qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other 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 Vietnam era veterans, veterans with disabilities, recently separated veterans, and other protected veterans. (8) The contractor, in making hiring decisions, should consider applicants who are known special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other protected veterans for all available positions for which they may be E:\FR\FM\01DER2.SGM 01DER2 72160 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations qualified when the position(s) applied for is unavailable. (g) Internal dissemination of policy. (1) A strong outreach program will be ineffective without adequate internal support from supervisory and management personnel and other employees. In order to assure greater employee cooperation and participation in the contractor’s efforts, the contractor shall develop internal procedures such as those listed in paragraph (g)(2) of this section for communication of its obligation to engage in affirmative action efforts to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraph (g)(2) of this section or that its activities will be limited to those listed. These procedures shall be designed to foster understanding, acceptance and support among the contractor’s executive, management, supervisory and other employees and to encourage such persons to take the necessary actions to aid the contractor in meeting this obligation. The scope of the contractor’s efforts shall depend upon all the circumstances, including the contractor’s size and resources and the extent to which existing practices are adequate. (2) The contractor should implement and disseminate this policy internally as follows: (i) Include it in the contractor’s policy manual; (ii) Inform all employees and prospective employees of its commitment to engage in affirmative action to increase employment opportunities for qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. The contractor should periodically schedule special meetings with all employees to discuss policy and explain individual employee responsibilities; (iii) Publicize it in the company newspaper, magazine, annual report and other media; (iv) Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer’s attitude; (v) Discuss the policy thoroughly in both employee orientation and management training programs; (vi) Meet with union officials and/or employee representatives to inform VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 them of the contractor’s policy, and request their cooperation; (vii) Include articles on accomplishments of special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans in company publications; and (viii) When employees are featured in employee handbooks or similar publications for employees, include special disabled veterans. (h) Audit and reporting system. (1) The contractor shall design and implement an audit and reporting system that will: (i) Measure the effectiveness of the contractor’s affirmative action program; (ii) Indicate any need for remedial action; (iii) Determine the degree to which the contractor’s objectives have been attained; (iv) Determine whether known special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans have had the opportunity to participate in all company sponsored educational, training, recreational and social activities; and (v) Measure the contractor’s compliance with the affirmative action program’s specific obligations. (2) Where the affirmative action program is found to be deficient, the contractor shall undertake necessary action to bring the program into compliance. (i) Responsibility for implementation. An official of the contractor shall be assigned responsibility for implementation of the contractor’s affirmative action activities under this part. His or her identity should appear on all internal and external communications regarding the company’s affirmative action program. This official shall be given necessary top management support and staff to manage the implementation of this program. (j) Training. All personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor’s affirmative action program are implemented. Subpart D—General Enforcement and Complaint Procedures § 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 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 without discrimination based on their status as a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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. 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 the Executive Order and regulations; (3) Compliance check. A determination of whether the contractor has maintained records consistent with § 60–250.80; at the contractor’s option E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations the documents may be provided either on-site or off-site; or (4) Focused review. An on-site review restricted to one or more components of the contractor’s organization or one or more aspects of the contractor’s employment practices. (b) Where deficiencies are found to exist, reasonable efforts shall be made to secure compliance through conciliation and persuasion pursuant to § 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. § 60–250.61 Complaint procedures. (a) Place and time of filing. Any applicant for employment with a contractor or any employee of a contractor may, personally, or by an authorized representative, file a written complaint alleging a violation of the Act or the regulations in this part. The complaint may allege individual or class-wide violation(s). Such complaint must be filed within 300 days of the date of the alleged violation, unless the time for filing is extended by OFCCP for good cause shown. Complaints may be submitted to the OFCCP, 200 Constitution Avenue, 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) or his or her designee 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 security agency shall cooperate with the Deputy Assistant Secretary in the investigation of any complaint. (b) Contents of complaints. (1) In general. A complaint must be signed by the complainant or his or her authorized representative and must contain the following information: (i) Name and address (including telephone number) of the complainant; VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 (ii) Name and address of the contractor who committed the alleged violation; (iii) Documentation showing that the individual is a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other 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 Deputy Assistant Secretary decides not to refer the matter to the Solicitor of Labor for enforcement proceedings PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 72161 against the contractor pursuant to § 60– 250.65(a)(1), the complainant and contractor shall be so notified. The Deputy Assistant Secretary, on his or her own initiative, may reconsider his or her determination or the determination of any of his or her designated officers who have authority to issue Notifications of Results of Investigation. (2) The Deputy Assistant Secretary will review all determinations of no violation that involve complaints that are not also cognizable under Title I of the Americans with Disabilities Act. (3) In cases where the Deputy Assistant Secretary decides to reconsider the determination of a Notification of Results of Investigation, the Deputy Assistant Secretary shall provide prompt notification of his or her intent to reconsider, which is effective upon issuance, and his or her final determination after reconsideration, to the person claiming to be aggrieved, the person making the complaint on behalf of such person, if any, and the contractor. (4) If the investigation finds a violation of the Act or this part, OFCCP shall invite the contractor to participate in conciliation discussions pursuant to § 60–250.62. § 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. § 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 E:\FR\FM\01DER2.SGM 01DER2 72162 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 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. § 60–250.64 Show cause notices. When the Deputy Assistant Secretary has reasonable cause to believe that the contractor has violated the Act or this part, he or she may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings or other appropriate action to ensure compliance should not be instituted. The issuance of such a notice is not a prerequisite to instituting enforcement proceedings (see § 60–250.65). § 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 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 VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 Deputy Assistant Secretary may, within the limitations of applicable law, seek appropriate judicial action to enforce the contractual provisions set forth in § 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)); to ‘‘equal opportunity clause’’ shall mean the equal opportunity clause published at § 60–250.5; and to ‘‘regulations’’ shall mean the regulations contained in this part. § 60–250.66 Sanctions and penalties. (a) Withholding progress payments. With the prior approval of the Deputy Assistant Secretary, so much of the accrued payment due on the contract or any other contract between the Government contractor and the Federal Government may be withheld as necessary to correct any violations of the provisions of the Act or this part. (b) Termination. A contract may be canceled or terminated, in whole or in part, for failure to comply with the provisions of the Act or this part. (c) Debarment. A contractor may be debarred from receiving future contracts for failure to comply with the provisions of the Act or this part subject to reinstatement pursuant to § 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. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 (d) Hearing opportunity. An opportunity for a formal hearing shall be afforded to a contractor before the imposition of any sanction or penalty. § 60–250.67 Notification of agencies. The Deputy Assistant Secretary shall ensure that the heads of all agencies are notified of any debarments taken against any contractor. § 60–250.68 Reinstatement of ineligible contractors. (a) Application for reinstatement. A contractor debarred from further contracts for an indefinite period under the Act may request reinstatement in a letter filed with the Deputy Assistant Secretary at any time after the effective date of the debarment; a contractor debarred for a fixed period may make such a request following the expiration of six months from the effective date of the debarment. In connection with the reinstatement proceedings, all debarred contractors shall be required to show that they have established and will carry out employment policies and practices in compliance with the Act and this part. Additionally, in determining whether reinstatement is appropriate for a contractor debarred for a fixed period, the Deputy Assistant Secretary also shall consider, among other factors, the severity of the violation which resulted in the debarment, the contractor’s attitude towards compliance, the contractor’s past compliance history, and whether the contractor’s reinstatement would impede the effective enforcement of the Act or this part. Before reaching a decision, the Deputy Assistant Secretary may conduct a compliance evaluation of the contractor and may require the contractor to supply additional information regarding the request for reinstatement. The Deputy Assistant Secretary shall issue a written decision on the request. (b) Petition for review. Within 30 days of its receipt of a decision denying a request for reinstatement, the contractor may file a petition for review of the decision with the Secretary. The petition shall set forth the grounds for the contractor’s objections to the Deputy Assistant Secretary’s decision. The petition shall be served on the Deputy Assistant Secretary and the Associate Solicitor for Civil Rights and shall include the decision as an appendix. The Deputy Assistant Secretary may file a response within 14 days to the petition. The Secretary shall issue the final agency decision denying or granting the request for reinstatement. Before reaching a final decision, the Secretary may issue such additional E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 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. § 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, or other 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 Deputy Assistant Secretary against any contractor who violates this obligation. § 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 § 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 VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later. Such records include, but are not necessarily limited to, records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of two years from the date of the termination, except that contractors that have fewer than 150 employees or that do not have a Government contract of at least $150,000 shall keep such records for a period of one year from the date of the termination. Where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor shall preserve all personnel records relevant to the complaint, compliance evaluation or action until final disposition of the complaint, compliance evaluation or action. The term personnel records relevant to the complaint, compliance evaluation or action would include, for example, personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person, and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. (b) Failure to preserve records. Failure to preserve complete and accurate records as required by paragraph (a) of this section constitutes noncompliance with the contractor’s obligations under the Act and this part. Where the contractor has destroyed or failed to preserve records as required by this section, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor: Provided, That this presumption shall not apply where the contractor shows that the destruction or failure to preserve records results from circumstances that are outside of the contractor’s control. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 § 60–250.81 72163 Access to records. Each contractor shall permit access during normal business hours to its places of business for the purpose of conducting on-site compliance evaluations and complaint investigations and inspecting and copying such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Act or this part. Information obtained in this manner shall be used only in connection with the administration of the Act and in furtherance of the purposes of the Act. § 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. § 60–250.83 Rulings and interpretations. Rulings under or interpretations of the Act and this part shall be made by the Deputy Assistant Secretary. § 60–250.84 Responsibilities of local employment service offices. (a) Local employment service offices shall refer qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other 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 E:\FR\FM\01DER2.SGM 01DER2 72164 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 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 ‘‘freestanding’’ 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 § 60– 250.1(c). Contractors are obligated to provide reasonable accommodation and to take affirmative action. Reasonable accommodation under VEVRAA, like reasonable accommodation required under section 503 and the ADA, is a part of the nondiscrimination obligation. See EEOC appendix cited in this paragraph. Affirmative action is unique to VEVRAA and section 503, and includes actions above and beyond those required as a matter of nondiscrimination. An example of this is the requirement discussed in paragraph 2 of this appendix that a contractor shall make an inquiry of a special disabled veteran who is having significant difficulty performing his or her job. 1. A contractor is required to make reasonable accommodations to the known physical or mental limitations of an ‘‘otherwise qualified’’ special disabled veteran, unless the contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As stated in § 60–250.2(o), a special disabled veteran is qualified if he or she satisfies all the skill, experience, education and other job-related selection criteria, and can perform the essential functions of the position with or without reasonable accommodation. A contractor is required to make a reasonable accommodation with respect to its application process if the special disabled veteran is qualified with respect to that process. One is ‘‘otherwise qualified’’ if he or she is qualified for a job, except that, because of a disability, he or she needs a reasonable accommodation to be able to perform the job’s essential functions. 2. Although the contractor would not be expected to accommodate disabilities of which it is unaware, the contractor has an affirmative obligation to provide a reasonable accommodation for applicants and employees who are known to be special disabled veterans. As stated in § 60–250.42 (see also Appendix B of this part), the contractor is required to invite applicants who have been provided an offer of VerDate Aug<31>2005 16:52 Nov 30, 2005 Jkt 208001 employment, before they are placed on the contractor’s payroll, to indicate whether they are covered by the Act and wish to benefit under the contractor’s affirmative action program. That section further provides that the contractor should seek the advice of special disabled veterans who ‘‘self-identify’’ in this way as to proper placement and appropriate accommodation. Moreover, § 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 funding, the special disabled veteran should be given the option of providing the accommodation or of paying that portion of the cost which constitutes the undue hardship on the operation of the business. 5. Section 60–250.2(t) lists a number of examples of the most common types of accommodations that the contractor may be required to provide. There are any number of specific accommodations that may be appropriate for particular situations. The discussion in this appendix is not intended to provide an exhaustive list of required accommodations (as no such list would be feasible); rather, it is intended to provide general guidance regarding the nature of the obligation. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor generally should consult with the special disabled veteran in deciding on the appropriate accommodation; frequently, the individual will know exactly what accommodation he or she will need to perform successfully in a particular job, and may suggest an accommodation which is simpler and less expensive than the accommodation the contractor might have devised. Other resources to consult include the appropriate state vocational rehabilitation services agency, the Equal Employment Opportunity Commission (1–800–669–4000 (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-JAN– 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 E:\FR\FM\01DER2.SGM 01DER2 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 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 § 60–250.2(t) is job restructuring. This may involve reallocating or redistributing those nonessential, marginal job functions which a qualified special disabled veteran cannot perform to another position. Accordingly, if a clerical employee who is a special disabled veteran is occasionally required to lift heavy boxes containing files, but cannot do so because of a disability, this task may be reassigned to another employee. The contractor, however, is not required to reallocate essential functions, i.e., those functions that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For instance, the contractor which has a security guard position which requires the incumbent to inspect identity cards would not have to provide a blind special disabled veteran with an assistant to perform that duty; in such a case, the assistant would be performing an essential function of the job for the special disabled veteran. Job restructuring may also involve allowing part-time or modified work schedules. For instance, flexible or adjusted work schedules could benefit special disabled veterans who cannot work a standard schedule because of the need to obtain medical treatment, or special disabled veterans with mobility impairments who depend on a public transportation system that is not accessible during the hours of a standard schedule. 9. Reasonable accommodation may also include reassignment to a vacant position. In general, reassignment should be considered only when accommodation within the special disabled veteran’s current position would pose an undue hardship. Reassignment is not required for applicants. However, in making hiring decisions, contractors are encouraged to consider applicants who are known special disabled veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable. Reassignment may not be used to limit, segregate, or otherwise discriminate against employees who are special disabled veterans by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A ‘‘reasonable amount of time’’ should be determined in light of the totality of the circumstances. 10. The contractor may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. The contractor may maintain the reassigned special disabled veteran at the salary of the higher graded position, and must do so if it maintains the VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 salary of reassigned employees who are not special disabled veterans. It should also be noted that the contractor is not required to promote a special disabled veteran as an accommodation. 11. With respect to the application process, appropriate accommodations may include the following: (1) Providing information regarding job vacancies in a form accessible to special disabled veterans who are vision or hearing impaired, e.g., by making an announcement available in braille, in large print, or on audio tape, or by responding to job inquiries via TDDs; (2) providing readers, interpreters and other similar assistance during the application, testing and interview process; (3) appropriately adjusting or modifying employment-related examinations, e.g., extending regular time deadlines, allowing a special disabled veteran who is blind or has a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her ability, to demonstrate skills through alternative techniques and utilization of adapted tools, aids and devices; and (4) ensuring a special disabled veteran with a mobility impairment full access to testing locations such that the applicant’s test scores accurately reflect the applicant’s skills or aptitude rather than the applicant’s mobility impairment. Appendix B to Part 60–250—Sample Invitation To Self-Identify Note: When the invitation to self-identify is being extended to special disabled veterans prior to an offer of employment, as is permitted in limited circumstances under §§ 60–250.42(a)(1) and (2), paragraph 7(ii) of this appendix, relating to identification of reasonable accommodations, should be omitted. This will avoid a conflict with the EEOC’s ADA Guidance, which in most cases precludes asking a job applicant (prior to a job offer being made) about potential reasonable accommodations. [Sample Invitation to Self-Identify] 1. This employer is a Government contractor subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and other protected veterans. 2. [The following text should be used when extending an invitation to veterans of the Vietnam era, recently separated veterans, and other protected veterans only.] If you are a veteran of the Vietnam era, recently separated veteran, or other protected veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. The term ‘‘veteran of the Vietnam era’’ refers to 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 72165 May 7, 1975 or between August 5, 1964, and May 7, 1975, in all other cases. The term also refers to a person who was discharged or released from active duty for a serviceconnected 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. The term ‘‘recently separated veteran’’ refers to any veteran during the one-year period beginning on the date of such veteran’s discharge or release from active duty. The term ‘‘other protected veteran’’ refers to a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense. [The following text should be used when extending an invitation to special disabled veterans only.] If you are a special disabled veteran, we would like to include you in our affirmative action program. If you would like to be included under the affirmative action program, please tell us. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. The term ‘‘special disabled veteran’’ refers to a veteran who is entitled to compensation (or who, but for the receipt of military retired pay, would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more, or rated at 10 or 20 percent in the case of a veteran who has been determined by the Department of Veterans Affairs to have a serious employment handicap. The term also refers to a person who was discharged or released from active duty because of a service-connected disability. [The following text should be used when extending an invitation to veterans of the Vietnam era, special disabled veterans, recently separated veterans, and other protected veterans. If you are a veteran of the Vietnam era, a special disabled veteran, a recently separated veteran, or other protected veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. [The contractor should include here the definitions of ‘‘veteran of the Vietnam era,’’ ‘‘special disabled veteran,’’ ‘‘recently separated veteran’’ and ‘‘other protected veteran’’ found in the two preceding paragraphs.] 3. You may inform us of your desire to benefit under the program at this time and/ or at any time in the future. 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 E:\FR\FM\01DER2.SGM 01DER2 72166 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations extent appropriate, if you have a condition that might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by OFCCP, or enforcing the Americans with Disabilities Act, may be informed. 6. [The contractor should here insert a brief provision summarizing the relevant portion of its affirmative action program.] 7. [The following text should be used only when extending an invitation to special disabled veterans, either by themselves or in combination with veterans of the Vietnam era, recently separated veterans, and other protected veterans. Paragraph 7(ii) should be omitted when the invitation to self-identify is being extended prior to an offer of employment.] If you are a special disabled veteran it would assist us if you tell us about (i) any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and (ii) the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties relating to the job, provision of personal assistance VerDate Aug<31>2005 15:11 Nov 30, 2005 Jkt 205001 services or other accommodations. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. Appendix C to Part 60–250—Review of Personnel Processes The following is a set of procedures which contractors may use to meet the requirements of § 60–250.44(b): 1. The application or personnel form of each known applicant who is a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran should be annotated to identify each vacancy for which the applicant was considered, and the form should be quickly retrievable for review by the Department of Labor and the contractor’s personnel officials for use in investigations and internal compliance activities. 2. The personnel or application records of each known special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran should include (i) the identification of each promotion for which the covered veteran was considered, and (ii) the identification of each training program for which the covered veteran was considered. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 3. In each case where an employee or applicant who is a special disabled veteran, veteran of the Vietnam era, recently separated veteran, or other protected veteran is rejected for employment, promotion, or training, the contractor should prepare a statement of the reason as well as a description of the accommodations considered (for a rejected special disabled veteran). The statement of the reason for rejection (if the reason is medically related), and the description of the accommodations considered, should be treated as confidential medical records in accordance with § 60– 250.23(d). These materials should be available to the applicant or employee concerned upon request. 4. Where applicants or employees are selected for hire, promotion, or training and the contractor undertakes any accommodation which makes it possible for him or her to place a special disabled veteran on the job, the contractor should make a record containing a description of the accommodation. The record should be treated as a confidential medical record in accordance with § 60–250.23(d). [FR Doc. 05–23403 Filed 11–30–05; 8:45 am] BILLING CODE 4510–CM–P E:\FR\FM\01DER2.SGM 01DER2

Agencies

[Federal Register Volume 70, Number 230 (Thursday, December 1, 2005)]
[Rules and Regulations]
[Pages 72148-72166]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23403]



[[Page 72147]]

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Part II





Department of Labor





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Office of Federal Contract Compliance Programs



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41 CFR 60-250



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

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / 
Rules and Regulations

[[Page 72148]]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-250

RIN 1215-AB24


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

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations implementing the 
affirmative action provisions of the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended, 38 U.S.C. 4212 (2001) (``Section 
4212'' or ``VEVRAA''). This rule makes three general revisions to the 
VEVRAA regulations. First, it generally conforms the VEVRAA regulations 
to the Veterans Employment Opportunities Act of 1998 (VEOA) and the 
Veterans Benefits and Health Care Improvement Act of 2000 (VBHCIA). 
Second, it removes references to letters of commitment because the 
violations formerly incorporated into the letter of commitment are now 
summarized in the Compliance Evaluation Closure Letter. Third, it 
removes language about the effective date of the rule published in 1998 
because that language is obsolete.

EFFECTIVE DATE: These regulations are effective January 3, 2006.

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

SUPPLEMENTARY INFORMATION:

Background

    Prior to recent amendments, the affirmative action provisions of 
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as 
amended, 38 U.S.C. 4212 (``Section 4212'' or ``VEVRAA'') required 
parties holding Government contracts or subcontracts of $10,000 or more 
to ``take affirmative action to employ and advance in employment 
qualified special disabled veterans and veterans of the Vietnam era.'' 
The Department of Labor's Office of Federal Contract Compliance 
Programs (OFCCP) has published regulations implementing VEVRAA at 41 
CFR part 60-250.
    This final rule revises the OFCCP regulations to conform to the 
requirements of the Veterans Employment Opportunities Act of 1998 
(VEOA) and the Veterans Benefits and Health Care Improvement Act of 
2000 (VBHCIA). Today's rule does not incorporate changes made to VEVRAA 
by the Jobs for Veterans Act (JVA) that was signed by the President on 
November 7, 2002. JVA amended the VEVRAA requirements applicable to 
Federal contracts and subcontracts entered on or after December 1, 
2003, by raising the contract amount threshold for VEVRAA coverage, 
modifying the categories of protected veterans, and making changes to 
job listing requirements. At a later date, OFCCP will issue regulations 
implementing the JVA changes that will apply to contracts entered on or 
after December 1, 2003.
    Except as set forth below, the contents of part 60-250 remain 
unchanged from the rule being amended. VEOA amended section 4212(a) in 
two ways. First, section 7 of VEOA raised the amount of a contract 
required to establish VEVRAA coverage from $10,000 to $25,000. Second, 
section 7 of VEOA granted VEVRAA protection to a new group of veterans, 
called ``other protected veterans''--those who have served on active 
duty during a war or in a campaign or expedition for which a campaign 
badge has been authorized.
    VBHCIA amended VEVRAA by creating a new class of protected veteran, 
called ``recently separated veteran.'' Recently separated veteran is 
defined in VEVRAA as ``any veteran during the one-year period beginning 
on the date of such veteran's discharge or release from active duty.'' 
However, the term ``recently separated veteran'' is also defined in the 
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.) (WIA) as 
``any veteran who applies for participation under this chapter within 
48 months after the discharge or release from active military, naval, 
or air service.'' The WIA is administered by the Department of Labor's 
Employment and Training Administration (ETA), which has issued 
regulations implementing the WIA at 20 CFR part 660-671. Although ETA 
does not refer to ``recently separated veteran'' in its regulations, 
ETA uses the WIA definition of ``recently separated veteran.'' To 
eliminate confusion, ``recently separated veteran'' means, for the 
purposes of this rule, any veteran during the one-year period beginning 
on the date of such veteran's discharge or release from active duty.
    Today's rule does not carry forward several outdated provisions of 
the rule being amended relating to the implementation of that rule 
after it was published: (1) The effective date of that rule; (2) a 
statement that the rule did not apply retroactively; and (3) a 
statement that contractors needed to update their AAPs within 120 days 
of the rule's effective date (January 4, 1999).
    Information about the implementation of today's rule is contained 
in the preamble, rather than in the rule. Today's rule will become 
effective 30 days after publication and will apply prospectively. 
Contractors are required to update their affirmative action programs 
(AAP) to reflect the requirements of today's rule during their standard 
12-month AAP review and updating cycle. A contractor that has prepared 
an AAP under the old regulations may maintain that AAP for the duration 
of the AAP year even if that AAP year overlaps with the effective date 
of the new regulations.
    The rule being amended references letters of commitment. OFCCP 
discontinued the use of the letter of commitment, which was used to 
resolve minor technical deficiencies, in 1998. OFCCP replaced the 
letter of commitment with the compliance evaluation closure letter, 
which is used by OFCCP to close a review where minor or no violations 
are found. Consequently, references to letters of commitment have been 
removed from Sec. Sec.  60-250.62 and 60-250.63.
    We discuss specific changes in the Section-by-Section Analysis 
below.

Section-by-Section Analysis

    The following analysis focuses on a comparison of today's rule with 
the rule being amended found at 41 CFR part 60-250. The analysis 
discusses VEOA and VBHCIA where necessary to place today's rule in 
context. Sections with no changes are not discussed.

Part 60-250

    OFCCP is amending the Part heading by adding ``Recently Separated 
Veterans'' and ``Other Protected Veterans'' to include veterans 
protected under VEOA and VBHCIA. In the table of contents, the heading 
for Sec. Sec.  250.62 and 250.63 are updated to correspond to the 
headings in the regulatory text and the table of contents reference for 
Sec.  250.85 is deleted (see discussion of those sections below).
    OFCCP is amending the United States Code authority citation to 
denote that the VEVRAA statutory authority being referenced is a pre-
JVA amendment. As discussed above, JVA amendments to VEVRAA apply only 
to contracts entered on or after December 1, 2003. Because this 
regulation draws its authority from the VEVRAA as enacted

[[Page 72149]]

before its amendment by the JVA, the date in the citation has been 
added.

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-250.1 Purpose, Applicability and Construction

    This section amends paragraphs (a) and (c)(2) by adding ``recently 
separated veterans'' and ``other protected veterans'' to include 
veterans protected under VEOA and VBHCIA. Additionally, paragraph (b) 
is amended to state that a Government contract or subcontract of at 
least $25,000 is covered by the Act.

Section 60-250.2 Definitions

    This section amends paragraphs (j), (k), and (m) (the definitions 
for the terms ``contractor,'' ``prime contractor,'' and 
``subcontractor,'' respectively) to increase the coverage threshold 
amount from $10,000 to $25,000 to conform to the requirements of the 
VEOA. Paragraph (q) adds the definition of ``other protected veteran,'' 
the new class of veterans protected by VEOA. Paragraph (r) adds the 
definition of ``recently separated veteran,'' the new class of veterans 
protected under VBHCIA. With the addition of paragraphs (q) and (r), we 
redesignate paragraphs (q) through (u) as paragraphs (s) through (w), 
respectively.

Section 60-250.4 Coverage and Waivers

    This section amends paragraphs (a)(1) and (a)(2) to increase the 
contract or subcontract threshold amount from $10,000 to $25,000 to 
conform to the requirements of the VEOA.

Section 60-250.5 Equal Opportunity Clause

    This section adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to paragraphs (a), (a)(1), (a)(9), and (a)(10) 
to include veterans protected under VEOA and VBHCIA. Paragraph (a)(11) 
raises the subcontract or purchase order threshold amount from $10,000 
to $25,000 to conform to the requirements of the VEOA.

Subpart B--Discrimination Prohibited

Section 60-250.21 Prohibitions

    This section adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to paragraphs (a), (b), (c), (d)(1), (e), 
(g)(1), and (i) to include veterans protected under VEOA and VBHCIA.

Section 60-250.22 Direct Threat Defense

    This section replaces the reference to Sec.  60-250.2(u) with Sec.  
60-250.2(w) to conform to the redesignating in Sec.  60-250.2.

Subpart C--Affirmative Action Program

Section 60-250.42 Invitation To Self-Identify

    This section adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to paragraphs (b) and (f) to include veterans 
protected under VEOA and VBHCIA.

Section 60-250.43 Affirmative Action Policy

    This section adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to include veterans protected under VEOA and 
VBHCIA.

Section 60-250.44 Required Contents of Affirmative Action Programs

    This section adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to paragraphs (a), (a)(2), (a)(3), (b), (e), 
(f), (f)(1), (f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g)(1), 
(g)(2)(ii), (g)(2)(vii), and (h)(1)(iv) to include veterans protected 
under VEOA and VBHCIA.

Subpart D--General Enforcement and Complaint Procedures

Section 60-250.60 Compliance Evaluations

    This section adds ``recently separated veteran'' and ``other 
protected veteran'' to paragraph (a) to include veterans protected 
under VEOA and VBHCIA.
    The Office of the Assistant Secretary for Veterans' Employment and 
Training (OASVET) has been renamed the Veterans' Employment and 
Training Service (VETS). The rule is updated with the agency's current 
name.

Section 60-250.61 Complaint Procedures

    This section adds ``recently separated veteran'' and ``other 
protected veteran'' to paragraph (b)(iii) to include veterans protected 
under VEOA and VBHCIA.

Section 60-250.62 Conciliation Agreements

    This section deletes paragraph (b), which referred to letters of 
commitment. In 1998 OFCCP discontinued the use of the letter of 
commitment, which was used to resolve minor technical deficiencies. 
Discontinuing the use of the Letter of Commitment, OFCCP Order Number 
ADM Notice/Other, Transmittal Number 226 (August 5, 1998). The letter 
of commitment was replaced with the compliance evaluation closure 
letter, which is used by OFCCP to close a compliance evaluation when 
minor or no violations are found. Consequently, the reference in Sec.  
60-250.62(b) to the letter of commitment is no longer necessary. The 
heading for Sec.  250.62 also deletes the reference to the letter of 
commitment.

Section 60-250.63 Violation of Conciliation Agreements

    We have deleted paragraph (d) because it references the letter of 
commitment. As discussed above, OFCCP no longer uses the letter of 
commitment. Additionally, the heading to Sec.  250.63 deletes the 
reference to the letter of commitment.

Section 60-250.65 Enforcement Proceedings

    This rule adds a citation to the pre-JVA amendment to VEVRAA in 
paragraph 60-250.65(b)(3). Paragraph (b)(3) states that references in 
41 CFR part 60-30 to Executive Order 11246 shall mean the ``Vietnam Era 
Veterans' Readjustment Assistance Act, as amended,'' for purposes of 
hearings held pursuant to part 60-250. This citation is added because 
the ``Vietnam Era Veterans' Readjustment Assistance Act, as amended,'' 
references all amendments to VEVRAA, including amendments by JVA. As 
stated above, this rule does not incorporate amendments to VEVRAA made 
by JVA. Accordingly, a U.S.C. citation, 38 U.S.C. 4212 (2001), is added 
to clarify that the reference is to the pre-JVA amendment to VEVRAA.

Section 60-250.69 Intimidation and Interference

    This section adds ``recently separated veterans'' and ``other 
protected veterans'' to paragraphs (a)(2) and (a)(3) to include 
veterans protected under VEOA and VBHCIA.

Subpart E--Ancillary Matters

Section 60-250.80 Recordkeeping

    This rule removes paragraph (c) from Sec.  60-250.80. Paragraph (c) 
states that the recordkeeping requirements of Sec.  60-250.80 apply 
only to records made or kept on or after the date that the Office of 
Management and Budget has cleared the requirements. This paragraph's 
discussion of the effective date for this section is unnecessary 
because the date referenced the new recordkeeping requirement contained 
in the rule published in 1998.

[[Page 72150]]

Section 60-250.84 Responsibilities of Local Employment Service Offices

    This section adds ``recently separated veterans'' and ``other 
protected veterans'' to paragraph (a) to include veterans protected 
under VEOA and VBHCIA.

Section 60-250.85 Effective Date

    This rule removes Sec.  60-250.85. This section's discussion of 
effective dates for the rule being amended is unnecessary, as OFCCP no 
longer includes effective dates in the regulations.

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

    This appendix amends paragraphs 5 and 8 to replace the reference to 
Sec.  60-250.2(r) with Sec.  60-250.2(t) to conform to the 
redesignating in Sec.  60-250.2. We also update the phone numbers for 
the EEOC and add a second toll free number for the Job Accommodation 
Network (JAN) in paragraph 6. Lastly, we update this appendix with the 
information that JAN is now operated by the Office of Disability 
Employment Policy, in the Department of Labor.

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

    Appendix B adds ``recently separated veteran(s)'' and ``other 
protected veteran(s)'' to paragraphs 1, 2, and 7 to include veterans 
protected under VEOA and VBHCIA. In addition, in paragraph 2 we place 
the definitions of ``recently separated veteran'' and ``other protected 
veteran'' after the definition of veteran of the Vietnam era.

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

    Appendix C adds ``recently separated veteran'' and ``other 
protected veteran'' to paragraphs 1, 2, and 3 to include veterans 
protected under VEOA and VBHCIA.

Regulatory Procedures

Publication in Final

    The Department of Labor has determined that this rulemaking need 
not be published as a proposed rule, as generally required by the 
Administrative Procedure Act, 5 U.S.C. 553. The three substantive 
revisions in the rule are nondiscretionary ministerial actions that 
merely incorporate, without change, statutory amendments into 
preexisting regulations:
    (1) The increase in the contract threshold amount from $10,000 to 
$25,000;
    (2) The addition of the group of veterans protected under VEOA; and
    (3) The addition of the group of veterans protected under VBHCIA. 
Because these changes are required by statute, there is good cause for 
OFCCP to find that the notice and public comment procedure is 
unnecessary pursuant to the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B).
    This rule removes five outdated regulatory references. First, the 
Department is amending its statutory authority citation to reference 
VEVRAA as it stood before amendment by JVA, because this regulation 
will not apply to contracts and subcontracts covered by VEVRAA as 
amended by JVA. Second, the Department is deleting paragraph (c) in 
Sec.  60-250.80. This paragraph's discussion of the effective date of 
the recordkeeping requirements of Sec.  60-250 is unnecessary because 
the date in the regulation referenced new recordkeeping requirements 
contained in the rule published in 1998. Third, the Department is 
deleting Sec.  60-250.85. This section's discussion of effective dates 
for the rule being amended is unnecessary because the dates referenced 
in this section applied to the rule published in 1998. Additionally, 
information on effective dates in DOL regulations is now contained in a 
rule's preamble. Fourth, the Department has replaced reference to the 
``President's Committee on Employment of People with Disabilities'' 
with ``Office of Disability Employment Policy, Labor'' to account for 
the transition of duties between the two groups. These changes are 
merely housekeeping amendments that will not have an effect on 
regulated entities. Consequently, there is good cause for OFCCP to find 
that the notice and public comment procedure is unnecessary pursuant to 
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B).
    Finally, this rule removes reference to the letter of commitment. 
OFCCP discontinued the use of the letter of commitment in 1998. In the 
past, a letter of commitment was used to resolve minor technical 
deficiencies identified by OFCCP during a compliance review of a 
Federal contractor or subcontractor. Because this is a change of agency 
procedure or practice, notice and public comment are not required under 
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A).

Executive Order 12866

    The Department is issuing this rule in conformance with Executive 
Order 12866. This rule is not significant for purposes of Executive 
Order 12866 and therefore need not be reviewed by the Office of 
Management and Budget.
    The Department bases its conclusion on the fact that this final 
rule does not substantively change the existing obligation of Federal 
contractors to apply a policy of nondiscrimination and affirmative 
action in their employment of protected veterans. For example, although 
the categories of protected veterans are expanded pursuant to statutory 
changes, the substance of the nondiscrimination and affirmative action 
obligations to be afforded protected veterans remains the same.

Executive Order 13132

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

Regulatory Flexibility Act

    The rule clarifies existing requirements for Federal contractors. 
In view of this fact and because the rule does not substantively change 
existing obligations for Federal contractors, we certify that the rule 
will not have a significant economic impact on a substantial number of 
small business entities. Therefore, a regulatory flexibility analysis 
under the Regulatory Flexibility Act is not required.

Unfunded Mandates Reform

    Executive Order 12875--This rule does not create an unfunded 
Federal mandate upon any State, local, or tribal government.
    Unfunded Mandates Reform Act of 1995--This does not include any 
Federal mandate that may result in increased expenditures by State, 
local, and tribal governments, in the aggregate, of $100 million or 
more, or increased expenditures by the private sector of $100 million 
or more.

Paperwork Reduction Act

    The information collection requirements contained in the existing 
VEVRAA regulations, with the exception of those related to complaint 
procedures, are currently approved under OMB Control No. 1215-0072 
(Recordkeeping and Reporting Requirements-Supply and Service) and OMB 
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The 
information collection requirements contained in the existing complaint 
procedures regulation are currently approved under OMB Control

[[Page 72151]]

No. 1215-0131. This final rule amends the regulations implementing 
VEVRAA to incorporate the changes to the contract coverage threshold 
and the categories of covered veterans made by VEOA and VBHCIA. The 
increase in the contract coverage threshold from $10,000 to $25,000 may 
result in a decrease in the number of respondents and burden hours. 
However, this final rule does not make any changes to the currently 
approved information collections. Consequently, this final rule need 
not be reviewed by the Office of Management and Budget under the 
authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq.

List of Subjects in 41 CFR Part 60-250

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

    Signed at Washington, DC, this 22nd day of November, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.

Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.

0
Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of 
Federal Regulations, Chapter 60, Part 60-250, is revised to read as 
follows:

PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED 
VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS, 
AND OTHER PROTECTED 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.

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

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

Subpart A--Preliminary Matters, Equal Opportunity Clause


Sec.  60-250.1  Purpose, applicability and construction.

    (a) Purpose. The purpose of the regulations in this part is to set 
forth the standards for compliance with the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or 
VEVRAA), which requires Government contractors and subcontractors to 
take affirmative action to employ and advance in employment qualified 
special disabled veterans, veterans of the Vietnam era, recently 
separated veterans, and other protected veterans.
    (b) Applicability. This part applies to all Government contracts 
and subcontracts of $25,000 or more, for the purchase, sale or use of 
personal property or nonpersonal services (including construction): 
Provided, That subpart C of this part applies only as described in 
Sec.  60-250.40(a). Compliance by the contractor with the provisions of 
this part will not necessarily determine its compliance with other 
statutes, and compliance with other statutes will not necessarily 
determine its compliance with this part.
    (c) Construction--(1) In general. The Interpretive Guidance on 
Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101, 
et seq.) set out as an appendix to 29 CFR part 1630 issued pursuant to 
Title I may be relied upon for guidance in interpreting the parallel 
provisions of this part.
    (2) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any state or political subdivision that provides greater or 
equal protection for the rights of special disabled veterans, veterans 
of the Vietnam era, recently separated veterans, or other 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.  60-250.2  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) Equal opportunity clause means the contract provisions set 
forth in Sec.  60-250.5, ``Equal opportunity clause.''
    (c) Secretary means the Secretary of Labor, United States 
Department of Labor, or his or her designee.
    (d) Deputy Assistant Secretary means the Deputy Assistant Secretary 
for Federal Contract Compliance of the United States Department of 
Labor, or his or her designee.
    (e) Government means the Government of the United States of 
America.
    (f) United States, as used in this part, shall include the several 
States, the District of Columbia, the Virgin Islands, the Commonwealth 
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and Wake Island.
    (g) Recruiting and training agency means any person who refers 
workers to any contractor, or who provides or supervises apprenticeship 
or training for employment by any contractor.
    (h) Contract means any Government contract or subcontract.

[[Page 72152]]

    (i) Government contract means any agreement or modification thereof 
between any contracting agency and any person for the purchase, sale or 
use of personal property or nonpersonal services (including 
construction). The term ``Government contract'' does not include 
agreements in which the parties stand in the relationship of employer 
and employee, and federally assisted contracts.
    (1) Modification means any alteration in the terms and conditions 
of a contract, including supplemental agreements, amendments and 
extensions.
    (2) Contracting agency means any department, agency, establishment 
or instrumentality of the United States, including any wholly owned 
Government corporation, which enters into contracts.
    (3) Person, as used in this paragraph (i) and paragraph (l) of this 
section, means any natural person, corporation, partnership or joint 
venture, unincorporated association, state or local government, and any 
agency, instrumentality, or subdivision of such a government.
    (4) Nonpersonal services, as used in this paragraph (i) and 
paragraph (l) of this section, includes, but is not limited to, the 
following: Utility, construction, transportation, research, insurance, 
and fund depository.
    (5) Construction, as used in this paragraph (i) and paragraph (l) 
of this section, means the construction, rehabilitation, alteration, 
conversion, extension, demolition, or repair of buildings, highways, or 
other changes or improvements to real property, including facilities 
providing utility services. The term also includes the supervision, 
inspection, and other on-site functions incidental to the actual 
construction.
    (6) Personal property, as used in this paragraph (i) and paragraph 
(l) of this section, includes supplies and contracts for the use of 
real property (such as lease arrangements), unless the contract for the 
use of real property itself constitutes real property (such as 
easements).
    (j) Contractor means, unless otherwise indicated, a prime 
contractor or subcontractor holding a contract of $25,000 or more.
    (k) 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.
    (l) Subcontract means any agreement or arrangement between a 
contractor and any person (in which the parties do not stand in the 
relationship of an employer and an employee):
    (1) For the purchase, sale or use of personal property or 
nonpersonal services (including construction) which, in whole or in 
part, is necessary to the performance of any one or more contracts; or
    (2) Under which any portion of the contractor's obligation under 
any one or more contracts is performed, undertaken, or assumed.
    (m) Subcontractor means any person holding a subcontract of $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.
    (n)(1) Special disabled veteran means:
    (i) A veteran who is entitled to compensation (or who but for the 
receipt of military retired pay would be entitled to compensation) 
under laws administered by the Department of Veterans Affairs for a 
disability:
    (A) Rated at 30 percent or more; or
    (B) Rated at 10 or 20 percent in the case of a veteran who has been 
determined under 38 U.S.C. 3106 to have a serious employment handicap; 
or
    (ii) A person who was discharged or released from active duty 
because of a service-connected disability.
    (2) Serious employment handicap, as used in paragraph (n)(1) of 
this section, means a significant impairment of a veteran's ability to 
prepare for, obtain, or retain employment consistent with such 
veteran's abilities, aptitudes and interests.
    (o) 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.
    (p) 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.
    (q) Other protected 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 laws administered by the Department of 
Defense.
    (r) 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.
    (s) 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.
    (t) Reasonable accommodation--(1) The term reasonable accommodation 
means:
    (i) Modifications or adjustments to a job application process that 
enable a qualified applicant who is a special disabled veteran to be 
considered for the position such applicant desires;\1\
---------------------------------------------------------------------------

    \1\ A contractor's duty to provide a reasonable accommodation 
with respect to applicants who are special disabled veterans is not 
limited to those who ultimately demonstrate that they are qualified 
to perform the job in issue. Special disabled veteran applicants 
must be provided a reasonable accommodation with respect to the 
application process if they are qualified with respect to that 
process (e.g., if they present themselves at the correct location 
and time to fill out an application).

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

[[Page 72153]]

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

    \2\ Contractors must engage in such an interactive process with 
a special disabled veteran, whether or not a reasonable 
accommodation ultimately is identified that will make the person a 
qualified individual. Contractors must engage in the interactive 
process because, until they have done so, they may be unable to 
determine whether a reasonable accommodation exists that will result 
in the person being qualified.
---------------------------------------------------------------------------

    (u) Undue hardship--(1) In general. Undue hardship means, with 
respect to the provision of an accommodation, significant difficulty or 
expense incurred by the contractor, when considered in light of the 
factors set forth in paragraph (u)(2) of this section.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on the contractor, factors 
to be considered include:
    (i) The nature and net cost of the accommodation needed, taking 
into consideration the availability of tax credits and deductions, and/
or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number 
of persons employed at such facility, and the effect on expenses and 
resources;
    (iii) The overall financial resources of the contractor, the 
overall size of the business of the contractor with respect to the 
number of its employees, and the number, type and location of its 
facilities;
    (iv) The type of operation or operations of the contractor, 
including the composition, structure and functions of the work force of 
such contractor, and the geographic separateness and administrative or 
fiscal relationship of the facility or facilities in question to the 
contractor; and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other employees to 
perform their duties and the impact on the facility's ability to 
conduct business.
    (v) Qualification standards means the personal and professional 
attributes including the skill, experience, education, physical, 
medical, safety and other requirements established by the contractor as 
requirements which an individual must meet in order to be eligible for 
the position held or desired.
    (w) Direct threat means a significant risk of substantial harm to 
the health or safety of the individual or others that cannot be 
eliminated or reduced by reasonable accommodation. The determination 
that a special disabled veteran poses a direct threat shall be based on 
an individualized assessment of the individual's present ability to 
perform safely the essential functions of the job. This assessment 
shall be based on a reasonable medical judgment that relies on the most 
current medical knowledge and/or on the best available objective 
evidence. In determining whether an individual would pose a direct 
threat, the factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.


Sec.  60-250.3  [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 
Deputy Assistant Secretary may waive the application to any contract of 
the equal opportunity clause in whole or part when he or she deems that 
special circumstances in the national interest so

[[Page 72154]]

require. The Deputy Assistant Secretary may also grant such waivers to 
groups or categories of contracts: Where it is in the national 
interest; where it is found impracticable to act upon each request 
individually; and where such waiver will substantially contribute to 
convenience in administration of the Act. When a waiver has been 
granted for any class of contracts, the Deputy Assistant Secretary may 
withdraw the waiver for a specific contract or group of contracts to be 
awarded, when in his or her judgment such action is necessary or 
appropriate to achieve the purposes of the Act. The withdrawal shall 
not apply to contracts awarded prior to the withdrawal, except that in 
procurements entered into by formal advertising, or the various forms 
of restricted formal advertising, such withdrawal shall not apply 
unless the withdrawal is made more than 10 calendar days before the 
date set for the opening of the bids.
    (2) National security. Any requirement set forth in the regulations 
of this part shall not apply to any contract whenever the head of the 
contracting agency determines that such contract is essential to the 
national security and that its award without complying with such 
requirements is necessary to the national security. Upon making such a 
determination, the head of the contracting agency will notify the 
Deputy Assistant Secretary in writing within 30 days.
    (3) Facilities not connected with contracts. The Deputy Assistant 
Secretary may waive the requirements of the equal opportunity clause 
with respect to any of a contractor's facilities which he or she finds 
to be in all respects separate and distinct from activities of the 
contractor related to the performance of the contract, provided that he 
or she also finds that such a waiver will not interfere with or impede 
the effectuation of the Act. Such waivers shall be considered only upon 
the request of the contractor.


Sec.  60-250.5  Equal opportunity clause.

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

    Equal Opportunity for Special Disabled Veterans, Veterans of the 
Vietnam Era, Recently Separated Veterans, and Other Protected 
Veterans.
    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 
other protected veteran in regard to any position for which the 
employee or applicant for employment is qualified. The contractor 
agrees to take affirmative action to employ, advance in employment 
and otherwise treat qualified individuals without discrimination 
based on their status as a special disabled veteran, veteran of the 
Vietnam era, recently separated veteran, or other 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; and
    ix. Any other term, condition, or privilege of employment.
    2. The contractor agrees to immediately list all employment 
openings which exist at the time of the execution of this contract 
and those which occur during the performance of this contract, 
including those not generated by this contract and including those 
occurring at an establishment of the contractor other than the one 
wherein the contract is being performed, but excluding those of 
independently operated corporate affiliates, at an appropriate local 
employment service office of the state employment security agency 
wherein the opening occurs. Listing employment openings with the 
U.S. Department of Labor's America's Job Bank shall satisfy the 
requirement to list jobs with the local employment service office.
    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 the contractor becomes contractually bound to the 
listing provisions in paragraphs 2 and 3 of this clause, it shall 
advise the state employment security agency in each state where it 
has establishments of the name and location of each hiring location 
in the state: Provided, That this requirement shall not apply to 
state and local governmental contractors. As long as the contractor 
is contractually bound to these provisions and has so advised the 
state agency, there is no need to advise the state agency of 
subsequent contracts. The contractor may advise the state agency 
when it is no longer bound by this contract clause.
    5. The provisions of paragraphs 2 and 3 of this clause do not 
apply to the listing of employment openings which occur and are 
filled outside of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
    6. As used in this clause: i. All employment openings includes 
all positions except executive and top management, those positions 
that will be filled from within the contractor's organization, and 
positions lasting three days or less. This term includes full-time 
employment, temporary employment of more than three days' duration, 
and part-time employment.
    ii. 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 6. ii.; Provided, 
that (e) of this paragraph 6.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.
    7. The contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor issued pursuant to the 
Act.
    8. In the event of the contractor's noncompliance with the 
requirements of this

[[Page 72155]]

clause, actions for noncompliance may be taken in accordance with 
the rules, regulations, and relevant orders of the Secretary of 
Labor issued pursuant to the Act.
    9. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices in a 
form to be prescribed by the Deputy Assistant Secretary for Federal 
Contract Compliance, provided by or through the contracting officer. 
Such notices shall state the rights of applicants and employees as 
well as the contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
employees and applicants who are special disabled veterans, veterans 
of the Vietnam era, recently separated veterans, or other protected 
veterans. The contractor must ensure that applicants or employees 
who are special disabled veterans are informed of the contents of 
the notice (e.g., the contractor may have the notice read to a 
visually disabled individual, or may lower the posted notice so that 
it might be read by a person in a wheelchair).
    10. The contractor will notify each labor organization or 
representative of workers with which it has a collective bargaining 
agreement or other contract understanding, that the contractor is 
bound by the terms of the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended, and is committed to take 
affirmative action to employ and advance in employment qualified 
special disabled veterans, veterans of the Vietnam era, recently 
separated veterans, and other protected veterans.
    11. 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 the Vietnam Era Veterans' Readjustment Assistance 
Act of 1974, as amended, so that such provisions will be binding 
upon each subcontractor or vendor. The contractor will take such 
action with respect to any subcontract or purchase order as the 
Deputy Assistant Secretary for Federal Contract Compliance may 
direct to enforce such provisions, including action for 
noncompliance.

[End of Clause]

    (b) Subcontracts. Each contractor shall include the equal 
opportunity clause in each of its subcontracts subject to this part.
    (c) Adaption of language. Such necessary changes in language may be 
made to the equal opportunity clause as shall be appropriate to 
identify properly the parties and their undertakings.
    (d) Inclusion of the equal opportunity clause in the contract. It 
is not necessary that the equal opportunity clause be quoted verbatim 
in the contract. The clause may be made a part of the contract by 
citation to 41 CFR 60-250.5(a).
    (e) Incorporation by operation of the Act. By operation of the Act, 
the equal opportunity clause shall be considered to be a part of every 
contract and subcontract required by the Act and the regulations in 
this part to include such a clause, whether or not it is physically 
incorporated in such contract and whether or not there is a written 
contract between the agency and the contractor.
    (f) Duties of contracting agencies. Each contracting agency shall 
cooperate with the Deputy Assistant Secretary and the Secretary in the 
performance of their responsibilities under the Act. Such cooperation 
shall include insuring that the equal opportunity clause is included in 
all covered Government contracts and that contractors are fully 
informed of their obligations under the Act and this part, providing 
the Deputy Assistant Secretary with any information which comes to the 
agency's attention that a contractor is not in compliance with the Act 
or this part, responding to requests for information from the Deputy 
Assistant Secretary, and taking such actions for noncompliance as are 
set forth in Sec.  60-250.66 as may be ordered by the Secretary or the 
Deputy Assistant Secretary.

Subpart B--Discrimination Prohibited


Sec.  60-250.20  Covered employment activities.

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


Sec.  60-250.21  Prohibitions.

    The term ``discrimination'' includes, but is not limited to, the 
acts described in this section and Sec.  60-250.23.
    (a) Disparate treatment. It is unlawful for the contractor to deny 
an employment opportunity or benefit or otherwise to discriminate 
against a qualified individual because of that individual's status as a 
special disabled veteran, veteran of the Vietnam era, recently 
separated veteran, or other 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 special disabled veteran, 
veteran of the Vietnam era, recently separated veteran, or other 
protected veteran. For example, the contractor may not segregate 
qualified special disabled veterans, veterans of the Vietnam era, 
recently separated veterans, or other 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 special 
disabled veteran, veteran of the Vietnam era, recently separated 
veteran, or other 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 
special disabled veteran, veteran of the Vietnam

[[Page 72156]]

era, recently separated veteran, or other protected veteran; or
    (2) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (e) Relationship or association with a special disabled veteran, 
veteran of the Vietnam era, recently separated veteran, or other 
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 special disabled veteran, 
Vietnam era veteran, recently separated veteran, or other 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 otherwise qualified applicant or 
employee who is a special disabled veteran, unless such contractor can 
demonstrate that the accommodation would impose an undue hardship on 
the operation of its business.
    (2) It is unlawful for the contractor to deny employment 
opportunities to an otherwise qualified job applicant or employee who 
is a special disabled veteran based on the need of such contractor to 
make reasonable accommodation to such an individual's physical or 
mental impairments.
    (3) A qualified special disabled veteran is not required to accept 
an accommodation, aid, service, opportunity or benefit which such 
qualified individual chooses not to accept. However, if such individual 
rejects a reasonable accommodation, aid, service, opportunity or 
benefit that is necessary to enable the individual to perform the 
essential functions of the position held or desired, and cannot, as a 
result of that rejection, perform the essential functions of the 
position, the individual will not be considered a qualified special 
disabled veteran.
    (g) Qualification standards, tests and other selection criteria
    (1) In general. It is unlawful for the contractor to use 
qualification standards, employment tests or other selection criteria 
that screen out or tend to screen out individuals on the basis of their 
status as special disabled veterans, veterans of the Vietnam era, 
recently separated veterans, or other 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 special disabled 
veterans, veterans of the Vietnam era, recently separated veterans, or 
other 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 special disabled veteran, veteran of the 
Vietnam era, recently separated veteran, or other 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 special 
disabled veterans, veterans of the Vietnam era, recently separated 
veterans, or other 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 
o

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