The Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA") creates a variety of affirmative action obligations for employers with federal government contracts. The Act was amended in 2002 by the Jobs for Veterans Act ("JVA"). In May 2008, the Department of Labor finalized rules that implement changes to these obligations made by the JVA for employers with federal government contracts that are entered into or modified on or after December 1, 2003. Employers with federal contracts entered into before December 1, 2003 must continue to comply with VEVRAA's pre-JVA requirements, and employers with contracts in both categories are required to comply with both the new and the old regulations.
Most of the affirmative action requirements set out in VEVRAA remain unchanged by the JVA. This Tip of the Month outlines several important requirements under VEVRAA, and highlights the key changes created by the JVA.
Employers Subject To VEVRAA
The JVA increases the contract value that subjects employers to VEVRAA from $25,000 to $100,000. Thus, contractors with federal contracts entered into before December 1, 2003, with a value of $25,000 or more, are subject to VEVRAA's old pre-JVA requirements. Contractors with a federal contract entered into or modified on or after December 1, 2003 with a value of $100,000 or more are subject to VEVRAA's new JVA requirements. Employers with contracts that fall into both of these categories are subject to both sets of VEVRAA regulations. Contractors that only have a federal contract with a value of less than $100,000, entered into on or after December 1, 2003, are not subject to any VEVRAA regulations.
Veterans Covered Under VEVRAA
The JVA made significant changes to the groups of veterans that are covered under VEVRAA.
- The JVA expands the definition of "recently separated veteran" to include coverage of any veteran within a three-year period after discharge or release from active duty.
- The JVA expands the category of "special disabled veteran" to afford coverage to the broader category of "disabled veteran." The expanded category of "disabled veteran" includes veterans who are entitled to any compensation under laws administered by the Secretary of Veterans Affairs and veterans who were discharged or released from active duty because of a service-connected disability.
- The JVA expands coverage to veterans who participated in a military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985. Veterans who served during a war or in a campaign in which a campaign badge has been authorized also remain covered by VEVRAA. Information about wars and campaigns in which Armed Forces service medals and campaign badges were awarded is available here.
- JVA eliminates a specific category of coverage for veterans of the Vietnam era, although many such veterans will continue to be covered under other categories of covered veterans.
Reporting Requirements
Contractors must submit data on a Veterans' Employment Report (VETS-100 and/or VETS-100A) on September 30 of each year, making the next report due September 30, 2009. These forms ask contractors to list the number of employees and the number of new hires that fall into each of the covered categories of veterans. Contractors with federal contracts from before December 1, 2003, which have not been modified after that date, must submit the VETS-100 report, which asks for information based on the old VEVRAA categories of covered veterans. Contractors with federal contracts created or modified on or after December 1, 2003 must submit the VETS-100A report, which asks for information based on the new categories of covered veterans. These contractors are required to collect and maintain employment data based on the new protected categories of veterans, beginning in 2008. Contractors who have contracts in both categories must file both the VETS-100 and VETS- 100A reports.
Contractors should conduct a thorough survey of their workforces to obtain accurate information regarding the number of employees who fall under the various categories of covered veterans. Most contractors will have to survey employees based on the new categories of covered veterans set out in the JVA. Given the expanded coverage of "recently separated veterans," contractors should implement a system to track the dates when such veterans left the armed services so they can accurately report when these veterans no longer fit into the covered group.
Job Listing Requirements
The JVA requires that contractors list job openings with the appropriate employment service delivery system. An employment service delivery system is a public employment office that provides a variety of services, such as job search assistance, job referral, placement assistance, re-employment services and recruitment services. Contractors also may satisfy this requirement by listing job openings with the state workforce agency job bank in the state where the job opening occurs. A link to the state workforce agency job banks is available here. A contractor must list job openings with the appropriate employment service delivery system or state workforce agency job bank concurrently with its use of any other recruitment effort.
Contractors must list all open positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less.
Affirmative Outreach Efforts
Contractors must engage in affirmative outreach efforts to recruit applicants and employees who are qualified veterans. Contractors should seek assistance from the local veterans associations near the contractors' establishments, including the Department of Veterans Affairs Regional Office, the veterans' organizations on college campuses, national veterans' groups that are active in the area, and local veterans' groups and veterans' service centers. Contractors also should consider contacting the Local Veterans' Employment Representative in the local employment service office near the contractors' establishments. Employers in the construction industry may consider recruiting veterans through programs like Helmets to Hardhats.
Affirmative Action Programs
Contractors with 50 or more employees and a federal contract of $100,000 or more that was entered into on or after December 1, 2003 must maintain a written Affirmative Action Program ("AAP") for covered veterans. Contractors with 50 or more employees and a federal contract of $50,000 or more that was entered into before December 1, 2003 also must maintain a written AAP. Contractors that fall into both categories need only develop one AAP because the JVA did not affect the required contents of a written AAP.
Significantly, an AAP must provide for review of personnel processes to ensure that they involve careful consideration of job qualifications for applicants and employees who are covered veterans. The AAP also must provide for reasonable accommodations to physical and mental limitations of otherwise qualified disabled veterans. Veterans may be experiencing the effects of Post-Traumatic Stress Disorder ("PTSD") or a Traumatic Brain Injury ("TBI"), which may cause difficulties in the workplace. Often, these challenges can be addressed with simple solutions, including alarm clocks, scheduled rest breaks, memory/time management aids, and lighting adjustments. For information on accommodating PTSD or TBI, click here. The AAP should also list the outreach and positive recruitment activities the contractor has undertaken, as described more fully above. A contractor must review and update its AAP annually.
Invitations To Self-Identify
Contractors must invite applicants to self-identify as disabled veterans after making an offer of employment to a job applicant but before the applicant begins his or her employment duties. A contractor may invite disabled veterans to self-identify prior to making a job offer when the contractor is undertaking affirmative action for disabled veterans at the pre-offer stage, or when the invitation is made pursuant to federal, state, or local law requiring affirmative action for disabled veterans.
Contractors must invite all other groups of covered veterans to self-identify at any time before the applicant begins his or her employment duties. The invitation to self-identify should inform individuals that a request to benefit under the affirmative action program may be made immediately or at any time in the future. The invitation should summarize the relevant portions of VEVRAA and the contractor's affirmative action program. The invitations also should state that the information is being requested on a voluntary basis, will be kept confidential, and will not be used in a manner inconsistent with the law.
Recordkeeping Requirements
Contractors must keep any personnel or employment record made by the contractor for two years. These records include job advertisements and postings, applications and resumés, tests and test results, interview notes and requests for reasonable accommodation. Contractors with fewer than 150 employees or who do not have government contracts of at least $150,000 only need to keep these records for one year. Contractors should keep these recordkeeping requirements in mind when posting job openings, conducting affirmative outreach, and inviting individuals to self-identify.
Internal Audits
A contractor covered under VEVRAA must implement an auditing system to measure the effectiveness of its affirmative action program and indicate any need for remedial action. Given the recent implementation of the JVA amendments, we recommend that federal contractors conduct an audit of their affirmative action programs to ensure their practices are in compliance with the new regulations.
Contractors who currently have contracts that were entered into before December 1, 2003 should implement a system that tracks the dates on which such contracts are finished or modified to stay apprised of when they will no longer be subject to VEVRAA's old pre-JVA regulations.
As always, if you have any questions regarding this Client Alert, please contact your Proskauer relationship lawyer or any of the lawyers listed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
