On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) established final rules defining Section 503 of the Rehabilitation Act of 1973 (“RA”) and the Jobs for Veterans Act of 2002, which amended the Vietnam Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). The RA and VEVRAA prohibit employers from discriminating against veterans and disabled persons and require federal contractors to pursue affirmative steps to hire individuals belonging to these categories. The final rules, codified at 41 C.F.R. §§60-300 and 60-741, went into effect on March 24, 2014 and establish affirmative action and non-discrimination requirements for government contractors and subcontractors. Employers are expected to take necessary steps within the next six months to comply with their new obligations.
The new obligations established by the DOL include non-binding hiring benchmarks for veterans and disabled persons. Federal contractors are now required to take necessary steps to meet a benchmark of 7% in hiring individuals with disabilities, and to set an annual goal for hiring veterans that matches the national percentage of veterans in the labor force, which is currently at 8%, or calculate its veteran benchmark according to state-specific data published by he OFCCP and the employer’s own experience with application, hiring and recruiting. Federal contractors with 100 or fewer employees may be in compliance with these new rules if they meet the benchmark across their entire workforce instead of each job group. However, an employer may not be penalized solely based on their failure to meet these benchmarks or if they have a legitimate reason for not being able to meet these requirements. For instance, employers located in areas with a very low veteran population and contractors who need specialized type of training that is not available in the veteran community may be able to justify lower affirmative action goals. Employers that cannot meet the benchmarks established by these new rules are required to maintain a three-year record of the reasons for setting lower goals.
Aside from these hiring benchmarks, the new rules require federal contractors and subcontractors to invite individuals to self-identify as veterans or disabled during the application process, the offer period and post-hiring period, during the first year of employment and at least once every five years. Contractors must use specific language while inviting individuals to identify themselves as disabled, and they may follow the DOL’s recommended language for identification of veterans. Additionally, contractors must regularly inform employees that they may update their disability status at any time. Furthermore, these employers must keep record of this information, maintain these disclosures confidential and provide records to the OFCCP upon request.