Employment Law Guide

Federal Contracts-Equal Opportunity in Employment: Employment Nondiscrimination and Equal Opportunity for Covered Veterans

Updated: December 2016

Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended;
41 CFR Part 60-300

Who is Covered

The nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, (“VEVRAA”) are administered by the Office of Federal Contract Compliance Programs (OFCCP) and the Veterans’ Employment and Training Service (VETS). VEVRAA generally covers employers with federal contracts or subcontracts that meet the threshold amount specified in the statute. The employer is covered under VEVRAA if the federal contract or subcontract is in the amount of $150,000 or more. Contracts covered by VEVRAA are subject to the implementing regulations found at 41 CFR Part 60-300.

The following types of contracts and subcontracts are not covered under VEVRAA:

• Those for less than $150,000;
• Those for indefinite quantities where the agency determines that the cost in any one year will not exceed $150,000;
• Those for work that is performed outside the U.S.; and
• Those with state or local governments, except for the specific government entity that participates in work on or under the contract.

The Director of the Office of Federal Contract Compliance Programs may grant a waiver from the requirements of VEVRAA in the following circumstances:

• For specific contracts, subcontracts, or purchase orders, if special circumstances in the national interest require such an exemption;
• For facilities not related to performance of the contract, as determined by the Deputy Assistant Secretary upon written request by the contractor; and
• Contracts and subcontracts involving national security, if the head of the contracting agency determines both that the contract is essential to national security, and noncompliance with a particular requirement of VEVRAA or the regulations with respect to the process of awarding the contract is essential to national security
.

The categories of veterans covered under VEVRAA are disabled veterans, recently separated veterans (within three years of discharge or release from active duty), active duty wartime or campaign badge veteran, and veterans who, while serving on active duty in the Armed Forces, participated in a U.S. military operation for which an Armed Forces Service Medal was awarded pursuant to Executive Order 12985 (61 FR 1209).

VEVRAA and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a Federal contract or subcontract. The coverage is narrower than that which applies to employers in the private sector.

Definitions

“Disabled veteran” means a veteran who served on active duty in the U.S. military ground, naval, or air service and is entitled to disability compensation (or who but for the receipt of military retired pay would be entitled to disability compensation) under laws administered by the Secretary of Veterans Affairs, or was discharged or released from active duty because of a service-connected disability.

“Recently separated veterans” means any veteran who served on active duty during the three-year period beginning on the date of such veteran’s discharge or release from active duty.

“Armed forces service medal veteran” means any veteran who, while serving on active duty in the U.S. military ground, naval, or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 Fed. Reg. 1209).

“Active duty wartime or campaign badge veteran” means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense

Basic Provisions/Requirements

The regulations implementing VEVRAA include the obligation to refrain from discrimination in employment against protected veterans. The regulations also require all covered contracts and subcontracts to include a specific equal opportunity clause. The regulations provide the required language for this clause at 41 CFR 60-300.5.

In addition, VEVRAA requires contractors and subcontractors to list most employment openings with an appropriate employment service delivery system. Exempted from this mandatory job listing requirement are executive and top management positions, positions that will be filled from within the contractor’s organization, and positions lasting three days or less. Listing employment openings with the State workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the local employment service delivery system

Covered contractors and subcontractors are also required to make reasonable accommodations for the known physical or mental limitations of qualified disabled veterans, unless providing an accommodation would create an undue hardship. In addition, covered contractors and subcontractors are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against any individual for filing a complaint or participating in a proceeding under VEVRAA.

Affirmative Action Program. Under the regulations implementing VEVRAA, certain contractors and subcontractors are required to have a written affirmative action program (AAP). Each contractor or subcontractor that has (1) 50 or more employees, and (2) a federal contract or subcontract of $150,000 or more, must prepare, implement, and maintain a written AAP for each of its establishments.

Additional information on AAPs may be found on the OFCCP website.

A contractor establishment required under VEVRAA to develop and maintain a written AAP must preserve its AAP supporting documentation for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Employee Rights

Employees and applicants for employment with a covered Federal contractor or subcontractor have the right to file a complaint with OFCCP if they believe that the contractor or subcontractor has discriminated against them on the basis of their status as a protected veteran or otherwise violated VEVRAA and its implementing regulations. Such complaints may be filed online at OFCCP’s How to File a Complaint webpage.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 are required to display the "Know Your Rights" poster. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also display the "Know Your Rights" poster.

The poster must be displayed in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.

The "Know Your Rights" poster is available in Spanish. There is no requirement to display the poster in languages other than English.

Contractors that have the obligation to develop a written VEVRAA AAP must post a notice at each establishment providing the location and hours the AAP may be viewed. Additionally, the policy statement required by the VEVRAA AAP regulations must be posted on company bulletin boards, and made available in accessible format, if necessary, (e.g., large print, or audio file) so that applicants and employees with disabilities are informed of the contents of the policy statement.

Recordkeeping

Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:

• Job descriptions
• Job postings and advertisements
• Records of job offers
• Applications and resumes
• Interview notes
• Tests and test results
• Written employment policies and procedures
• Personnel files

Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 must keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.

Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more must keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.

In addition, all contractors with a Federal contract or subcontract of $150,000 or more, and 50 or more employees, must retain certain records related to outreach and recruitment, the hiring benchmark and data analysis, for a period of three years from the date of the making of the record.

Affirmative Action Program. Under VEVRAA, each employer that has both a Federal contract or subcontract of $150,000 or more, and 50 or more employees, must prepare, implement, and annually update a written affirmative action program (AAP) covering each of its establishments. The employer must make it available for inspection by any employee or applicant for employment, as well as by OFCCP. The program may be integrated with, or kept separate from, any other AAPs the employer is required to prepare. Additional information on AAPs may be found on the OFCCP website.

A contractor establishment required under VEVRAA to develop and maintain a written AAP must preserve its AAP supporting documentation for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Reporting

Federal contractors or subcontractors with a federal contract or subcontract of $150,000 or more, are required to complete and submit the VETS-4212 Report showing the numbers of protected veterans hired or employed during the reporting period. The VETS-4212 Report may be completed online.

Note that contractors may be asked to submit AAPs or other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.

Penalties/Sanctions

OFCCP conducts compliance evaluations and complaint investigations assessing whether Federal contractors and subcontractors are in compliance with VEVRAA. If a violation is found, OFCCP may ask the Federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts succeed, the contractor will enter into a binding conciliation agreement with OFCCP that includes corrective action the contractor will take, and may also include the submission of follow-up reports from the contractor, for a fixed period of time, to assure compliance. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.

If OFCCP files an administrative complaint, the matter will be referred to an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The Department of Labor�s Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ's decision, it may appeal the decision to the Board.

If the Board finds that the contractor or subcontractor has violated VEVRAA, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, or debarment.

Relation to State, Local, and Other Federal Laws

There are no related state or local laws.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Vietnam Era Veterans’ Readjustment Assistance Act. Among the many resources available are:

• elaws Federal Contractor Compliance Advisor: Helps Federal contractors and subcontractors answer basic questions about coverage and compliance issues related to the equal employment opportunity laws administered by OFCCP.
• OFCCP’s webpage on VEVRAA – Includes frequently asked questions, recruitment resources and other materials to assist federal contractors in complying with VEVRAA.

DOL Contacts

Office of Federal Contract Compliance Programs (OFCCP)(https://www.dol.gov/ofccp/)
E-mail: OFCCP-Public@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627

Veterans' Employment and Training Service (VETS)
Contact VETS
Tel: 1-866-237-0275; TTY: 1-877-889-5627

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