23358 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Parts 60–250 and 60–300 

RIN 1250–AA00 

Affirmative Action and 

Nondiscrimination Obligations of 

Contractors and Subcontractors 

Regarding Protected Veterans 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Office of Federal Contract 

Compliance Programs (OFCCP) is 

proposing to revise regulations 

implementing the affirmative action 

provisions of the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974, as 

amended, which requires covered 

Federal contractors and subcontractors 

to take affirmative action in 

employment on behalf of specified 

categories of protected veterans. The 

proposed regulations would strengthen 

these affirmative action provisions, 

detailing specific actions a contractor 

must take to satisfy its obligations. They 

would also increase the contractor’s 

data collection obligations, and require 

the contractor to establish hiring 

benchmarks to assist in measuring the 

effectiveness of its affirmative action 

efforts. Rescission of 41 CFR part 60– 

250 as obsolete is also proposed. 

DATES: To be assured of consideration, 

comments must be received on or before 

June 27, 2011. 

ADDRESSES: You may submit comments, 

identified by RIN number 1250–AA00, 

by any of the following methods: 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 693–1304 (for comments 

of six pages or less). 

• Mail: Debra A. Carr, Director, 

Division of Policy, Planning, and 

Program Development, Office of Federal 

Contract Compliance Programs, Room 

C–3325, 200 Constitution Avenue, NW., 

Washington, DC 20210. 

Receipt of submissions will not be 

acknowledged; however, the sender may 

request confirmation that a submission 

has been received by telephoning 

OFCCP at (202) 693–0102 (voice) or 

(202) 693–1337 (TTY) (these are not tollfree numbers). 

All comments received, including any 

personal information provided, will be 

available for public inspection during 

normal business hours at Room C–3325, 

200 Constitution Avenue, NW., 

Washington, DC 20210, or via the 

Internet at http://www.regulations.gov. 

Upon request, individuals who require 

assistance to review comments will be 

provided with appropriate aids such as 

readers or print magnifiers. Copies of 

this Notice of Proposed Rulemaking 

(NPRM) will be made available in the 

following formats: Large print, 

electronic file on computer disk, and 

audiotape. To schedule an appointment 

to review the comments and/or to obtain 

this NPRM in an alternate format, please 

contact OFCCP at the telephone 

numbers or address listed above. 

FOR FURTHER INFORMATION CONTACT: 

Debra A. Carr, Director, Division of 

Policy, Planning and Program 

Development, Office of Federal Contract 

Compliance Programs, 200 Constitution 

Avenue, NW., Room C–3325, 

Washington, DC 20210. 

Telephone: (202) 693–0102 (voice) or 

(202) 693–1337 (TTY). 

SUPPLEMENTARY INFORMATION: 

Background 

Enacted in 1974, the purpose of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, 38 

U.S.C. 4212 (Section 4212), is twofold. 

First, Section 4212 prohibits 

employment discrimination against 

specified categories of veterans by 

Federal government contractors and 

subcontractors. Second, it requires each 

covered Federal government contractor 

and subcontractor to take affirmative 

action to employ and advance in 

employment these veterans. 

The nondiscrimination requirements 

and general affirmative action 

requirements of Section 4212 apply to 

all covered contractors. See 41 CFR 60– 

250.5, 60–300.5. The requirement to 

prepare and maintain an affirmative 

action program, the specific obligations 

of which are detailed at 41 CFR 60– 

250.44 and 60–300.44, apply to those 

contractors that meet the contract 

amount threshold and have 50 or more 

employees. In the Section 4212 context, 

with the awarding of a Federal contract 

comes a number of responsibilities, 

including compliance with the Section 

4212 anti-discrimination and antiretaliation provisions, meaningful and 

effective efforts to recruit and employ 

veterans protected under Section 4212, 

creation and enforcement of personnel 

policies that support its affirmative 

action obligations, maintenance of 

accurate records documenting its 

affirmative action efforts, and providing 

OFCCP access to these records upon 

request. Failure to abide by these 

responsibilities may result in various 

sanctions, from withholding progress 

payments up to and including 

termination of contracts and debarment 

from receiving future contracts. 

The framework articulating a 

contractor’s responsibilities with respect 

to affirmative action, recruitment, and 

placement has remained unchanged 

since the Section 4212 implementing 

rules were first published in 1976. 

Meanwhile, increasing numbers of 

veterans are returning from tours of duty 

in Iraq, Afghanistan, and other places 

around the world, and many are faced 

with substantial obstacles in finding 

employment upon leaving the service. A 

March 2010 report from the Bureau of 

Labor Statistics found that the 2009 

annual average unemployment rate for 

veterans 18 to 24 years old was 21.1%, 

compared with 16.6% for non-veterans 

in that age group. The unemployment 

rate for veterans 25 to 34 years old was 

11.1%, compared with 9.8% for nonveterans in that age group. Addressing 

the barriers our veterans face in 

returning to civilian life, particularly 

with regard to employment, is the focus 

of a number of Federal efforts, such as 

the Work Opportunity Tax Credit 

established for employers who hire 

unemployed disabled veterans as part of 

the American Recovery and 

Reinvestment Act signed into law by 

President Obama in February 2009. 

Strengthening the implementing 

regulations of Section 4212, whose 

stated purpose is ‘‘to require 

Government contractors to take 

affirmative action to employ and 

advance in employment qualified 

covered veterans,’’ will be another 

important means by which the 

government can address the issue of 

veterans’ employment. 

Prior to issuing this NPRM, OFCCP 

conducted multiple town hall meetings, 

webinars, and listening sessions with 

individuals from the contractor 

community, state employment services, 

veterans’ organizations, and other 

interested parties to understand those 

features of Section 4212’s regulations 

that work well, those that can be 

improved, and possible new 

requirements that could help to 

effectuate the overall goal of increasing 

the employment opportunities for 

qualified protected veterans with 

Federal contractors. 

Accordingly, this NPRM proposes 

several major changes to parts 60–250 

and 60–300. The VEVRAA regulations 

found at 41 CFR part 60–250 generally 

apply to Government contracts of 

$25,000 or more entered into before 

December 1, 2003. The threshold 

amount for coverage is a single contract 

of $25,000 or more; contracts are not 

aggregated to reach the coverage 


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threshold. If a Federal contractor 

received a government contract of at 

least $50,000 prior to December 1, 2003, 

an AAP must be developed in 

accordance with the 41 CFR part 60–250 

VEVRAA regulations. As explained 

below, some contracts that were entered 

into before December 1, 2003 will be 

subject to the regulations found at 41 

CFR part 60–300. 

The regulations found at 41 CFR part 

60–300 apply to Government contracts 

entered into on or after December 1, 

2003. The threshold amount for 

coverage and AAP threshold coverage is 

a single contract of $100,000 or more, 

entered into on or after December 1, 

2003; contracts are not aggregated to 

reach the coverage threshold. The 

regulations found at 41 CFR part 60–300 

also apply to modifications of otherwise 

covered Government contracts made on 

or after December 1, 2003. 

Consequently, a contract that was 

entered into before December 1, 2003, 

will be subject only to the part 60–300 

regulations if it is modified on or after 

December 1, 2003 and meets the 

contract dollar threshold of $100,000 or 

more. 

The detailed Section-by-Section 

Analysis below identifies and discusses 

all proposed changes in each section. 

Due to the extensive proposed revisions 

to the Section 4212 regulations, part 60– 

300 and the alternate part 60–250 (in the 

event part 60–250 is not rescinded, as 

discussed in the Summary section above 

and detailed in the part 60–250 Sectionby-Section Analysis below) will be 

republished in their entirety in this 

NPRM for ease of reference. However, 

the Department is only accepting 

comments on the proposed revisions of 

the regulations detailed herein. 

Section-by-Section Analysis 

41 CFR Part 60–250 

OFCCP is proposing two alternative 

approaches to part 60–250. 

The first approach is to rescind part 

60–250 in its entirety. As stated above, 

part 60–250 only covers those contracts 

of $25,000 or more entered into prior to 

December 1, 2003—over seven years 

before the publication of this NPRM— 

that have been unmodified since that 

time, or have been modified while 

maintaining a total contract value 

between $25,000 and $100,000. Federal 

Acquisition Regulation 17.204 states 

that, in general, government contract 

duration should not exceed five (5) 

years. Further, all contracts under 

$100,000 are subject to the simplified 

acquisition threshold and cannot be 

renewed. Thus, unless special excepted 

contracts exist, contracts covered 

exclusively by part 60–250 would have 

expired by December 1, 2008. 

It is for these reasons that we propose 

rescission of part 60–250. However, to 

ensure that we do not inadvertently 

deprive protected veterans of their 

Section 4212 rights, we seek comment 

from the public as to whether any 

contracts that are covered by part 60– 

250 still exist. 

In the event that contracts are 

discovered that do fall under part 60– 

250’s coverage, we will not seek to 

rescind part 60–250; rather, we propose 

a second approach: A revised part 60– 

250 that mirrors the changes that we 

have proposed to part 60–300. A 

Section-by-Section Analysis of this 

alternative follows below. 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

Section 60–250.1 Purpose, 

Applicability and Construction 

Paragraph (a) of the current rule sets 

forth the scope of Section 4212 and the 

purpose of its implementing regulations. 

We propose a few minor changes to this 

section. First, we propose deleting the 

reference to the ‘‘Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974’’ or 

‘‘VEVRAA,’’ and replacing it, in this 

section and throughout the regulation, 

with ‘‘Section 4212.’’ Referring to the 

operative law as ‘‘VEVRAA’’ is not 

entirely accurate, as Section 4212, 

where VEVRAA was initially codified, 

has been amended several times since 

VEVRAA was passed—most recently by 

the Jobs for Veterans Act of 2002 (JVA), 

which amended the categories of 

protected veterans and the dollar 

amount for contract coverage that 

subsequently led to the promulgation of 

the regulations found at part 60–300. 

Referring to the law as ‘‘Section 4212’’ 

clarifies that we are referring to the law 

as amended. This is more accurate than 

‘‘VEVRAA’’ and should alleviate any 

further confusion. 

Second, paragraph (a) discusses the 

contractor’s affirmative action 

obligations, but does not discuss 

another primary element of the 

regulations: The prohibition of 

discrimination against veterans 

protected under Section 4212. 

Accordingly, the proposed regulation 

adds language to the first sentence of 

paragraph (a) to include this important 

element. 

Additionally, the proposed rule 

makes two minor language changes in 

order to comport with some of the 

newly proposed definitions in § 60– 

250.2. First, the term ‘‘other protected 

veterans’’ is amended to read ‘‘active 

duty wartime or campaign badge 

veterans,’’ for the reasons detailed in the 

Section-by-Section Analysis of § 60– 

250.2. Second, all references to ‘‘covered 

veterans’’ is amended to read ‘‘protected 

veterans,’’ due to the inclusion of a 

definition for ‘‘protected veteran’’ in the 

proposed § 60–250.2. 

Section 60–250.2 Definitions 

The proposed rule incorporates the 

vast majority of the existing definitions 

contained in existing § 60–250.2 

without change. However, OFCCP 

proposes some changes to the substance 

and structure of this section, as set forth 

below. 

With regard to the structure of this 

section, the current rule lists the 

definitions in order of subject matter. 

However, for those who are unfamiliar 

with the regulations, this organizational 

structure makes it difficult to locate 

specific terms within this section. The 

proposed rule reorders the defined 

terms in alphabetical order, and then 

assigns each term a lettered 

subparagraph heading. This modified 

structure is proposed for ease of 

reference, and to facilitate citation to 

specific definitions. However, because 

of this reordering, the citation to 

specific terms may be different in the 

proposed rule than it is currently. For 

instance, the term ‘‘contract,’’ which is 

§ 60–250.2(h) in the current regulations, 

is § 60–250.2(d) in the proposed 

regulation. 

With regard to substantive changes, 

the proposed rule first clarifies the 

definitions pertaining to the 

classifications of veterans who are 

protected under part 60–250. The 

classifications of protected veterans in 

part 60–250 are those described in 

Section 4212 prior to the enactment of 

the JVA and are as follows: (1) Special 

disabled veterans; (2) veterans of the 

Vietnam era; (3) veterans who served on 

active duty in the Armed Forces during 

a war or in a campaign or expedition for 

which a campaign badge has been 

authorized; and (4) recently separated 

veterans. Currently, § 60–250.2 includes 

specific definitions for ‘‘special disabled 

veterans,’’ ‘‘veterans of the Vietnam era,’’ 

and ‘‘recently separated veterans,’’ See 

41 CFR 60–250.2(n), (p), (r). It does not 

contain a specific definition for 

‘‘veterans who served on active duty in 

the Armed Forces during a war or in a 

campaign or expedition for which a 

campaign badge has been authorized.’’ 

Instead, this classification is included 

within the current ‘‘other protected 

veteran’’ definition. See 41 CFR 60– 

250.2(q). This anomaly has caused 

significant confusion, as many 

individuals who are unfamiliar with the 

regulations believe that the ‘‘other 


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protected veteran’’ category is a ‘‘catchall’’ that includes all veterans. To 

address this issue, the proposed rule 

replaces the ‘‘other protected veteran’’ 

definition that is contained in the 

current regulation with the more precise 

classification language ‘‘active duty 

wartime or campaign badge veteran’’ 

that appears in the statute. This 

replacement will not change the scope 

of coverage. Instead, individuals 

currently covered under the ‘‘other 

protected veteran’’ classification as 

defined in the current rule will still be 

covered, but will fall under the more 

accurate ‘‘active duty wartime or 

campaign badge veteran’’ classification. 

It should be noted that this proposed 

rule does not revise the VETS–100 form, 

which is administered by the 

Department’s Veterans’ Employment 

and Training Service (VETS) and 

requires the contractor to tabulate the 

number of employees and new hires in 

each of the component categories of 

protected veterans under Section 4212. 

The VETS–100 form currently maintains 

the use of ‘‘other protected veteran’’ 

classification. After the final rule 

pertaining to these regulations is 

published, OFCCP will work with VETS 

to conform the VETS–100 forms to the 

new Section 4212 regulations. DOL will 

provide the public with an opportunity 

to comment on these changes, which 

will not become effective until approved 

by the Office of Management and 

Budget in accordance with the 

Paperwork Reduction Act of 1995. 

The current rule also lacks a clear, 

overarching definition of ‘‘protected 

veteran,’’ under part 60–250. Although it 

discusses the responsibilities of a 

contractor to all categories of protected 

veterans collectively, it also enumerates 

each classification of protected veteran 

several times throughout the regulation. 

Accordingly, the proposed rule includes 

a new definition of ‘‘protected veteran,’’ 

which includes all four classifications of 

protected veterans separately identified 

and defined in 60–250.2. This new term 

would replace the phrase ‘‘special 

disabled veteran(s), veterans of the 

Vietnam era, recently separated 

veteran(s), or other protected veteran(s)’’ 

used throughout the current rule to refer 

to these protected veterans in the 

aggregate. The individual categories of 

protected veterans continue to be 

separately identified in the first 

paragraph of the equal opportunity 

clause in § 60–250.5 to permit the 

identification of protected veterans in 

the context of the contract (see Sectionby-Section Analysis of § 60–250.5, infra, 

for further explanation). 

The proposed rule also replaces the 

term ‘‘Deputy Assistant Secretary,’’ 

found currently at § 60–250.2(d), with 

‘‘Director.’’ The current § 60–250.2(d) 

defines ‘‘Deputy Assistant Secretary’’ as 

‘‘the Deputy Assistant Secretary for 

Federal Contract Compliance of the 

United States Department of Labor, or 

his or her designee.’’ Following the 

elimination of the Employment 

Standards Administration in November 

2009, the head of OFCCP now has the 

title of Director. Accordingly, the 

proposed rule reflects this change, 

which will be made throughout part 60– 

250. 

The proposed rule also adds a 

definition of employment service 

delivery system, defined in current 

§ 60–300.2(y). Because the term 

‘‘employment service delivery system’’ is 

mentioned in part 60–250, for example, 

in paragraph 2 of the equal opportunity 

clause found in § 60–250.5(a), we have 

added the definition for clarity. 

The proposed rule also adds a 

definition of ‘‘linkage agreement,’’ now 

described in the OFCCP Federal 

Contract Compliance Manual. We 

propose adding a definition of ‘‘linkage 

agreement’’ to the regulations for clarity. 

The proposed regulation defines 

‘‘linkage agreement’’ to mean an 

agreement between the contractor and 

appropriate recruitment and/or training 

sources. A linkage agreement is to be 

used by the contractor as a source of 

potential applicants to the covered 

groups in which the contractor is 

interested. The contractor’s 

representative that signs the linkage 

agreement should be the company 

official responsible for the contractor’s 

affirmative action program and/or has 

hiring authority. 

Section 60–250.3 [Reserved] 

Section 60–250.4 Coverage and 

Waivers 

The proposed regulation replaces the 

term ‘‘Deputy Assistant Secretary,’’ 

found in paragraphs (b)(1), (b)(2), and 

(b)(3) of this section, with the term 

‘‘Director,’’ for the reasons set forth in 

the discussion of § 60–250.2. 

Section 60–250.5 Equal Opportunity 

Clause 

Paragraph (a) contains the equal 

opportunity (EO) clause that must be 

included in all covered Government 

contracts and subcontracts. The 

proposed regulation includes numerous 

substantive changes. 

First, the proposed regulation adds 

additional language to subparagraph 2 

of the EO clause in this section 

clarifying the contractor’s responsibility 

to ‘‘list’’ jobs in the context of mandatory 

listing requirements. The mandatory job 

listing requirement discussed in 

paragraphs 2 and 3 of the EO clause 

mandates that the contractor list all 

employment openings for the duration 

of the contract with an ‘‘appropriate 

employment service delivery system,’’ 

(hereinafter ‘‘employment service’’). This 

listing not only provides a source for 

veterans to access job listings, but also 

allows the employment service to 

provide priority referrals of veterans for 

the Federal contractor jobs listed with 

the employment service. Following the 

publication of the most recent revisions 

to part 60–250 regulations, questions 

were raised as to the manner in which 

a contractor must provide information 

to an employment service in order to 

satisfy the requirement. There have been 

many instances in which a contractor 

provided job listings to an employment 

service in a manner or format that was 

unusable to that employment service. In 

order to satisfy the listing requirement, 

the contractor must provide job vacancy 

information to the appropriate 

employment service in the manner that 

the employment service requires in 

order to include the job in their database 

so that they may provide priority 

referral of veterans. OFCCP has long 

interpreted the listing responsibilities of 

a contractor in this manner. This change 

clarifies OFCCP’s policy. 

The proposed regulation also adds a 

sentence to the end of paragraph 2 

clarifying that, for any contractor who 

utilizes a privately-run job service or 

exchange to comply with its mandatory 

listing obligation, the information must 

be provided to the appropriate 

employment service in the manner that 

the employment service requires. This 

clarification is proposed for two 

reasons. First, contractors’ use of private 

job listing services has increased 

following the elimination of the 

Department’s America’s Job Bank listing 

service. Second, we have received 

feedback from officials in state 

employment services that some 

contractors provide job listing 

information to these private job listing 

services assuming that they have then 

fulfilled their listing obligations, but 

that the private job listing services do 

not always provide the information in 

the requisite manner in order to list the 

job opening in its database and provide 

priority referral of protected veterans. 

The proposed regulations also add 

further detail to paragraph 4 of the EO 

clause with respect to the specific 

information the contractor must provide 

to state employment services in each 

state where the contractor has 

establishments. The current regulations 

require that the contractor provide the 

appropriate state employment service 


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with the name and location of each of 

the contractor’s hiring locations. The 

proposed regulations require that the 

contractor provide the state employment 

service with the following additional 

information: (1) Its status as a Federal 

contractor; (2) the contact information 

for the contractor hiring official at each 

location in the state; and (3) its request 

for priority referrals of protected 

veterans for job openings at all its 

locations within the state. This 

information shall be updated on an 

annual basis. These three additional 

items are proposed in light of feedback 

received from state employment 

services that there is no centralized list 

of Federal contractors that they can 

consult in order to determine if a listing 

employer is a Federal contractor. If the 

Federal contractor does not specifically 

identify itself as such to the state 

employment service and further identify 

the hiring official, the state employment 

service often will not know if it should 

be providing priority referrals of 

protected veterans as required by § 60– 

250.84 or who to contact. Requiring the 

Federal contractor to provide this 

additional information will facilitate the 

priority referral process. The proposed 

regulation also adds a sentence 

clarifying that, if the contractor uses any 

outside job search companies (such as a 

temporary employment agency) to assist 

in its hiring, the contractor must also 

provide the state employment service 

with the contact information for these 

outside job search companies. Due to 

the widespread use of these outside job 

search companies, this proposed 

language is included to ensure that the 

state employment service has the ability 

to contact all individuals responsible for 

a contractor’s hiring in order to 

effectively carry out its obligations 

under § 60–250.84. Finally, the 

proposed regulation replaces the terms 

‘‘state employment security agency,’’ 

‘‘state agency,’’ and ‘‘workforce agency’’ 

found in a few instances in this 

paragraph, with the term ‘‘employment 

service delivery system.’’ The terms are 

interchangeable as used in this 

paragraph, and as we propose to add 

‘‘employment service delivery system’’ 

to the definitions in § 60–250.2, we use 

it instead. 

The proposed regulation adds a new 

paragraph 5 to the EO clause which 

requires the contractor to maintain 

records, on an annual basis, of the total 

number of referrals it receives from state 

employment services, the number of 

priority referrals of protected veterans it 

receives, and the ratio of protected 

veteran referrals to total referrals. This 

is one of a few new data collection 

requirements set forth in this NPRM that 

are proposed in order to give the 

contractor (as well as OFCCP, in the 

course of compliance evaluations) a 

quantifiable measure of the availability 

of protected veterans in the workforce. 

The contractor would be required to 

maintain these records on the number of 

referrals for five (5) years. We propose 

a five year record retention requirement 

for multiple reasons. First, because the 

proposed rule anticipates that the 

contractor will use the referral data in 

setting annual hiring benchmarks (see 

Section-by-Section discussion in 250.45, 

infra) we wanted to ensure that the 

contractor has sufficient historical data 

on the number of referrals it has 

received in years past to meaningfully 

inform the benchmarks it sets going 

forward. Further, because the proposed 

rule anticipates that the contractor will 

review its outreach efforts and adjust 

them to maximize recruitment of 

protected veterans (see Section-bySection discussion in 250.44(f)(3), 

infra), we wanted to ensure that the 

contractor has sufficient historical data 

to recognize meaningful trends in 

recruitment and, subsequently, to 

identify effective recruitment efforts that 

corresponded with time periods of 

increased recruitment of protected 

veterans. If the contractor had fewer 

years of referral data on hand, it is less 

likely that the data would provide 

meaningful assistance to the contractor 

in these respects. We solicit public 

comment on the burden and practical 

utility of this requirement. 

In paragraph 10 of the EO clause 

(currently paragraph 9; renumbered due 

to the newly proposed paragraph 5, 

above), we propose two revisions. The 

third sentence of this paragraph is 

revised to clarify the contractor’s duty to 

provide notices of employee rights and 

contractor obligations in a manner that 

is accessible and understandable to 

persons with disabilities. It also revises 

the parenthetical at the end of the 

sentence, replacing the outdated 

suggestion of ‘‘hav[ing] the notice read 

to a visually disabled individual’’ as an 

accommodation with the suggestion to 

provide Braille, large print, or other 

versions that allow persons with 

disabilities to read the notice 

themselves. The proposed regulations 

would also add the following sentences 

to the end of proposed paragraph 10 

(current paragraph 9) of the EO clause: 

‘‘With respect to employees who do not 

work at a physical location of the 

contractor, a contractor will satisfy its 

posting obligations by posting such 

notices in an electronic format, 

provided that the contractor provides 

computers that can access the electronic 

posting to such employees, or the 

contractor has actual knowledge that 

such employees are otherwise able to 

access the electronically posted notices. 

Electronic notices for employees must 

be posted in a conspicuous location and 

format on the company’s intranet or sent 

by electronic mail to employees. An 

electronic posting must be used by the 

contractor to notify job applicants of 

their rights if the contractor utilizes an 

electronic application process. Such 

electronic applicant notice must be 

conspicuously stored with, or as part of, 

the electronic application.’’ The addition 

of these sentences is in response to the 

increased use of telecommuting and 

other work arrangements that do not 

include a physical office setting, as well 

as Internet-based application processes 

in which applicants never enter a 

contractor’s physical office. These 

revisions therefore would permit 

equivalent access to the required notices 

for these employees and applicants. 

For paragraph 11, which refers to the 

contractor’s obligation to notify labor 

organizations or other worker 

representatives about its obligations 

under Section 4212, we propose adding 

language clarifying that these 

obligations include non-discrimination, 

in addition to affirmative action. The 

current paragraph 11 does not 

specifically mention the contractor’s 

non-discrimination obligations. 

The proposed regulations add a new 

paragraph 13 to the EO clause which 

would require the contractor to state 

and thereby affirm in solicitations and 

advertisements that it is an equal 

employment opportunity employer of 

veterans protected under Section 4212. 

A comparable clause exists in the equal 

opportunity clause of the Executive 

Order 11246 regulations, see 41 CFR 60– 

1.4(a)(2), describing the protected 

classes under that Order. This proposed 

addition ensures consistency between 

the regulations and aids in 

communicating the contractor’s EEO 

responsibilities to job seekers. 

The proposed regulations amend 

paragraphs (d) and (e) of this section to 

require that the entire equal opportunity 

clause be included verbatim in Federal 

contracts. This is to ensure that the 

contractor and subcontractor read and 

understand the language in this clause. 

Feedback from town hall meetings and 

webinars conducted by OFCCP prior to 

the publication of this proposed rule 

indicated that some contractors, and 

especially subcontractors, are not aware 

of their EO Clause responsibilities. In 

the case of subcontractors, they often 

rely on the prime contractors to inform 

them of their nondiscrimination and 


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affirmative action program obligations. 

If the EO Clause is not written in full, 

subcontractors are disadvantaged and 

often unaware of their statutory 

obligations until audited by OFCCP. 

Particularly given the emphasis the 

administration and Congress have 

placed on veterans’ employment issues, 

we believe it is important to take 

whatever steps will inform contractors 

and subcontractors of the obligations 

under the EO Clause. OFCCP solicits 

public comment on this proposal and 

any other steps that would increase the 

contractor community’s awareness of its 

obligations. 

The proposed regulation also replaces 

the term ‘‘Deputy Assistant Secretary,’’ 

found in paragraph (f) of this section 

and in paragraphs 9 and 11 of the EO 

clause, with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–250.2. It also replaces the phrase 

‘‘special disabled veteran(s), veteran(s) 

of the Vietnam era, recently separated 

veteran(s), or other protected veteran(s)’’ 

found in the second sentence of 

Paragraph 1 and in Paragraph 9 of the 

EO clause, with the term ‘‘protected 

veteran,’’ for the reasons set forth in the 

discussion of § 60–250.2. This phrase 

remains in the first sentence of 

Paragraph 1 (with ‘‘active duty wartime 

or campaign badge veteran’’ replacing 

‘‘other protected veteran,’’ as discussed 

in § 60–250.2, supra) of the EO clause so 

it is clear to those reading the clause 

independently from the rest of the 

regulation precisely which 

classifications of veterans are protected 

by this part of the Section 4212 

regulations. Additionally, to ensure that 

the contractor is aware of the 

appropriate definitions, we propose 

adding a footnote to the title of the EO 

Clause stating explicitly that the 

definitions set forth in 41 CFR 60–250.2 

apply to the EO Clause and are 

incorporated by reference. Finally, all 

references to ‘‘VEVRAA’’ are replaced 

with the term ‘‘Section 4212,’’ for the 

reasons set forth in the discussion of 

§ 60–250.1. 

Subpart B—Discrimination Prohibited 

Section 60–250.21 Prohibitions 

This section of the rule defines and 

addresses prohibited discriminatory 

conduct under Section 4212. The 

proposed rule includes an additional 

clause at the end of paragraph (f)(3), 

qualifying that an individual who 

rejects a reasonable accommodation 

made by the contractor may still be 

considered a qualified disabled veteran 

if the individual subsequently provides 

and/or pays for a reasonable 

accommodation. For instance, if a 

veteran knows that a certain piece of 

equipment that he or she already owns 

will allow him or her to perform the 

functions of the job, and that equipment 

would represent an undue burden for 

the contractor to provide, the veteran 

would be able to provide his or her own 

equipment and still be considered a 

qualified disabled veteran. We propose 

inserting this language to ensure 

consistency with the requirement in 

paragraph 4 of Appendix A to the 

proposed rule, which requires that 

individuals be allowed to pay for or 

provide their own accommodation if 

providing the accommodation for the 

employee would represent an undue 

burden to the contractor. 

The proposed revisions also include 

minor language changes, replacing the 

phrase ‘‘special disabled veteran(s), 

veteran(s) of the Vietnam era, recently 

separated veteran(s), or other protected 

veteran(s)’’ found in paragraphs (a), (b), 

(c)(1), (d)(1), (e), (g)(1), and (i) with the 

term ‘‘protected veteran,’’ for the reasons 

set forth in the discussion of § 60–250.2, 

above. 

Section 60–250.22 Direct Threat 

Defense 

The proposed revisions change ‘‘§ 60– 

250.2(w)’’ in the parenthetical at the end 

of this section to ‘‘§ 60–250.2(f),’’ in light 

of restructuring the Definitions section 

in alphabetical order, as discussed in 

§ 60–250.2, above. 

Section 60–250.24 Drugs and alcohol 

We propose a correction to paragraph 

(b)(3) of this section, to refer to § 60– 

250.23(d)(2) instead of (c). 

Subpart C—Affirmative Action 

Program 

Section 60–250.40 Applicability of the 

Affirmative Action Program 

Requirement 

This section sets forth which 

contractors are required to maintain an 

affirmative action program, and the 

general timing requirements for its 

creation and submission to OFCCP. We 

propose a minor clarification to 

paragraph (c) of this section, specifying 

that the affirmative action program shall 

be reviewed and updated annually ‘‘by 

the official designated by the contractor 

pursuant to § 60–250.44(i).’’ While this 

is the intent of the existing language, the 

proposal clarifies this intention d 

ensures that company officials who are 

knowledgeable of the contractor’s 

affirmative action activities and 

obligations are reviewing the program. 

Section 60–250.41 Availability of 

Affirmative Action Program 

This section sets forth the manner by 

which the contractor must make its 

affirmative action programs available to 

employees for inspection, which 

includes that the location and hours 

during which the program may be 

obtained. The proposed regulation adds 

a sentence at the end of this section 

requiring that, in instances where the 

contractor has employees who do not 

work at the contractor’s physical 

establishment, the contractor shall 

inform these employees about the 

availability of the affirmative action 

program by means other than a posting 

at its establishment. This addition is 

proposed in light of the increased use of 

telecommuting and other flexible 

workplace arrangements. 

Section 60–250.42 Invitation to Selfidentify 

The proposed revisions of this section 

make significant, substantive changes to 

the contractor’s responsibilities and the 

process through which applicants are 

invited to self-identify as a veteran 

protected under the part 60–250 

regulations, particularly those set forth 

in paragraphs (a) and (b). As described 

more fully below, these changes are 

proposed in order to collect enhanced 

data pertaining to protected veterans, 

which will allow the contractor and 

OFCCP to identify and monitor the 

contractor’s employment practices with 

respect to protected veterans. 

The current regulation requires the 

contractor to invite applicants, who are 

special disabled veterans as defined in 

60–250.2, to self-identify only after 

making an offer of employment, subject 

to two exceptions. See § 60–250.42(a). 

For all other veterans protected by part 

60–250, the current regulation requires 

the contractor to invite such applicants 

to self-identify ‘‘before they begin [their] 

employment duties.’’ See § 60– 

250.42(b). 

The two exceptions to the prohibition 

on inviting special disabled veterans to 

self-identify pre-offer contained in 41 

CFR 250.42(a) are not proposed to 

change. The exceptions permit a 

contractor to invite special disabled 

veterans to self-identify prior to making 

a job offer when: (1) The invitation is 

made while 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. These two exceptions 

are identical to the exceptions to the 

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related inquiries contained in the 

implementing regulations for Section 

503 of the Rehabilitation Act of 1973, as 

amended, 29 U.S.C. 793 (Section 503). 

See 41 CFR 60–741.42. Consequently, 

under existing Section 4212 regulations, 

the contractor is permitted, although not 

required, to create employment 

programs targeting special disabled 

veterans and inviting applicants to 

identify whether they are eligible for the 

program pre-offer. OFCCP is not 

proposing a change in this provision. 

The proposed change requires the 

contractor to invite all applicants to selfidentify as a ‘‘protected veteran’’ prior to 

the offer of employment. This proposed 

change would invite applicants to selfidentify as a ‘‘protected veteran’’ at the 

pre-offer stage; it would not seek the 

specific protected classification of 

protected veteran (special disabled 

veteran, veteran of the Vietnam era, 

recently separated veteran, or active 

duty wartime or campaign badge 

veteran). The pre-offer invitation would 

not require protected veteran applicants 

to disclose their status as a protected 

veteran if they chose not to (see the 

proposed Sample Invitation to SelfIdentify in Appendix B, infra). This new 

pre-offer self-identification step also 

would include the requirement, 

currently stated in paragraph (e) of this 

section, that the contractor maintain the 

pre-offer self-identification data and 

supply it to OFCCP upon request. 

Incorporating self-identification into the 

application process would allow the 

contractor, and subsequently OFCCP, to 

collect valuable, targeted data on the 

number of protected veterans who apply 

for Federal contractor positions. This 

data would enable the contractor and 

OFCCP to measure the effectiveness of 

the contractor’s recruitment and 

affirmative action efforts over time. 

Moreover, the contractor and OFCCP 

will be better equipped to improve and 

refine successful and effective recruiting 

mechanisms, thereby increasing the 

number of applications from protected 

veterans. Additionally, this data will 

enable OFCCP to identify and promote 

successful recruitment and affirmative 

efforts taken by the contractor 

community. 

Through the various outreach efforts 

to stakeholders OFCCP has conducted 

in advance of this NPRM, an issue has 

been raised regarding the implementing 

regulations of Title I of the ADA and 

Section 503, which limit the extent to 

which employers may inquire about 

disabilities prior to an offer of 

employment. See 29 CFR 1630.13, 

1630.14; 41 CFR 60–741.42. The 

concern is that requiring the contractor 

to invite applicants to self-identify as a 

protected veteran would violate the 

general prohibition against pre-offer 

disability-related inquiries because 

some protected veterans will be special 

disabled veterans. This concern is 

misplaced, as the ADA and Section 503 

regulations permit the contractor to 

conduct a pre-offer inquiry into 

disability status if it is ‘made pursuant 

to a Federal, state or local law requiring 

affirmative action for individuals with 

disabilities,’ such as Section 4212 or 

Section 503. Id. 

However, while it would be legally 

permissible to do so, OFCCP is not 

proposing that the pre-offer selfidentification identify the specific 

category of protected veteran for three 

primary reasons. First, given that the 

overall population of protected veterans 

is already relatively small, dividing the 

pool of protected veterans into smaller 

component classifications would tend to 

reduce the ability of the contractor to 

engage in meaningful data analysis of 

applicants, such as that proposed in 

§ 60–250.44(h) and (k). Second, a 

protected veteran may fall into several 

protected categories, which could create 

unnecessary complexity to data 

analysis. For example, the same 

individual could be a protected veteran 

because he or she is a special disabled 

veteran and a veteran of the Vietnam 

era. Finally, at the pre-offer stage under 

the proposed rule the contractor’s 

obligations would be the same with 

respect to each category of protected 

veteran, thus there is no apparent 

benefit to knowing the specific category 

of protected veteran to which an 

applicant belongs. 

In addition to the pre-employment 

self-identification provisions in § 60– 

250.42(a) of the proposed rule, § 60– 

250.42(b) of the proposed rule also 

requires the contractor to invite 

individuals, after the offer of 

employment is extended, to self-identify 

as a member of one or more of the four 

classifications of protected veterans 

under part 60–250. Thus, post-offer 

identification will enable the contractor 

to capture refined data pertaining to 

each classification of protected veterans, 

as set forth in the VETS–100 form, 

which the contractor is required to 

maintain and submit. As is currently the 

case, the post-offer self-identification as 

a special disabled veteran would not 

require applicants to disclose the 

specific nature of their disability. 

We propose to revise paragraph (c) of 

this section by deleting the second 

sentence of the parenthetical at the end 

of the paragraph. This sentence 

described the format of and rationale 

behind the current Appendix B, which 

has been substantially amended in light 

of the new self-identification procedures 

proposed herein. For the same reasons, 

we propose revising paragraph (d) of 

this section to reflect the newly 

proposed self-identification process in 

which applicants will only identify 

themselves as special disabled veterans 

specifically after an offer of employment 

is made. Further, we propose revising 

paragraph (d) to require, rather than 

suggest, that the contractor seek the 

advice of the applicant regarding 

accommodation. Requiring this of the 

contractor will help initiate a robust 

interactive and collaborative process 

between the contractor and the 

employee or applicant to identify 

effective accommodations that will 

facilitate a special disabled veteran’s 

ability to perform the job. While the 

purpose of this requirement is to 

promote agreement between the 

contractor and employee or applicant 

regarding accommodations to be used, 

this proposed change would not require 

that, in the event that multiple 

reasonable accommodations exist, the 

contractor must utilize the reasonable 

accommodation preferred by the 

employee or applicant. 

We also propose replacing the term 

‘‘appropriate accommodation’’ in 

paragraph (d) with ‘‘reasonable 

accommodation.’’ We have always 

interpreted ‘‘appropriate 

accommodation’’ in this paragraph as 

substantively identical to the term 

‘‘reasonable accommodation.’’ However, 

‘‘reasonable accommodation’’ is already 

defined in these regulations and has a 

more broadly used and accepted legal 

definition, we propose using it here to 

avoid any confusion. This language 

change does not alter the contractor’s 

existing obligations. 

Section 60–250.43 Affirmative Action 

Policy 

This section outlines the contractor’s 

non-discrimination and affirmative 

action obligations under Section 4212. 

We propose two minor revisions to this 

section. 

First, we propose replacing the phrase 

‘‘because of status as a’’ in this section 

to ‘‘against,’’ in order to clarify that the 

non-discrimination requirements of 

Section 4212 are limited to protected 

veterans and that reverse discrimination 

claims may not be brought by 

individuals who do not fall under one 

of the categories of veterans protected 

by part 60–250. Second, we propose 

replacing the phrase ‘‘special disabled 

veteran(s), veteran(s) of the Vietnam era, 

recently separated veteran(s), or other 

protected veteran(s),’’ used twice in this 

section, with the term ‘‘protected 


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veteran,’’ for the reasons set forth in the 

discussion of § 60–250.2. 

Section 60–250.44 Required Contents 

of Affirmative Action Programs 

This section details the elements that 

the contractor’s affirmative action 

programs must contain. These existing 

elements include: (1) An equal 

employment opportunity policy 

statement; (2) a comprehensive annual 

review of personnel processes; (3) a 

review of physical and mental job 

qualifications; (4) a statement that the 

contractor is committed to making 

reasonable accommodations for persons 

with physical and mental disabilities; 

(5) a statement that the contractor is 

committed to ensuring a harassmentfree workplace for protected veterans; 

(6) external dissemination of the 

contractor’s affirmative action policy, as 

well as outreach and recruitment efforts; 

(7) the internal dissemination of the 

contractor’s affirmative action policy to 

all of its employees; (8) the development 

and maintenance of an audit and 

reporting system designed to evaluate 

affirmative action programs; and (9) 

training for all employees regarding the 

implementation of the affirmative action 

program. 

The first substantive proposed 

revisions to this section focus on the 

contractor’s policy statement as set forth 

in paragraph (a). The proposed 

regulation revises the second sentence 

to clarify the contractor’s duty to 

provide notices of employee rights and 

contractor obligations in a manner that 

is accessible and understandable to 

persons with disabilities. It also revises 

the parenthetical at the end of the 

sentence, replacing the outdated 

suggestion of ‘‘hav[ing] the notice read 

to a visually disabled individual’’ as an 

accommodation with the suggestion to 

provide Braille, large print, or other 

versions that allow persons with 

disabilities to read the notice 

themselves. The proposed regulation 

also revises the third sentence of 

paragraph (a) regarding the content of 

the policy statement, replacing the 

inclusion of the ‘‘chief executive 

officer’s attitude on the subject matter’’ 

with ‘‘chief executive officer’s support 

for the affirmative action program.’’ This 

proposed change is made to clarify the 

intent of including a statement from the 

contractor’s CEO in the affirmative 

action policy statement, which is to 

signal to the contractor’s employees that 

support for the affirmative action 

program goes to the very top of the 

contractor’s organization. 

In paragraph (b), the proposed rule 

requires that the contractor must review 

its personnel processes on at least an 

annual basis to ensure that its 

obligations are being met. The current 

rule requires that the contractor review 

these processes ‘‘periodically.’’ This 

standard is vague and subject to 

confusion. Indeed, OFCCP’s efforts to 

enforce this requirement in recent years 

have been complicated by contractors’ 

various, subjective interpretations of 

what constitutes ‘‘periodic’’ review. This 

proposal sets forth a clear, measurable, 

and uniform standard that will be easily 

understood by the contractor and more 

easily enforced by OFCCP. 

Further, the proposed revisions 

mandate certain specific steps that the 

contractor must take, at a minimum, in 

the review of its personnel processes. 

These specific steps are those currently 

set forth in Appendix C to the 

regulation. Appendix C currently 

suggests that the contractor: (1) Identify 

the vacancies and training programs for 

which protected veteran applicants and 

employees were considered; (2), provide 

a statement of reasons explaining the 

circumstances for rejecting protected 

veterans for vacancies and training 

programs and a description of 

considered accommodations; and (3) 

describe the nature and type of 

accommodations for special disabled 

veterans who were selected for hire, 

promotion, or training programs. 

Previously, these steps were 

recommended as an appropriate set of 

procedures. OFCCP’s enforcement 

efforts have found that many contractors 

do not follow these recommended steps, 

and that the documentation contractors 

maintain of the steps that they do take 

are often not conducive to a meaningful 

review by the contractor or OFCCP, 

particularly in the event of employee/ 

applicant complaints. Such a 

meaningful review has always been the 

goal of the requirements in paragraph 

(b), as it ensures that the contractor 

remains aware of and actively engages 

in its overall affirmative action 

obligations toward protected veterans. 

The proactive approach set forth in the 

current Appendix C would provide 

greater transparency between the 

contractor, its applicants/employees, 

and OFCCP as to the reasons for the 

contractor’s personnel actions. 

Requiring that the contractor record the 

specific reasons for their personnel 

actions, and making them available to 

the employee or applicant upon request, 

would also aid them in clearly 

explaining their personnel actions to 

applicants and employees, which could 

subsequently reduce the number of 

complaints filed against contractors. 

Thus, we propose requiring the 

contractor to take the steps outlined 

currently in Appendix C (which are 

incorporated into paragraph (b) in the 

proposed rule), and encourage the 

contractor to undertake any additional 

appropriate procedures to satisfy its 

affirmative action obligations. 

The proposed paragraph (c) clarifies 

that all physical and mental job 

qualification standards must be 

reviewed and updated, as necessary, on 

an annual basis. As with paragraph (b), 

the current rule’s requirement that the 

contractor review these standards 

‘‘periodically’’ is vague and subject to 

confusion. OFCCP has concluded that 

contractors inconsistently interpreted 

what constitutes ‘‘periodic’’ review. The 

proposed change provides a clear, 

measurable, and uniform standard. 

The proposed paragraph (c)(1) adds 

language requiring the contractor to 

document the results of its annual 

review of physical and mental job 

qualification standards. The regulation 

has long required this review to ensure 

that job qualification standards which 

tend to screen out disabled veterans are 

job-related and consistent with business 

necessity. The proposed change would 

merely require that the contractor 

document the review it has already been 

required to perform. It is anticipated 

that this documentation would list the 

physical and mental job qualifications 

for the job openings during a given AAP 

year—which should already be available 

from the contractor’s job postings—and 

provide an explanation as to why each 

requirement is related to the job to 

which it corresponds. Documenting this 

review will ensure that the contractor 

critically analyzes its job requirements 

and proactively eliminates those that are 

not job-related. It will also allow OFCCP 

to conduct audits and investigations in 

a more thorough and efficient manner. 

Paragraph (c)(3) currently provides 

that, as a defense to a claim by an 

individual that certain mental or 

physical qualifications are not jobrelated and consistent with business 

necessity, the contractor may assert that 

the individual poses a ‘‘direct threat’’ to 

the health or safety of the individual or 

others in the workplace. The definition 

of ‘‘direct threat’’ in these regulations 

spells out the criteria that the contractor 

must consider in determining whether a 

‘‘direct threat’’ exists. The proposed 

paragraph (c)(3) would require the 

contractor to contemporaneously create 

a written statement of reasons 

supporting its belief that a direct threat 

exists, tracking the criteria set forth in 

the ‘‘direct threat’’ definition in these 

regulations, and maintain the written 

statement as set forth in the 

recordkeeping requirement in § 60– 

250.80. Once again, this is to ensure that 


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the contractor’s ‘‘direct threat’’ 

analysis—which is already required 

under these regulations, as well as 

regulations to Section 503 of the 

Rehabilitation Act and the Americans 

with Disabilities Act—is well-reasoned 

and available for review by OFCCP. 

Finally, for both the proposed 

documenting requirements in 

paragraphs (c)(1) and (c)(3), the 

proposed regulation would require that 

the contractor treat the created 

documents as confidential medical 

records in accordance with § 60– 

250.23(d). 

Perhaps the most significant 

substantive changes in the proposed 

rule address the scope of the 

contractor’s recruitment efforts and the 

dissemination of its affirmative action 

policies described in paragraphs (f) and 

(g) of this section. While these two 

paragraphs generally require that the 

contractor engage in recruitment and 

disseminate its policies, the current rule 

recommends rather than requires the 

specific methods for carrying out these 

obligations. 

The current paragraph (f) suggests a 

number of outreach and recruitment 

efforts that the contractor can undertake 

in order to increase the employment 

opportunities for protected veterans. See 

41 CFR 60–250.44(f)(1). The proposed 

paragraph (f) requires that the contractor 

engage in a minimum number of 

outreach and recruitment efforts as 

described in proposed paragraph (f)(1). 

The proposed paragraph (f) also 

includes a list of additional outreach 

and recruitment efforts that are 

suggested (proposed paragraph (f)(2)), a 

new requirement that the contractor 

conduct self-assessments of their 

outreach and recruitment efforts 

(proposed paragraph (f)(3)), and a 

clarification of the contractor’s 

recordkeeping obligation with regard to 

its outreach and recruitment efforts 

(proposed paragraph (f)(4)). 

In the proposed paragraph (f)(1), the 

contractor would be required to engage 

in three outreach and recruitment 

efforts. First, the contractor would be 

required to enter into linkage 

agreements and establish ongoing 

relationships with the Local Veterans’ 

Employment Representative in the local 

employment service office nearest the 

contractor’s establishment. The statute 

already requires contractors and 

subcontractors to send their job listings 

to the Local Veterans’ Employment 

Representative in the local or state 

employment service office for listing 

and priority referral of protected 

veterans. The Local Veterans’ 

Employment Representative is an 

existing government resource provided 

for veterans to help them find 

employment. 

Second, the contractor would be 

required to enter into a linkage 

agreement with at least one of several 

other listed organizations and agencies 

for purposes of recruitment and 

developing training opportunities. The 

listed organizations and agencies are 

those that are listed in the current 

paragraph (f)(1), with one addition: The 

Department of Defense Transition 

Assistance Program (TAP), or any 

subsequent program that replaces TAP. 

This program is administered in part by 

the Department of Labor’s Veterans’ 

Employment and Training Service 

(VETS) in Family Services Offices or 

similar offices at military bases. (See 

http://www.dol.gov/vets/programs/tap/

tap_fs.htm) According to the 

Department of Defense, there are 249 

TAP offices in installations around the 

United States, and another 16 TAP 

offices located in installations abroad. 

The TAP was designed to ‘‘smooth the 

transition of military personnel and 

family members leaving active duty.’’ 

The TAP includes employment 

workshops with the Department of 

Labor, and offers individualized 

employment assistance and training. It 

is currently required for all those 

serving in the Marine Corps, and is 

generally encouraged and supported by 

the other branches of the military. 

Accordingly, it provides an excellent 

existing source for identifying qualified 

protected veterans. TAP is a validated 

multi-government agency program that 

assists separating veterans in finding 

employment, from resume writing to 

interview techniques to dressing for 

success. OFCCP is aware, however, that 

not all contractors are located near a 

military base or similar facility which 

provides TAP; therefore, a contractor 

may select another organization or 

agency from the list that is more 

conducive to its recruiting efforts. 

Third, paragraph (f)(1) would also 

require that the contractor consult the 

Employer Resources section of the 

National Resource Directory, a 

partnership with an online collaboration 

(http://www.nationalresource

directory.gov/employment/job_services_

and_employment_resources) among the 

Departments of Labor, Defense, and 

Veterans Affairs. New contractors and 

subcontractors often inquire about how 

they can find qualified protected 

veterans to comply with their AAP 

obligations. The National Resource 

Directory is a leading government Web 

site that provides prospective employers 

of veterans access to veterans’ service 

organizations, existing job banks of 

veterans seeking employment, and other 

resources at the national, state and local 

levels. The NPRM gives contractors and 

subcontractors the flexibility to select 

any organization on the National 

Resource Directory for outreach and 

recruit purposes. Since this Web site is 

a great nationwide resource, any 

contractor would likely find it useful in 

fulfilling its affirmative action 

obligations, such as recruiting veterans. 

The contractor would be required to 

establish a linkage agreement with at 

least one of the many veterans’ service 

organizations listed on the site 

(excluding organizations described in 

the previous paragraph) to facilitate 

referral of qualified protected veterans, 

as well as other related advice and 

technical assistance. We believe that 

these first two efforts that the proposed 

rule requires would assist the contractor 

in establishing a baseline level of 

contact with veteran and employmentrelated organizations, while providing 

the contractor with the flexibility to 

establish linkage agreements with 

organizations that are most tailored to 

the contractor’s hiring needs. Finally, 

the proposed paragraph (f)(1) would 

also require that the contractor send 

written notification of company policy 

related to affirmative action efforts to its 

subcontractors, including 

subcontracting vendors and suppliers, 

in order to request appropriate action on 

their parts and to publicize the 

contractor’s commitment to affirmative 

action on behalf of protected veterans. 

While the proposed regulations would 

not require that the contractor send 

written notification to vendors and 

suppliers who are not subcontractors as 

defined by these regulations, such 

disclosure remains an encouraged 

activity, just as it is under the current 

regulation. See 41 CFR 60–250.44(f)(6). 

We believe that the required linkage 

agreements we propose in paragraph 

(f)(1) will greatly facilitate the 

contractor’s efforts to attract qualified 

protected veteran applicants. We 

encourage comments from stakeholders 

regarding this proposal, particularly if 

stakeholders have information on 

recruitment sources not included in this 

proposal that might increase 

employment of protected veterans. 

In paragraph (f)(2) of the proposed 

rule, we list a number of outreach and 

recruitment efforts that are suggested 

measures for increasing employment 

opportunities for protected veterans. 

The efforts listed in paragraph (f)(2) are 

largely identical to the efforts that are 

suggested in paragraphs (f)(2) through 

(f)(5) and (f)(7) through (f)(8) of the 

current rule. This includes: (1) Holding 

briefing sessions with representatives 

from recruiting resources; (2) 


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incorporating recruitment efforts for 

protected veterans at educational 

institutions; (3) considering applicants 

who are known protected veterans for 

all available positions when the position 

applied for is unavailable; and (4) any 

other positive steps the contractor 

believes are necessary to attract 

qualified protected veterans, including 

contacts with any local veteran-related 

organizations. 

Paragraph (f)(3) of the proposed rule 

would require the contractor, on an 

annual basis, to review the outreach and 

recruitment efforts it has undertaken 

over the previous twelve months and 

evaluate their effectiveness in 

identifying and recruiting qualified 

protected veterans, and document its 

review. Contractors that do not 

proactively monitor their outreach and 

recruitment efforts often lose 

opportunities to consider and hire 

qualified protected veterans for 

employment. This requirement will 

allow the contractor to look at its 

measurable accomplishments and 

reconsider unproductive methods. We 

believe requiring this on an annual basis 

strikes the proper balance between 

ensuring that adjustments to 

recruitment efforts are made on a timely 

basis if needed, while also ensuring that 

the contractor has enough data on 

existing recruitment efforts to be able to 

determine if adjustments need to be 

made. 

We recognize that the ‘‘effectiveness’’ 

of an outreach or recruitment effort is 

not easily defined, and may include a 

number of factors that are unique to a 

particular contractor establishment. 

Generally speaking, a review of the 

efficacy of a contractor’s efforts should 

include the number of protected veteran 

candidates each effort identifies. 

Recognizing that other unique and 

intangible characteristics may 

contribute to the assessment of the 

‘‘effectiveness’’ of a given effort, the 

proposed regulation allows the 

contractor some flexibility in making 

this assessment. However, the proposed 

regulation requires that the contractor 

consider the numbers of protected 

veteran referrals, applicants, and hires 

for the current years and two previous 

years as criteria in evaluating its efforts, 

and document all other criteria that it 

uses to assess the effectiveness of its 

efforts, so that OFCCP compliance 

officers are able to understand clearly 

the rationale behind the contractor’s 

self-assessment. The contractor’s 

conclusion as to the effectiveness of its 

outreach must be reasonable as 

determined by OFCCP in light of these 

regulations. The primary indicator of 

effectiveness is whether qualified 

veterans have been hired. Further, 

should the contractor determine that its 

efforts were not effective, the proposed 

rule requires the contractor to identify 

and implement one or more of the 

alternative efforts listed in proposed 

paragraphs (f)(1) and (f)(2) in order to 

fulfill its obligations. The general 

purpose of this self-assessment is to 

ensure that the contractor think 

critically about its recruitment and 

outreach efforts, identify and ascertain 

successful recruiting efforts, and modify 

its efforts to ensure that its obligations 

are being met. 

Paragraph (f)(4) of the proposed rule 

would require that the contractor 

document its linkage agreements and 

the activities it undertakes in order to 

comply with paragraph (f), and retain 

these documents for a period of five (5) 

years. This requirement will enable the 

contractor and OFCCP to more 

effectively review recruitment and 

outreach efforts undertaken to ensure 

that the affirmative action obligations of 

paragraph (f) are satisfied. 

Paragraph (g) of this section requires 

that the contractor develop internal 

procedures to communicate to its 

employees its obligation to engage in 

affirmative action efforts. The current 

paragraph (g)(2) contains several 

suggested methods by which the 

contractor may accomplish this. The 

proposed rule would mandate the 

following practices: (1) Include its 

affirmative action policy in its policy 

manual; (2) inform all applicants and 

employees of its affirmative action 

obligations; (3) conduct meetings with 

executive, management, and 

supervisory personnel to explain the 

intent of the policy and responsibility 

for its implementation; and (4) discuss 

the policy in orientation and 

management training programs. In 

addition, if the contractor is party to a 

collective bargaining agreement, then 

the proposed rule would require the 

contractor to meet with union officials 

and representatives to inform them 

about the policy and seek their 

cooperation. Other suggested elements 

in the current paragraph (g)(2) remain in 

the proposed rule at newly created 

paragraph (g)(3) as suggested additional 

dissemination efforts the contractor can 

make. This includes suggesting that the 

contractor use company newspapers, 

magazines, annual reports, handbooks, 

or other media to publicize its 

affirmative action obligations and 

feature protected veterans and their 

accomplishments. See current 

regulation at 41 CFR 60– 

250.44(g)(2)(iii), 60–250.44(g)(2)(vii); 

60–250.44(g)(2)(viii). 

As for the requirement to inform all 

applicants and employees of its 

affirmative action obligations (item (2) 

in the preceding paragraph), the 

proposed regulation would require that 

the contractor hold meetings with its 

employees at least once per year to 

discuss the contractor’s affirmative 

action policies and to explain contractor 

and individual employee 

responsibilities under these policies. 

These could be traditional in-person 

meetings, or meetings facilitated by 

technology such as webinars or 

videoconferencing. It would also require 

that the contractor describe individual 

employee opportunities for 

advancement in furtherance of the 

contractor’s affirmative action plan. 

Frequent establishment-wide training 

on affirmative action issues will 

facilitate a greater understanding of the 

purpose of the affirmative action plan 

among employees. This training will 

also enhance the visibility and 

importance of affirmative action to the 

recruitment, hiring, and advancement of 

protected veterans. Finally, a newly 

proposed paragraph (g)(4) would require 

the contractor to document its activities 

in order to comply with paragraph (g), 

and retain these documents as records 

subject to the recordkeeping 

requirements of § 60–250.80. This will 

allow for a more effective review by the 

contractor and OFCCP to ensure that the 

affirmative action obligations of 

paragraph (g) are being met. 

Paragraph (h) of this section details 

the contractor’s responsibilities in 

designing and implementing an audit 

and reporting system for its affirmative 

action program, including the specific 

computations and comparisons that are 

part of the audit. The proposed 

regulations add a new paragraph 

(h)(1)(vi) requiring the contractor to 

document the actions taken to comply 

with paragraphs (h)(1)(i)–(v), and 

maintain such documents as records 

subject to the recordkeeping 

requirements of § 60–250.80. Again, this 

will allow for a more effective review by 

the contractor and OFCCP to ensure the 

affirmative action obligations of this 

paragraph are being met. 

The only substantive proposed change 

in paragraph (i), requires that the 

identity of the officials responsible for a 

contractor’s affirmative action activities 

must appear on all internal and external 

communications regarding the 

contractor’s affirmative action program. 

In the current regulation, this disclosure 

is only suggested. Requiring this 

disclosure will increase transparency, 

making it clear to applicants, 

employees, OFCCP, and other interested 

parties which individual(s) are 


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responsible for the implementation of 

the contractor’s affirmative action 

program. 

Paragraph (j) requires that the 

contractor train those individuals who 

implement the personnel decisions 

pursuant to its affirmative action 

program. The proposed regulation 

specifies the topics that shall be 

included in the contractor’s training: 

The benefits of employing protected 

veterans; appropriate sensitivity toward 

protected veteran recruits, applicants 

and employees; and the legal 

responsibilities of the contractor and its 

agents regarding protected veterans 

generally and special disabled veterans 

specifically, such as reasonable 

accommodation for qualified disabled 

veterans and the related rights and 

responsibilities of the contractor and 

protected veterans. Training on these 

issues will facilitate a greater 

understanding of the purpose of the 

affirmative action plan among decision 

makers for the contractor, and will 

enhance the visibility and importance of 

affirmative action to the recruitment, 

hiring, and advancement of protected 

veterans. The proposed regulation 

would also require that the contractor 

record which of its personnel receive 

this training, when they receive it, and 

the person(s) who administer(s) the 

training, and maintain these records, 

along with all written or electronic 

training materials used, in accordance 

with the recordkeeping requirements of 

§ 60–250.80. Again, this will allow for a 

more effective review by the contractor 

and OFCCP to ensure the affirmative 

action obligations of this paragraph are 

being met. 

The proposed regulation adds a new 

paragraph (k) requiring that the 

contractor maintain several quantitative 

measurements and comparisons 

regarding protected veterans who have 

been referred by state employment 

services, have applied for positions with 

the contractor, and/or have been hired 

by the contractor. The impetus behind 

this new section is that, as stated in the 

discussion of § 60–250.44(a), no 

structured data regarding the number of 

protected veterans who are referred for 

or apply for jobs with Federal 

contractors is currently maintained. 

This absence of data makes it nearly 

impossible for the contractor and 

OFCCP to perform even rudimentary 

evaluations of the availability of 

protected veterans in the workforce, or 

to make any quantitative assessments of 

how effective contractor outreach and 

recruitment efforts have been in 

attracting protected veteran candidates. 

The proposed regulations provide for 

the collection of referral data (see § 60– 

250.5, paragraph 5 of the EO clause), as 

well as applicant data (see § 60– 

250.42(a)). Hiring data is already 

maintained by the contractor in its 

VETS–100 forms, a requirement which 

is carried over into this proposal. 

Accordingly, paragraph (k) requires that 

the contractor document and maintain 

the following information: (1) For 

referral data, the total number of 

referrals, the number of priority referrals 

of protected veterans, and the ‘‘referral 

ratio’’ of referred protected veterans to 

total referrals; (2) for applicant data, the 

total number of applicants for 

employment, the number of applicants 

who are known protected veterans, and 

the ‘‘applicant ratio’’ of protected 

veteran applicants to total applicants; 

(3) for hiring data, the total number of 

people hired, the number of protected 

veterans hired, and the ‘‘hiring ratio’’ of 

protected veteran hires to total hires; 

and (4) the total number of job openings, 

the number of jobs that are filled, and 

the ‘‘job fill ratio’’ of job openings to job 

openings filled. The proposed 

regulation requires that the contractor 

must document these measurements on 

an annual basis, and maintain records of 

them for five (5) years. These basic 

measurements will provide the 

contractor and OFCCP with important 

information that does not currently 

exist. This will aid the contractor in 

evaluating and tailoring its recruitment 

and outreach efforts and in establishing 

hiring benchmarks as set forth in the 

discussion of the proposed § 60–250.45, 

infra. 

Finally, the proposed regulation 

replaces the phrase ‘‘special disabled 

veteran(s), veteran(s) of the Vietnam era, 

recently separated veteran(s), or other 

protected veteran(s),’’ with the term 

‘‘protected veteran’’ in paragraphs (a), 

(a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), 

(f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), 

(g)(2)(vii), and (h)(1)(iv), for the reasons 

stated in the discussion of § 60–250.2. 

The proposed regulation also replaces 

the terms ‘‘Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974’’ or 

‘‘VEVRAA’’ with the term ‘‘Section 4212’’ 

throughout this section, for the reasons 

stated in the discussion of § 60–250.1. 

Section 60–250.45 ContractorEstablished Benchmarks for Hiring 

The proposed regulation would 

require for the first time that the 

contractor establish annual hiring 

benchmarks, expressed as the 

percentage of total hires who are 

protected veterans that the contractor 

seeks to hire in the following year. As 

stated in paragraph (a) of the proposed 

rule and set forth more fully below, 

these hiring benchmarks would be 

established by the contractor using 

existing data on veteran availability, 

while also allowing the contractor to 

take into account other factors unique to 

its establishment that would tend to 

affect the availability determination. 

While the Bureau of Labor Statistics 

(BLS) and Census Bureau (Census) do 

not tabulate data pertaining to the 

specific classifications of protected 

veterans under part 60–250, there are 

other existing data sources that are 

instructive. For instance, BLS tabulates 

statewide data on the number of 

veterans in the civilian labor force and 

the unemployment rate of veterans in 

the labor force, and national data on the 

number of veterans with a servicerelated disability. The Department’s 

Veterans Employment and Training 

Service collects statewide data over a 

rolling, four quarter period of 

individuals who ‘‘participated’’ in the 

state employment services. The 

breakdown of this data includes the 

number of overall veterans, the number 

of overall veterans who are identified as 

being unemployed, and the number of 

veterans in some, although not all, of 

the specific categories of veterans 

protected by part 60–250. 

Accordingly, the proposed rule would 

require that the contractor consult a 

number of different sources of 

information, which will be made easily 

available to the contractor, in 

establishing hiring benchmarks. As set 

forth in the proposed paragraph (b), 

these sources would include: (1) The 

percentage of veterans in the civilian 

labor force, tabulated by BLS and which 

will be published on OFCCP’s Web site; 

(2) the raw number of veterans who 

were participants in the state 

employment service in the State where 

the contractor’s establishment is 

located, which will also be published on 

OFCCP’s Web site; (3) the referral ratio, 

applicant ratio, and hiring ratios as 

expressed in the proposed § 60– 

250.44(k); (4) the contractor’s recent 

assessments of the effectiveness of its 

external outreach and recruitment 

efforts, as expressed in the proposed 

§ 60–250.44(f)(3); and (5) any other 

factors, including but not limited to the 

nature of the contractor’s job openings 

and/or its location, which would tend to 

affect the availability of qualified 

protected veterans. The contractor 

would be required to consider and 

document each of these factors, see 

proposed paragraph (c) of this section, 

but would be given discretion to weigh 

the various factors in a manner that is 

reasonable in light of the contractor’s 

unique circumstances. We believe that 

this proposal creates a practical and 

workable mechanism for establishing 


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benchmarks that will allow the 

contractor to measure its success in 

recruiting and employing protected 

veterans. However, we seek input from 

stakeholders on this proposal and any 

additional measures that would make 

these benchmarks more meaningful, as 

well as any other measures that would 

otherwise increase employment 

opportunities for veterans. 

Subpart D—General Enforcement and 

Complaint Procedures 

Section 60–250.60 Compliance 

Evaluations 

This section details the form and 

scope of the compliance evaluations of 

the contractor’s affirmative action 

programs conducted by OFCCP. The 

proposed rule contains several changes 

to this section. 

First, the proposal adds a sentence to 

paragraph (a)(1)(i) regarding the 

temporal scope of desk audits 

performed by OFCCP. This language 

merely clarifies OFCCP’s long-standing 

policy that, in order to fully investigate 

and analyze the scope of potential 

violations, OFCCP may need to examine 

information after the date of the 

scheduling letter in order to determine, 

for instance, if violations are continuing 

or have been remedied. The language 

does not represent a change in policy or 

new contractor obligations. 

Second, the current paragraph (a)(2) 

relating to the off-site review of records 

incorrectly refers to the ‘‘requirements of 

the Executive Order and its regulations;’’ 

the proposed rule corrects this to read 

the ‘‘requirements of Section 4212 and 

its regulations.’’ 

Third, the proposed rule contains a 

change to the nature of document 

production under paragraph (a)(3). This 

paragraph, which specifies a 

‘‘compliance check’’ as an investigative 

procedure OFCCP can use to monitor a 

contractor’s recordkeeping, currently 

states that the contractor may provide 

relevant documents either on-site or offsite ‘‘at the contractor’s option.’’ The 

proposed regulation eliminates this 

quoted clause and provides that OFCCP 

may request that the documents to be 

provided either on-site or off-site. 

Fourth, the proposed rule contains a 

minor change to the scope of ‘‘focused 

reviews’’ as set forth in paragraph (a)(4). 

Focused reviews allow OFCCP to target 

one or more components of a 

contractor’s organization or employment 

practices, rather than conducting a more 

comprehensive compliance review of an 

entire organization. Currently, the 

regulations provide that these focused 

reviews are ‘‘on-site,’’ meaning they 

must take place at the contractor’s place 

of business. The increased use of 

electronic records that are easily 

accessible from multiple locations 

affords compliance officers greater 

flexibility in conducting focused 

reviews. Therefore, we propose to delete 

the word ‘‘on-site’’ from this section, 

which will allow compliance officers to 

conduct reviews of relevant materials at 

any appropriate location. 

Fifth, the proposed rule contains a 

new paragraph (d) which details a new 

procedure for pre-award compliance 

evaluation under Section 4212. This 

proposed rule is based on the pre-award 

compliance procedure contained in the 

Executive Order regulations (see 41 CFR 

60–1.20(d)). 

Finally, the proposed regulation 

replaces the phrase ‘‘special disabled 

veteran(s), veteran(s) of the Vietnam era, 

recently separated veteran(s), or other 

protected veteran(s),’’ with the term 

‘‘protected veteran’’ in paragraph (a) for 

the reasons stated in the discussion of 

§ 60–250.2. 

Section 60–250.61 Complaint 

Procedures 

This section outlines the manner in 

which applicants or employees who are 

protected veterans may file complaints 

alleging violations of Section 4212 or its 

regulations. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ with the 

term ‘‘Director’’ in paragraphs (e)(1), 

(e)(2), and (e)(3), for the reasons set forth 

in the discussion of § 60–250.2. The 

proposed regulation also replaces the 

term ‘‘state employment security 

agency’’ in paragraph (a) with the term 

‘‘employment service delivery system,’’ 

for the reasons set forth in the 

discussion of § 60–250.5. Finally, the 

proposed regulation replaces the phrase 

‘‘special disabled veteran(s), veteran of 

the Vietnam era, recently separated 

veteran(s), or other protected veteran(s)’’ 

with the term ‘‘protected veteran’’ in 

paragraph (b)(iii), for the reasons stated 

in the discussion of § 60–250.2. 

Section 60–250.64 Show Cause Notice 

This section describes the manner in 

which OFCCP notifies a contractor 

when it believes the contractor has 

violated Section 4212 or its regulations. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in this 

section with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–250.2. 

Section 60–250.65 Enforcement 

Proceedings 

This section describes the procedures 

for formal enforcement proceedings 

against a contractor in the event OFCCP 

finds a violation of Section 4212 or its 

regulations that has not been corrected. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in 

paragraph (a)(2) of this section with the 

term ‘‘Director,’’ for the reasons set forth 

in the discussion of § 60–250.2. 

Section 60–250.66 Sanctions and 

Penalties 

This section discusses the types of 

sanctions and penalties that may be 

assessed against a contractor if it is 

found to have violated Section 4212 or 

its regulations. The proposed rule 

replaces the term ‘‘Deputy Assistant 

Secretary’’ in paragraph (a) of this 

section with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–250.2. 

Section 60–250.67 Notification of 

Agencies 

This section provides that agency 

heads will be notified if any contractors 

are debarred. The proposed rule 

replaces the term ‘‘Deputy Assistant 

Secretary’’ with the term ‘‘Director,’’ for 

the reasons set forth in the discussion of 

§ 60–250.2. 

Section 60–250.68 Reinstatement of 

Ineligible Contractors 

This section outlines the process by 

which a contractor that has been 

debarred may apply for reinstatement. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in 

paragraphs (a) and (b) of this section 

with the term ‘‘Director,’’ for the reasons 

set forth in the discussion of § 60–250.2. 

Section 60–250.69 Intimidation and 

Interference 

This section forbids the contractor 

from retaliating against individuals who 

have engaged in or may engage in 

certain specified protected activities, 

and describes the contractor’s 

affirmative obligations in preventing 

retaliation. The proposed rule replaces 

the term ‘‘Deputy Assistant Secretary’’ in 

paragraph (b) of this section with the 

term ‘‘Director,’’ for the reasons set forth 

in the discussion of § 60–250.2. The 

proposed rule also replaces the phrase 

‘‘special disabled veteran(s), veterans of 

the Vietnam era, recently separated 

veteran(s), or other protected 

veteran(s),’’ with the term ‘‘protected 

veteran’’ in paragraphs (a)(2) and (a)(3) 

for the reasons stated in the discussion 

of § 60–250.2. 

Subpart E—Ancillary Matters 

Section 60–250.80 Recordkeeping 

This section describes the 

recordkeeping requirements that apply 

to the contractor under Section 4212, 


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and the consequences for the failure to 

preserve records in accordance with 

these requirements. The proposed 

regulation adds a sentence at the end of 

paragraph (a) of this section clarifying 

that the newly proposed recordkeeping 

requirements set forth in §§ 250.44(f)(4) 

(linkage agreements and other outreach 

and recruiting efforts), 250.44(k) 

(collection of referral, applicant and hire 

data), 250.45(c) (criteria and 

conclusions regarding contractor 

established hiring benchmarks), and 

Paragraph 5 of the equal opportunity 

clause in § 60–250.5(a) (referral data) 

must be maintained for five (5) years, for 

the reasons set forth in the discussion of 

those sections, supra. 

Section 60–250.81 Access to Records 

This section describes a contractor’s 

obligations to permit access to OFCCP 

when conducting compliance 

evaluations and complaint 

investigations. The proposed rule adds 

some language clarifying the 

contractor’s obligations, particularly in 

light of the increased use of 

electronically stored records. First, the 

proposed rule adds a sentence requiring 

the contractor to provide off-site access 

to materials if requested by OFCCP 

investigators or officials as part of an 

evaluation or investigation. This change 

reflects the increased use of electronic 

records from multiple locations, and 

accordingly gives OFCCP greater 

flexibility in conducting its evaluations 

and investigations. Second, the 

proposed rule requires that the 

contractor specify all formats (including 

specific electronic formats) in which its 

records are available, and produce 

records to OFCCP in the format selected 

by OFCCP. This change is proposed in 

light of numerous instances in which 

OFCCP has conducted extensive review 

and analysis of a contractor’s records 

only to find subsequently that the 

records were available in more readily 

accessible formats. Specifying the 

variety of available formats upon 

request, and providing records to 

OFCCP in the format it selects, will 

facilitate a more efficient investigation 

process. 

Section 60–250.83 Rulings and 

Interpretations 

This section establishes that rulings 

and interpretations of Section 4212 will 

be made by the Director of OFCCP. The 

proposed rule replaces the term ‘‘Deputy 

Assistant Secretary’’ with the term 

‘‘Director,’’ for the reasons set forth in 

the discussion of § 60–250.2. 

Section 60–250.84 Responsibilities of 

Local Employment Service Offices 

This section outlines the 

responsibilities of local employment 

service offices, including the obligation 

to give priority referral to protected 

veterans for jobs listed by a Federal 

contractor. The proposed rule replaces 

the phrase ‘‘special disabled veteran(s), 

veteran(s) of the Vietnam era, recently 

separated veteran(s), or other protected 

veteran(s),’’ with the term ‘‘protected 

veteran’’ for the reasons stated in the 

discussion of § 60–250.2. 

Appendix A to Part 60–250—Guidelines 

on a Contractor’s Duty To Provide 

Reasonable Accommodation 

The proposed rule includes four 

changes to Appendix A which would 

mandate activities that previously were 

only suggested. These changes primarily 

reflect proposed revisions to §§ 60– 

250.2 and 60–250.42(d), supra, that 

would alter the contractor’s 

responsibilities. 

First, in the third sentence of 

paragraph 2, we propose changing the 

language to reflect the change to § 60– 

250.42(d) requiring a contractor to seek 

the advice of special disabled veterans 

in providing reasonable 

accommodation. Second, in the last 

sentence of Paragraph 4, the proposed 

rule is changed to require that special 

disabled veterans, in the event an 

accommodation would constitute an 

undue hardship for the contractor, be 

given the option of providing the 

accommodation or paying the portion of 

the cost that constitutes the undue 

hardship for the contractor. Third, in 

the fourth sentence of paragraph 5, we 

propose changing the language to 

require a contractor to seek the advice 

of special disabled veterans in providing 

reasonable accommodation. Finally, in 

the last sentence of paragraph 9, the 

proposed rule is changed to require that 

a contractor must consider the totality of 

the circumstances when determining 

what constitutes a ‘‘reasonable amount 

of time’’ in the context of available 

vacant positions. 

Additionally, the proposed rule 

changes the reference to ‘‘§ 60–250.2(o)’’ 

in paragraph 1 of Appendix A to ‘‘§ 60– 

250.2(r),’’ and changes the references to 

‘‘§ 60–250.2(t)’’ in paragraphs 5 and 8 of 

Appendix A to ‘‘§ 60–250.2(s).’’ This is 

to reflect the revised alphabetical 

structure of the definitions section in 

the proposed rule, as discussed in § 60– 

250.2, above. The proposed regulation 

also replaces the term ‘‘VEVRAA’’ with 

‘‘Section 4212’’ for the reasons set forth 

in the discussion of § 60–250.1. 

Appendix B to Part 60–250—Sample 

Invitation to Self-Identify 

The proposed rule amends Appendix 

B consistent with the proposed changes 

to the self-identification regulation 

found at § 60–250.42. The first 

paragraph is amended simply to include 

detailed definitions of the four types of 

classifications of protected veterans. 

These definitions are to be included in 

a contractor’s invitation to self-identify 

either at the pre-offer (proposed § 60– 

250.42(a)) or post-offer (proposed § 60– 

250.42(b)). We propose this change to 

clarify for the contractor and for 

applicants exactly which categories of 

veterans are protected by part 60–250. 

The second paragraph of the 

Appendix contains the suggested model 

language for the self-identification of 

protected veterans. The current 

language has models to be used if they 

are being distributed to non-special 

disabled protected veterans exclusively, 

special disabled veterans exclusively, or 

to all protected veterans. In keeping 

with the proposed changes in § 60– 

250.42, we propose amending the 

second paragraph to include two 

models: one that will be given to all 

applicants at the pre-offer stage, and one 

that will be given at the post-offer stage 

to all individuals who have been offered 

employment by the contractor. For the 

pre-offer stage, the invitation refers to 

the definitions for each of the 

classifications of protected veterans and 

invites applicants to identify if they 

belong to any one (or more) of them 

generally. It does not provide for 

individuals to self-identify as a 

particular type of protected veteran (e.g., 

a qualified special disabled veteran). For 

the post-offer stage, the invitation again 

refers to the definitions for each of the 

classifications of protected veteran and 

then invites applicants to indicate to 

which specific classifications of 

protected veteran they belong. 

For both the pre-offer and post-offer 

invitations, we have proposed new 

language explaining to applicants that 

the information is being requested in 

order to measure the contractor’s 

outreach and recruitment efforts 

required under part 60–250. This 

replaces the current language which 

only inquires whether individuals 

would like to be included under the 

contractor’s affirmative action program. 

The post-offer invitation in Paragraph 2 

also incorporates the language in the 

current paragraph 7 of the Appendix, 

which requests that special disabled 

veterans describe possible workplace 

accommodations, with the exception of 

replacing ‘‘elimination of certain duties 

relating to the job’’ with ‘‘changes in the 


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1However, the vast majority of individuals who 

fell under the ‘‘Vietnam Era veteran’’ category of part 

60–250 would fall under one of the categories of 

protected veterans in part 60–300. 

way the job is customarily performed.’’ 

We propose this change merely to 

clarify the nature of the interactive 

process, and to eliminate any confusion 

that might exist regarding the existing 

language that ‘‘elimination of certain 

duties’’ could be read to include 

eliminating essential functions of the 

job. It is a change in verbiage only, and 

does not alter the substantive 

obligations of the contractor or 

applicant in the interactive process. 

Finally, the proposed regulation also 

replaces the term ‘‘VEVRAA’’ with 

‘‘Section 4212’’ for the reasons set forth 

in the discussion of § 60–250.1. 

Appendix C to Part 60–250—Review of 

Personnel Processes 

The proposed rule deletes Appendix 

C and moves its content, with some 

edits, to § 60–250.44(b). See the Sectionby-Section Analysis of § 60–250.44, 

supra, for further discussion. 

41 CFR Part 60–300 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

Section 60–300.1 Purpose, 

Applicability and Construction 

Paragraph (a) of the current rule sets 

forth the scope of Section 4212 and the 

purpose of its implementing regulations. 

We propose a few minor changes to this 

section. First, we propose deleting the 

reference to the ‘‘Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974’’ or 

‘‘VEVRAA,’’ and replacing it, in this 

section and throughout the regulation, 

with ‘‘Section 4212’’. Referring to the 

operative law as ‘‘VEVRAA’’ is not 

entirely accurate, as Section 4212, 

where VEVRAA was initially codified, 

has been amended several times since 

VEVRAA was passed—most recently by 

the Jobs for Veterans Act of 2002 (JVA), 

which amended the dollar amount for 

contract coverage and the categories of 

protected veterans, and subsequently 

led to the promulgation of the 

regulations found at part 60–300. One of 

the specific amendments made by the 

JVA was that ‘‘Vietnam Era veterans’’ 

was no longer a distinct protected 

category.1 Therefore, there is concern 

that continued use of the term 

‘‘VEVRAA’’ perpetuates confusion about 

which classifications of veterans are 

covered under the existing law. 

Referring to the law as ‘‘Section 4212’’ 

clarifies that we are referring to the law 

as amended. This is more accurate than 

‘‘VEVRAA’’ and should alleviate any 

further confusion. 

Second, paragraph (a) discusses the 

contractor’s affirmative action 

obligations, but does not discuss 

another primary element of the 

regulations: The prohibition of 

discrimination against veterans 

protected under Section 4212. 

Accordingly, the proposed regulation 

adds language to the first sentence of 

paragraph (a) to include this important 

element. 

Additionally, the proposed rule 

makes two minor language changes in 

order to comport with some of the 

newly proposed definitions in § 60– 

300.2. First, the term ‘‘other protected 

veterans’’ is amended to read ‘‘active 

duty wartime or campaign badge 

veterans,’’ for the reasons detailed in the 

Section-by-Section Analysis of § 60– 

300.2. Second, all references to ‘‘covered 

veterans’’ is amended to read ‘‘protected 

veterans,’’ due to the inclusion of a 

definition for ‘‘protected veteran’’ in the 

proposed § 60–300.2. 

Section 60–300.2 Definitions 

The proposed rule incorporates the 

vast majority of the existing definitions 

contained in existing § 60–300.2 

without change. However, OFCCP 

proposes some changes to the substance 

and structure of this section, as set forth 

below. 

With regard to the structure of this 

section, the current rule lists the 

definitions in order of subject matter. 

However, for those who are unfamiliar 

with the regulations, this organizational 

structure makes it difficult to locate 

specific terms within this section. The 

proposed rule reorders the defined 

terms in alphabetical order, and then 

assigns each term a lettered 

subparagraph heading. This modified 

structure is proposed for ease of 

reference, and to facilitate citation to 

specific definitions. However, because 

of this reordering, the citation to 

specific terms may be different in the 

proposed rule than it is currently. For 

instance, the term ‘‘contract,’’ which is 

§ 60–300.2(h) in the current regulations, 

is § 60–300.2(e) in the proposed 

regulation. 

With regard to substantive changes, 

the proposed rule first clarifies the 

definitions pertaining to the 

classifications of veterans who are 

protected under part 60–300. The Jobs 

for Veterans Act (JVA), which amended 

Section 4212 in 2002, defined the 

classes of veterans protected by part 60– 

300. The current classifications of 

protected veterans under the JVA, 

reflected in the part 60–300 regulation, 

are as follows: (1) Disabled veterans; (2) 

veterans who served on active duty in 

the Armed Forces during a war or in a 

campaign or expedition for which a 

campaign badge has been authorized; (3) 

veterans who, while serving on active 

duty in the Armed Forces, participated 

in a United States military operation for 

which an Armed Forces service medal 

was awarded pursuant to Executive 

Order No. 12985 (known generally as 

‘‘Armed Forces service medal veteran’’); 

and (4) recently separated veterans. 

Currently, § 60–300.2 includes specific 

definitions for ‘‘disabled veterans,’’ 

‘‘recently separated veterans,’’ and 

‘‘Armed Forces service medal veterans.’’ 

See 41 CFR 60–300.2(n), (q), (r). It does 

not contain a specific definition for 

‘‘veterans who served on active duty in 

the Armed Forces during a war or in a 

campaign or expedition for which a 

campaign badge has been authorized.’’ 

Instead, this classification is included 

within the current ‘‘other protected 

veteran’’ definition. See 41 CFR 60– 

300.2(p). This anomaly has caused 

significant confusion, as many 

individuals who are unfamiliar with the 

regulations believe that the ‘‘other 

protected veteran’’ category is a ‘‘catchall’’ that includes all veterans. To 

address this issue, the proposed rule 

replaces the ‘‘other protected veteran’’ 

definition that is contained in the 

current regulation with the more precise 

classification language ‘‘active duty 

wartime or campaign badge veteran’’ 

that appears in the statute. This 

replacement will not change the scope 

of coverage. Instead, individuals 

currently covered under the ‘‘other 

protected veteran’’ classification as 

defined in the current rule will still be 

covered, but will fall under the more 

accurate ‘‘active duty wartime or 

campaign badge veteran’’ classification. 

It should be noted that this proposed 

rule does not revise the VETS–100A 

form, which is administered by the 

Department’s Veterans’ Employment 

and Training Service (VETS) and 

requires the contractor to tabulate the 

number of employees and new hires in 

each of the component categories of 

protected veterans under Section 4212. 

The VETS–100A form currently 

maintains the use of the ‘‘other protected 

veteran’’ classification. After the final 

rule is published, OFCCP will work 

with VETS to conform the VETS–100 

form to the new Section 4212 

regulations. The public will be given an 

opportunity to comment on these 

revisions, which must be approved by 

the Office of Management and Budget 

under the Paperwork Reduction Act 

prior to becoming effective. 


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The current rule also lacks a clear, 

overarching definition of ‘‘protected 

veteran,’’ under part 60–300. Although it 

discusses the responsibilities of a 

contractor to all categories of protected 

veterans collectively, it also enumerates 

each classification of protected veteran 

several times throughout the regulation. 

Accordingly, the proposed rule includes 

a new definition of ‘‘protected veteran,’’ 

which includes all four classifications of 

protected veterans separately identified 

and defined in 60–300.2. This new term 

would replace the phrase ‘‘disabled 

veteran(s), recently separated veteran(s), 

other protected veteran(s), or Armed 

Forces service medal veteran(s)’’ used 

throughout the current rule to refer to 

these protected veterans in the 

aggregate. The individual categories of 

protected veterans continue to be 

separately identified in the first 

paragraph of the equal opportunity 

clause in § 60–300.5 to permit the 

identification of protected veterans in 

the context of the contract (see Sectionby-Section Analysis of § 60–300.5, infra, 

for further explanation). 

The proposed rule also replaces the 

term ‘‘Deputy Assistant Secretary,’’ 

found currently at § 60–300.2(d), with 

‘‘Director.’’ The current § 60–300.2(d) 

defines ‘‘Deputy Assistant Secretary’’ as 

‘‘the Deputy Assistant Secretary for 

Federal Contract Compliance of the 

United States Department of Labor, or 

his or her designee.’’ Following the 

elimination of the Employment 

Standards Administration in November 

2009, the head of OFCCP now has the 

title of Director. Accordingly, the 

proposed rule reflects this change, 

which will be made throughout part 60– 

300. 

The proposed rule also adds a 

definition of ‘‘linkage agreement,’’ now 

described in the OFCCP Federal 

Contract Compliance Manual. We 

propose adding a definition of ‘‘linkage 

agreement’’ to the regulations for clarity. 

The proposed regulation defines 

‘‘linkage agreement’’ to mean an 

agreement describing the connection 

between the contractor and appropriate 

recruitment and/or training sources. A 

linkage agreement is to be used by the 

contractor as a source of potential 

applicants to the covered groups in 

which the contractor is interested. The 

contractor’s representative that signs the 

linkage agreement should be the 

company official responsible for the 

contractor’s affirmative action program 

and/or has hiring authority. 

Section 60–300.3 [Reserved] 

Section 60–300.4 Coverage and 

Waivers 

The proposed regulation replaces the 

term ‘‘Deputy Assistant Secretary,’’ 

found in paragraphs (b)(1), (b)(2), and 

(b)(3) of this section, with the term 

‘‘Director,’’ for the reasons set forth in 

the discussion of § 60–300.2. 

Section 60–300.5 Equal Opportunity 

Clause 

Paragraph (a) contains the equal 

opportunity (EO) clause that must be 

included in all covered Government 

contracts and subcontracts. The 

proposed regulation includes numerous 

substantive changes. 

First, the proposed regulation adds 

additional language to subparagraph 2 

of the EO clause in this section 

clarifying the contractor’s responsibility 

to ‘‘list’’ jobs in the context of mandatory 

listing requirements. The mandatory job 

listing requirement discussed in 

paragraphs 2 and 3 of the EO clause 

mandates that the contractor list all 

employment openings for the duration 

of the contract with an ‘‘appropriate 

employment service delivery system,’’ 

(hereinafter ‘‘employment service’’). This 

listing not only provides a source for 

veterans to access job listings, but also 

allows the employment service to 

provide priority referrals of veterans for 

the Federal contractor jobs listed with 

the employment service. Following the 

publication of the most recent revisions 

to part 60–300 regulations, questions 

were raised as to the manner in which 

a contractor must provide information 

to an employment service in order to 

satisfy the requirement. There have been 

many instances in which a contractor 

provided job listings to an employment 

service in a manner or format that was 

unusable to that employment service. In 

order to satisfy the listing requirement, 

the contractor must provide job vacancy 

information to the appropriate 

employment service in the manner that 

the employment service requires in 

order to include the job in their database 

so that they may provide priority 

referral of veterans. OFCCP has long 

interpreted the listing responsibilities of 

a contractor in this manner. This change 

clarifies OFCCP’s policy. 

The proposed regulation also adds a 

sentence to the end of paragraph 2 

clarifying that, for any contractor who 

utilizes a privately-run job service or 

exchange to comply with its mandatory 

listing obligation, the information is 

subsequently must be provided to the 

appropriate employment service in the 

manner that the employment service 

requires. This clarification is proposed 

for two reasons. First, contractors’ use of 

private job listing services has increased 

following the elimination of the 

Department’s America’s Job Bank listing 

service. Second, we have received 

feedback from officials in state 

employment services that some 

contractors provide job listing 

information to these private job listing 

services assuming that they have then 

fulfilled their listing obligations, but 

that the private job listing services do 

not always provide the information in 

the requisite in order to list the job 

opening in its database and provide 

priority referral of protected veterans. 

The proposed regulations also add 

further detail to paragraph 4 of the EO 

clause with respect to the specific 

information the contractor must provide 

to state employment services in each 

state where the contractor has 

establishments. The current regulations 

require that the contractor provide the 

appropriate state employment service 

with the name and location of each of 

the contractor’s hiring locations. The 

proposed regulations require that the 

contractor provide the state employment 

service with the following additional 

information: (1) Its status as a Federal 

contractor; (2) the contact information 

for the contractor hiring official at each 

location in the state; and (3) its request 

for priority referrals of protected 

veterans for job openings at all its 

locations within the state. This 

information shall be updated on an 

annual basis. These three additional 

items are proposed in light of feedback 

received from state employment 

services that there is no centralized list 

of Federal contractors that they can 

consult in order to determine if a listing 

employer is a Federal contractor. If the 

Federal contractor does not specifically 

identify itself as such to the state 

employment service and further identify 

the hiring official, the state employment 

service often will not know if it should 

be providing priority referrals of 

protected veterans as required by § 60– 

300.84 or who to contact. Requiring the 

Federal contractor to provide this 

additional information will facilitate the 

priority referral process. The proposed 

regulation also adds a sentence 

clarifying that, if the contractor uses any 

outside job search companies (such as a 

temporary employment agency) to assist 

in its hiring, the contractor must also 

provide the state employment service 

with the contact information for these 

outside job search companies. Due to 

the widespread use of these outside job 

search companies, this proposed 

language is included to ensure that the 

state employment service has the ability 


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to contact any and all individuals in any 

way responsible for a contractor’s hiring 

in order to effectively carry out its 

obligations under § 60–300.84. Finally, 

the proposed regulation replaces the 

terms ‘‘state workforce agency’’ and 

‘‘state agency,’’ found in a few instances 

in this paragraph, with the term 

‘‘employment service delivery system.’’ 

The terms are interchangeable as used 

in this paragraph, but the latter term is 

already specifically defined in § 60– 

300.2, so we use it instead. 

The proposed regulation adds a new 

paragraph 5 to the EO clause which 

requires the contractor to maintain 

records, on an annual basis, of the total 

number of referrals it receives from state 

employment services, the number of 

priority referrals of protected veterans it 

receives, and the ratio of protected 

veteran referrals to total referrals. This 

is one of a few new data collection 

requirements set forth in this NPRM that 

are proposed in order to give the 

contractor (as well as OFCCP, in the 

course of compliance evaluations) a 

quantifiable measure of the availability 

of protected veterans in the workforce. 

The contractor would be required to 

maintain these records on the number of 

referrals for five (5) years. We propose 

a five year record retention requirement 

for multiple reasons. First, because the 

proposed rule anticipates that the 

contractor will use the referral data in 

setting annual hiring benchmarks (see 

Section-by-Section discussion in 300.45, 

infra) we wanted to ensure that the 

contractor has sufficient historical data 

on the number of referrals it has 

received in years past to meaningfully 

inform the benchmarks it sets going 

forward. Further, because the proposed 

rule anticipates that the contractor will 

review its outreach efforts and adjust 

them to maximize recruitment of 

protected veterans (see Section-bySection discussion in 300.44(f)(3), 

infra), we wanted to ensure that the 

contractor has sufficient historical data 

to recognize meaningful trends in 

recruitment and, subsequently, to 

identify effective recruitment efforts that 

corresponded with time periods of 

increased recruitment of protected 

veterans. If the contractor had fewer 

years of referral data on hand, it is less 

likely that the data would provide 

meaningful assistance to the contractor 

in these respects. 

In paragraph 10 of the EO clause 

(currently paragraph 9; renumbered due 

to the newly proposed paragraph 5, 

above), we propose two revisions. The 

third sentence of this paragraph is 

revised to clarify the contractor’s duty to 

provide notices of employee rights and 

contractor obligations in a manner that 

is accessible and understandable to 

persons with disabilities. It also revises 

the parenthetical at the end of the 

sentence, replacing the outdated 

suggestion of ‘‘hav[ing] the notice read 

to a visually disabled individual’’ as an 

accommodation with the suggestion to 

provide Braille, large print, or other 

versions that allow persons with 

disabilities to read the notice 

themselves. The proposed regulations 

would also add the following sentences 

to the end of proposed paragraph 10 

(current paragraph 9) of the EO clause: 

‘‘With respect to employees who do not 

work at a physical location of the 

contractor, a contractor will satisfy its 

posting obligations by posting such 

notices in an electronic format, 

provided that the contractor provides 

computers that can access the electronic 

posting to such employees, or the 

contractor has actual knowledge that 

such employees are otherwise able to 

access the electronically posted notices. 

Electronic notices for employees must 

be posted in a conspicuous location and 

format on the company’s intranet or sent 

by electronic mail to employees. An 

electronic posting must be used by the 

contractor to notify job applicants of 

their rights if the contractor utilizes an 

electronic application process. Such 

electronic applicant notice must be 

conspicuously stored with, or as part of, 

the electronic application.’’ The addition 

of these sentences is in response to the 

increased use of telecommuting and 

other work arrangements that do not 

include a physical office setting, as well 

as Internet-based application processes 

in which applicants never enter a 

contractor’s physical office. These 

revisions therefore would permit 

equivalent access to the required notices 

for these employees and applicants. 

For paragraph 11, which refers to the 

contractor’s obligation to notify labor 

organizations or other workers’ 

representatives about its obligations 

under Section 4212, we propose adding 

language clarifying that these 

obligations include non-discrimination, 

in addition to affirmative action. The 

current paragraph 11 does not 

specifically mention the contractor’s 

non-discrimination obligations. 

The proposed regulations add a new 

paragraph 13 to the EO clause which 

would require the contractor to state 

and thereby affirm in solicitations and 

advertisements that it is an equal 

employment opportunity employer of 

veterans protected under Section 4212. 

A comparable clause exists in the equal 

opportunity clause of the Executive 

Order 11246 regulations, see 41 CFR 60– 

1.4(a)(2), describing the protected 

classes under that Order. This proposed 

addition ensures consistency between 

the regulations and aids in 

communicating the contractor’s EEO 

responsibilities to job seekers. 

Finally, the proposed regulations 

amend paragraphs (d) and (e) of this 

section to require that the entire equal 

opportunity clause be included 

verbatim in Federal contracts. This is to 

ensure that the contractor and 

subcontractor read and understand the 

language in this clause. Feedback from 

town hall meetings and webinars 

conducted by OFCCP prior to the 

publication of this proposed rule 

indicated that some contractors, and 

especially subcontractors, are not aware 

of their EO Clause responsibilities. In 

the case of subcontractors, they often 

rely on the prime contractors to inform 

them of their nondiscrimination and 

affirmative action program obligations. 

If the EO Clause is not written in full, 

subcontractors are disadvantaged and 

often unaware of their statutory 

obligations until audited by OFCCP. 

Particularly given the emphasis the 

administration and Congress have 

placed on veterans’ employment issues, 

we believe it is important to take 

whatever steps will inform contractors 

and subcontractors of the obligations 

under the EO Clause. OFCCP solicits 

public comment on this proposal and 

any other steps that would increase the 

contractor community’s awareness of its 

obligations. 

The proposed regulation also replaces 

the term ‘‘Deputy Assistant Secretary,’’ 

found in paragraph (f) of this section 

and in paragraphs 9 and 11 of the EO 

clause, with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–300.2. It also replaces the phrase 

‘‘disabled veteran(s), recently separated 

veteran(s), other protected veteran(s), or 

Armed Forces service medal veteran(s)’’ 

found in the second sentence of 

Paragraph 1 and in Paragraph 9 of the 

EO clause, with the term ‘‘protected 

veteran,’’ for the reasons set forth in the 

discussion of § 60–300.2. This phrase 

remains in the first sentence of 

Paragraph 1 (with ‘‘active duty wartime 

or campaign badge veteran’’ replacing 

‘‘other protected veteran,’’ as discussed 

in § 60–300.2, supra) of the EO clause so 

it is clear to those reading the clause 

independently from the rest of the 

regulation precisely which 

classifications of veterans are protected 

by this part of the Section 4212 

regulations. Additionally, to ensure that 

the contractor is aware of the 

appropriate definitions, we propose 

adding a footnote to the title of the EO 

Clause stating explicitly that the 

definitions set forth in 41 CFR 60–300.2 

apply to the EO Clause and are 


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incorporated by reference. Finally, all 

references to ‘‘VEVRAA’’ are replaced 

with the term ‘‘Section 4212,’’ for the 

reasons set forth in the discussion of 

§ 60–300.1. 

Subpart B—Discrimination Prohibited 

Section 60–300.21 Prohibitions 

This section of the rule defines and 

addresses prohibited discriminatory 

conduct under Section 4212. The 

proposed rule includes an additional 

clause at the end of paragraph (f)(3), 

qualifying that an individual who 

rejects a reasonable accommodation 

made by the contractor may still be 

considered a qualified disabled veteran 

if the individual subsequently provides 

and/or pays for a reasonable 

accommodation. For instance, if a 

veteran knows that a certain piece of 

equipment that he or she already owns 

will allow him or her to perform the 

functions of the job, and that equipment 

would represent an undue burden for 

the contractor to provide, the veteran 

would be able to provide his or her own 

equipment and still be considered a 

qualified disabled veteran. We propose 

inserting this language to ensure 

consistency with the requirement in 

paragraph 4 of Appendix A to the 

proposed rule, which requires that 

individuals be allowed to pay for or 

provide their own accommodation if 

providing the accommodation for the 

employee would represent an undue 

burden to the contractor. 

The proposed revisions also include 

minor language changes, replacing the 

phrase ‘‘disabled veteran(s), recently 

separated veteran(s), other protected 

veteran(s), or Armed Forces service 

medal veteran(s)’’ found in paragraphs 

(a), (b), (c)(1), (d)(1), (e), (g)(1), and (i) 

with the term ‘‘protected veteran,’’ for 

the reasons set forth in the discussion of 

§ 60–300.2, above. 

Section 60–300.22 Direct Threat 

Defense 

The proposed revisions change 

‘‘§ 60–300.2(w)’’ in the parenthetical at 

the end of this section to ‘‘§ 60– 

300.2(g),’’ in light of restructuring the 

Definitions section in alphabetical 

order, as discussed in § 60–300.2, above. 

Subpart C—Affirmative Action 

Program 

Section 60–300.40 Applicability of the 

Affirmative Action Program 

Requirement 

This section sets forth which 

contractors are required to maintain an 

affirmative action program, and the 

general timing requirements for its 

creation and submission to OFCCP. We 

propose a minor clarification to 

paragraph (c) of this section, specifying 

that the affirmative action program shall 

be reviewed and updated annually ‘‘by 

the official designated by the contractor 

pursuant to § 60–300.44(i).’’ While this 

is the intent of the existing language, the 

proposal clarifies this intention and 

ensures that company officials who are 

knowledgeable of the contractor’s 

affirmative action activities and 

obligations are reviewing the program. 

Section 60–300.41 Availability of 

Affirmative Action Program 

This section sets forth the manner by 

which the contractor must make its 

affirmative action programs available to 

employees for inspection, which 

includes the location and hours during 

which the program may be obtained. 

The proposed regulation adds a 

sentence at the end of this section 

requiring that, in instances where the 

contractor has employees who do not 

work at the contractor’s physical 

establishment, the contractor shall 

inform these employees about the 

availability of the affirmative action 

program by means other than a posting 

at its establishment. This addition is 

proposed in light of the increased use of 

telecommuting and other flexible 

workplace arrangements. 

Section 60–300.42 Invitation to SelfIdentify 

The proposed revisions of this section 

make significant, substantive changes to 

the contractor’s responsibilities and the 

process through which applicants are 

invited to self-identify as a veteran 

protected under the part 60–300 

regulations, particularly those set forth 

in paragraphs (a) and (b). As described 

more fully below, these changes are 

proposed in order to collect enhanced 

data pertaining to protected veterans, 

which will allow the contractor and 

OFCCP to identify and monitor the 

contractor’s employment practices with 

respect to protected veterans. 

The current regulation requires the 

contractor to invite applicants who are 

disabled veterans as defined in 60– 

300.2, to self-identify only after making 

an offer of employment, subject to two 

exceptions. See § 60–300.42(a). For all 

other veterans protected by part 60–300, 

the current regulation requires the 

contractor to invite such applicants to 

self-identify ‘‘before they begin [their] 

employment duties.’’ 

See § 60–300.42(b). 

The two exceptions to the prohibition 

on inviting disabled veterans to selfidentify pre-offer contained in 41 CFR 

300.42(a) would not change. The 

exceptions permit a contractor to invite 

disabled veterans to self-identify prior 

to making a job offer when: (1) The 

invitation is made while the contractor 

actually is undertaking affirmative 

action for disabled veterans at the preoffer stage; or (2) the invitation is made 

pursuant to a Federal, state or local law 

requiring affirmative action for disabled 

veterans. These two exceptions are 

identical to the exceptions to the 

prohibition on pre-offer disabilityrelated inquiries contained in the 

implementing regulations for Section 

503 of the Rehabilitation Act of 1973, as 

amended, 29 U.S.C. 793 (Section 503). 

See 41 CFR 60–741.42. Consequently, 

under existing Section 4212 regulations, 

the contractor is permitted, although not 

required, to create employment 

programs targeting disabled veterans 

and inviting applicants to identify 

whether they are eligible for the 

program pre-offer. OFCCP is not 

proposing a change in this provision. 

The proposed change requires the 

contractor to invite all applicants to selfidentify as a ‘‘protected veteran’’ prior to 

the offer of employment. This proposed 

change would not seek the specific 

protected classification of protected 

veteran (disabled veteran, recently 

separated veteran, active duty wartime 

or campaign badge veteran, or Armed 

Forces service medal veteran). The preoffer invitation would not require 

protected veteran applicants to disclose 

their status as a protected veteran if they 

chose not to (see the proposed Sample 

Invitation to Self-Identify in Appendix 

B, infra). This new pre-offer selfidentification step also would include 

the requirement, currently stated in 

paragraph (e) of this section, that the 

contractor maintain the pre-offer selfidentification data and supply it to 

OFCCP upon request. Incorporating selfidentification into the application 

process would allow the contractor, and 

subsequently OFCCP, to collect 

valuable, targeted data on the number of 

protected veterans who apply for 

Federal contractor positions. This data 

would enable the contractor and OFCCP 

to measure the effectiveness of the 

contractor’s recruitment and affirmative 

action efforts over time. Moreover, the 

contractor and OFCCP will be better 

equipped to improve and refine 

successful and effective recruiting 

mechanisms, thereby increasing the 

number of applications from protected 

veterans. Additionally, this data will 

enable OFCCP to identify and promote 

successful recruitment and affirmative 

efforts taken by the contractor 

community. 

Through the various outreach efforts 

to stakeholders OFCCP has conducted 

in advance of this NPRM, an issue has 


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been raised regarding the implementing 

regulations of Title I of the ADA and 

Section 503, which limit the extent to 

which employers may inquire about 

disabilities prior to an offer of 

employment. See 29 CFR 1630.13, 

1630.14; 41 CFR 60–741.42. The 

concern is that requiring the contractor 

to invite applicants to self-identify as a 

protected veteran would violate the 

general prohibition against pre-offer 

disability-related inquiries because 

some protected veterans will be 

disabled veterans. This concern is 

misplaced, as the ADA and Section 503 

regulations permit the contractor to 

conduct a pre-offer inquiry into 

disability status if it is ‘‘made pursuant 

to a Federal, state or local law requiring 

affirmative action for individuals with 

disabilities,’’ such as Section 4212 or 

Section 503. Id. 

However, while it would be legally 

permissible to do so, OFCCP is not 

proposing that the pre-offer selfidentification identify the specific 

category of protected veteran for three 

primary reasons. First, given that the 

overall population of protected veterans 

is already relatively small, dividing the 

pool of protected veterans into smaller 

component classifications would tend to 

reduce the ability of the contractor to 

engage in meaningful data analysis of 

applicants, such as that proposed in 

§ 60–300.44(h) and (k). Second, a 

protected veteran may fall into several 

categories of protected categories, which 

could create unnecessary complexity to 

data analysis. For example, the same 

individual could be a protected veteran 

because he or she is a disabled veteran, 

a recently separated veteran and an 

Armed Service medal veteran. Finally, 

at the pre-offer stage under the proposed 

rule the contractor’s obligations would 

be the same with respect to each 

category of protected veteran, thus there 

is no apparent benefit to knowing the 

specific category of protected veteran to 

which an applicant belongs. 

In addition to the pre-employment 

self-identification provisions in § 60– 

300.42(a) of the proposed rule, § 60– 

300.42(b) of the proposed rule requires 

the contractor to invite individuals, after 

the offer of employment is extended, to 

self-identify as a member of one or more 

of the four classifications of protected 

veterans under part 60–300. Thus, postoffer identification will enable the 

contractor to capture refined data 

pertaining to each classification of 

protected veterans, as set forth in the 

VETS–100A form, which the contractor 

is required to maintain and submit. As 

is currently the case, the post-offer selfidentification as a disabled veteran 

would not require applicants to disclose 

the specific nature of their disability. 

We propose to revise paragraph (c) of 

this section by deleting the second 

sentence of the parenthetical at the end 

of the paragraph. This sentence 

described the format of and rationale 

behind the current Appendix B, which 

has been substantially amended in light 

of the new self-identification procedures 

proposed herein. For the same reasons, 

we propose revising paragraph (d) of 

this section to reflect the newly 

proposed self-identification process in 

which applicants will only identify 

themselves as disabled veterans 

specifically after an offer of employment 

is made. Further, we propose revising 

paragraph (d) to require, rather than 

suggest, that the contractor seek the 

advice of the applicant regarding 

accommodation. Requiring this of the 

contractor will help initiate a robust 

interactive and collaborative process 

between the contractor and the 

employee or applicant to identify 

effective accommodations that will 

facilitate a disabled veteran’s ability to 

perform the job. While the purpose of 

this requirement is to promote 

agreement between the contractor and 

employee or applicant regarding 

accommodations to be used, this 

proposed change would not require that, 

in the event that multiple reasonable 

accommodations exist, the contractor 

must utilize the reasonable 

accommodation preferred by the 

employee or applicant. 

We also propose replacing the term 

‘‘appropriate accommodation’’ in 

paragraph (d) with ‘‘reasonable 

accommodation.’’ We have always 

interpreted ‘‘appropriate 

accommodation’’ in this paragraph as 

substantively identical to the term 

‘‘reasonable accommodation.’’ However, 

because ‘‘reasonable accommodation’’ is 

already defined in these regulations and 

has a more broadly used and accepted 

legal definition, we propose using it 

here to avoid any confusion. This 

language change does not alter the 

contractor’s existing obligations. 

Section 60–300.43 Affirmative Action 

Policy 

This section outlines the contractor’s 

non-discrimination and affirmative 

action obligations under Section 4212. 

We propose two minor revisions to this 

section. 

First, we propose replacing the phrase 

‘‘because of status as a’’ in this section 

to ‘‘against,’’ in order to clarify that the 

non-discrimination requirements of 

Section 4212 are limited to protected 

veterans and that reverse discrimination 

claims may not be brought by 

individuals who do not fall under one 

of the categories of veterans protected 

by part 60–300. Second, we propose 

replacing the phrase ‘‘disabled 

veteran(s), recently separated veteran(s), 

other protected veteran(s), or Armed 

Forces service medal veteran(s),’’ used 

twice in this section, with the term 

‘‘protected veteran,’’ for the reasons set 

forth in the discussion of § 60–300.2. 

Section 60–300.44 Required Contents 

of Affirmative Action Programs 

This section details the elements that 

the contractor’s affirmative action 

programs must contain. These existing 

elements include: (1) An equal 

employment opportunity policy 

statement; (2) a comprehensive annual 

review of personnel processes; (3) a 

review of physical and mental job 

qualifications; (4) a statement that the 

contractor is committed to making 

reasonable accommodations for persons 

with physical and mental disabilities; 

(5) a statement that the contractor is 

committed to ensuring a harassmentfree workplace for protected veterans; 

(6) external dissemination of the 

contractor’s affirmative action policy, as 

well as outreach and recruitment efforts; 

(7) internal dissemination of the 

contractor’s affirmative action policy to 

all of its employees; (8) development 

and maintenance of an audit and 

reporting system designed to evaluate 

affirmative action programs; and (9) 

training for all employees regarding the 

implementation of the affirmative action 

program. 

The first substantive proposed 

revisions to this section focus on the 

contractor’s policy statement as set forth 

in paragraph (a). The proposed 

regulation revises the second sentence 

to clarify the contractor’s duty to 

provide notices of employee rights and 

contractor obligations in a manner that 

is accessible and understandable to 

persons with disabilities. It also revises 

the parenthetical at the end of the 

sentence, replacing the outdated 

suggestion of ‘‘hav[ing] the notice read 

to a visually disabled individual’’ as an 

accommodation with the suggestion to 

provide Braille, large print, or other 

versions that allow persons with 

disabilities to read the notice 

themselves. The proposed regulation 

also revises the third sentence of 

paragraph (a) regarding the content of 

the policy statement, replacing the 

inclusion of the ‘‘chief executive 

officer’s attitude on the subject matter’’ 

with ‘‘chief executive officer’s support 

for the affirmative action program.’’ This 

proposed change is made to clarify the 

intent of including a statement from the 

contractor’s CEO in the affirmative 


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action policy statement, which is to 

signal to the contractor’s employees that 

support for the affirmative action 

program goes to the very top of the 

contractor’s organization. 

In paragraph (b), the proposed rule 

requires that the contractor must review 

its personnel processes on at least an 

annual basis to ensure that its 

obligations are being met. The current 

rule requires that the contractor review 

these processes ‘‘periodically’’. This 

standard is vague and subject to 

confusion. Indeed, OFCCP’s efforts to 

enforce this requirement in recent years 

have been complicated by contractors’ 

various, subjective interpretations of 

what constitutes ‘‘periodic’’ review. This 

proposal sets forth a clear, measurable 

and uniform standard that will be easily 

understood by the contractor and more 

easily enforced by OFCCP. 

Further, the proposed revisions 

mandate certain specific steps that the 

contractor must take, at a minimum, in 

the review of its personnel processes. 

These specific steps are those currently 

set forth in Appendix C to the 

regulation. Appendix C currently 

suggests that the contractor: (1) Identify 

the vacancies and training programs for 

which protected veteran applicants and 

employees were considered; (2), provide 

a statement of reasons explaining the 

circumstances for rejecting protected 

veterans for vacancies and training 

programs and a description of 

considered accommodations; and (3) 

describe the nature and type of 

accommodations for special disabled 

veterans who were selected for hire, 

promotion, or training programs. 

Previously, these steps were 

recommended as an appropriate set of 

procedures. OFCCP’s enforcement 

efforts have found that many contractors 

do not follow these recommended steps, 

and that the documentation contractors 

maintain of the steps they do take are 

often not conducive to a meaningful 

review by the contractor or OFCCP, 

particularly in the event of employee/ 

applicant complaints. Such a 

meaningful review has always been the 

goal of the requirements in paragraph 

(b), as it ensures that the contractor 

remains aware of and actively engages 

in its overall affirmative action 

obligations toward protected veterans. 

The proactive approach set forth in the 

current Appendix C would provide 

greater transparency between the 

contractor, its applicants/employees, 

and OFCCP as to the reasons for the 

contractor’s personnel actions. 

Requiring that the contractor record the 

specific reasons for their personnel 

actions, and making them available to 

the employee or applicant upon request, 

would also aid them in clearly 

explaining their personnel actions to 

applicants and employees, which could 

subsequently reduce the number of 

complaints filed against contractors. 

Thus we propose requiring the 

contractor to take these steps outlined 

currently in Appendix C (which are 

incorporated into paragraph (b) in the 

proposed rule), and encourage the 

contractor to undertake any additional 

appropriate procedures to satisfy its 

affirmative action obligations. 

The proposed paragraph (c) clarifies 

that all physical and mental job 

qualification standards must be 

reviewed and updated, as necessary, on 

an annual basis. As with paragraph (b), 

the current rule’s requirement that the 

contractor review these standards 

‘‘periodically’’ is vague and subject to 

confusion. OFCCP has concluded that 

contractors inconsistently interpreted 

what constitutes ‘‘periodic’’ review. The 

proposed change provides a clear, 

measurable, and uniform standard. 

The proposed paragraph (c)(1) adds 

language requiring the contractor to 

document the results of its annual 

review of physical and mental job 

qualification standards. The regulation 

has long required this review to ensure 

that job qualification standards which 

tend to screen out disabled veterans are 

job-related and consistent with business 

necessity. The proposed change would 

merely require that the contractor 

document the review it has already been 

required to perform. It is anticipated 

that this documentation would list the 

physical and mental job qualifications 

for the job openings during a given AAP 

year—which should already be available 

from the contractor’s job postings—and 

provide an explanation as to why each 

requirement is related to the job to 

which it corresponds. Documenting this 

review will ensure that the contractor 

critically analyzes its job requirements 

and proactively eliminates those that are 

not job-related. It will also allow OFCCP 

to conduct audits and investigations in 

a more thorough and efficient manner. 

Paragraph (c)(3) currently provides 

that, as a defense to a claim by an 

individual that certain mental or 

physical qualifications are not jobrelated and consistent with business 

necessity, the contractor may assert that 

the individual poses a ‘‘direct threat’’ to 

the health or safety of the individual or 

others in the workplace. The definition 

of ‘‘direct threat’’ in these regulations 

spells out the criteria that the contractor 

must consider in determining whether a 

‘‘direct threat’’ exists. The proposed 

paragraph (c)(3) would require the 

contractor to contemporaneously create 

a written statement of reasons 

supporting its belief that a direct threat 

exists, tracking the criteria set forth in 

the ‘‘direct threat’’ definition in these 

regulations, and maintain the written 

statement as set forth in the 

recordkeeping requirement in § 60– 

300.80. Once again, this is to ensure that 

the contractor’s ‘‘direct threat’’ 

analysis—which is already required 

under these regulations, as well as 

regulations to Section 503 of the 

Rehabilitation Act and the Americans 

with Disabilities Act—is well-reasoned 

and available for review by OFCCP. 

Finally, for both the proposed 

documenting requirements in 

paragraphs (c)(1) and (c)(3), the 

proposed regulation would require that 

the contractor treat the created 

documents as confidential medical 

records in accordance with § 60– 

300.23(d). 

Perhaps the most significant 

substantive changes in the proposed 

rule address the scope of the 

contractor’s recruitment efforts and the 

dissemination of its affirmative action 

policies described in paragraphs (f) and 

(g) of this section. While these two 

paragraphs generally require that the 

contractor engage in recruitment and 

disseminate its policies, the current rule 

recommends rather than requires the 

specific methods for carrying out these 

obligations. 

The current paragraph (f) suggests a 

number of outreach and recruitment 

efforts that the contractor can undertake 

in order to increase the employment 

opportunities for protected veterans. See 

41 CFR 60–300.44(f)(1). The proposed 

paragraph (f) requires that the contractor 

engage in a minimum number of 

outreach and recruitment efforts as 

described in proposed paragraph (f)(1). 

The proposed paragraph (f) also 

includes a list of additional outreach 

and recruitment efforts that are 

suggested (proposed paragraph (f)(2)), a 

new requirement that the contractor 

conduct self-assessments of their 

outreach and recruitment efforts 

(proposed paragraph (f)(3)), and a 

clarification of the contractor’s 

recordkeeping obligation with regard to 

its outreach and recruitment efforts 

(proposed paragraph (f)(4)). 

In the proposed paragraph (f)(1), the 

contractor would be required to engage 

in three outreach and recruitment 

efforts. First, the contractor would be 

required to enter into linkage 

agreements and establish ongoing 

relationships with the Local Veterans’ 

Employment Representative in the local 

employment service office nearest the 

contractor’s establishment. The statute 

already requires contractors and 

subcontractors to send their job listings 


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to the Local Veterans’ Employment 

Representative in the local or state 

employment service office for listing 

and priority referral of protected 

veterans. The Local Veterans’ 

Employment Representative is an 

existing government resource provided 

for veterans to help them find 

employment. 

Second, the contractor would be 

required to enter into a linkage 

agreement with at least one of several 

other listed organizations and agencies 

for purposes of recruitment and 

developing training opportunities. The 

listed organizations and agencies are 

those that are listed in the current 

paragraph (f)(1), with one addition: the 

Department of Defense Transition 

Assistance Program (TAP), or any 

subsequent program that replaces TAP. 

This program is administered in part by 

the Department of Labor’s Veterans’ 

Employment and Training Service 

(VETS) in Family Services Offices or 

similar offices at military bases. (See 

http://www.dol.gov/vets/programs/tap/ 

tap_fs.htm) According to the 

Department of Defense, there are 249 

TAP offices in installations around the 

United States, and another 16 TAP 

offices located in installations abroad. 

The TAP was designed to ‘‘smooth the 

transition of military personnel and 

family members leaving active duty.’’ 

The TAP includes employment 

workshops with the Department of 

Labor, and offers individualized 

employment assistance and training. It 

is currently required for all those 

serving in the Marine Corps, and is 

generally encouraged and supported by 

the other branches of the military. 

Accordingly, it provides an excellent 

existing source for identifying qualified 

protected veterans TAP is a validated 

multi-government agency program that 

assists separating veterans in finding 

employment, from resume writing to 

interview techniques to dressing for 

success. OFCCP is aware, however, that 

not all contractors are located near a 

military base or similar facility which 

provides TAP; therefore, a contractor 

may select another organization or 

agency from the list that is more 

conducive to its recruiting efforts. 

Third, paragraph (f)(1) would also 

require that the contractor consult the 

Employer Resources section of the 

National Resource Directory, a 

partnership with an online collaboration 

(http://www.national

resourcedirectory.gov/employment/job_

services_and_employment_resources) 

among the Departments of Labor, 

Defense, and Veterans Affairs. New 

contractors and subcontractors often 

inquire about how they can find 

qualified protected veterans to comply 

with their AAP obligations. The 

National Resource Directory is a leading 

government Web site that provides 

prospective employers of veterans 

access to veterans’ service organizations, 

existing job banks of veterans seeking 

employment, and other resources at the 

national, state and local levels. The 

NPRM gives contractors and 

subcontractors the flexibility to select 

any organization on the National 

Resource Directory for outreach and 

recruit purposes. Since this Web site is 

a great nationwide resource, any 

contractor would likely find it useful in 

fulfilling its affirmative action 

obligations, such as recruiting veterans. 

The contractor would be required to 

establish a linkage agreement with at 

least one of the many veterans’ service 

organizations listed on the site 

(excluding organizations described in 

the previous paragraph) to facilitate 

referral of qualified protected veterans, 

as well as other related advice and 

technical assistance. We believe that 

these first two efforts that the proposed 

rule requires would assist the contractor 

in establishing a baseline level of 

contact with veteran and employmentrelated organizations, while providing 

the contractor with flexibility to 

establish linkage agreements with 

organizations that are most tailored to 

the contractor’s hiring needs. Finally, 

the proposed paragraph (f)(1) would 

also require that the contractor send 

written notification of company policy 

related to affirmative action efforts to its 

subcontractors, including 

subcontracting vendors and suppliers, 

in order to request appropriate action on 

their parts and to publicize the 

contractor’s commitment to affirmative 

action on behalf of protected veterans. 

While the proposed regulations would 

not require that the contractor send 

written notification to vendors and 

suppliers who are not subcontractors as 

defined by these regulations, such 

disclosure remains an encouraged 

activity, just as it is under the current 

regulation. See 41 CFR 60–300.44(f)(6)). 

We believe that the required linkage 

agreements we propose in paragraph 

(f)(1) will greatly facilitate the 

contractor’s efforts to attract qualified 

protected veteran applicants. We 

encourage comments from stakeholders 

regarding this proposal, particularly if 

stakeholders have information on 

recruitment sources not included in this 

proposal that might increase 

employment of protected veterans. 

In paragraph (f)(2) of the proposed 

rule, we list a number of outreach and 

recruitment efforts that are suggested 

measures for increasing employment 

opportunities for protected veterans. 

The efforts listed in paragraph (f)(2) are 

largely identical to the efforts that are 

suggested in paragraphs (f)(2) through 

(f)(5) and (f)(7) through (f)(8) of the 

current rule. This includes: (1) Holding 

briefing sessions with representatives 

from recruiting resources; (2) 

incorporating recruitment efforts for 

protected veterans at educational 

institutions; (3) considering applicants 

who are known protected veterans for 

all available positions when the position 

applied for is unavailable; and (4) any 

other positive steps the contractor 

believes are necessary to attract 

qualified protected veterans, including 

contacts with any local veteran-related 

organizations. 

Paragraph (f)(3) of the proposed rule 

would require the contractor, on an 

annual basis, to review the outreach and 

recruitment efforts it has undertaken 

over the previous twelve months and 

evaluate their effectiveness in 

identifying and recruiting qualified 

protected veterans, and document its 

review. Contractors that do not 

proactively monitor their outreach and 

recruitment efforts often lose 

opportunities to consider and hire 

qualified protected veterans for 

employment. This requirement will 

allow the contractor to look at its 

measurable accomplishments and 

reconsider unproductive methods. We 

believe requiring this on an annual basis 

strikes the proper balance between 

ensuring that adjustments to 

recruitment efforts are made on a timely 

basis if needed, while also ensuring that 

the contractor has enough data on 

existing recruitment efforts to be able to 

determine if adjustments need to be 

made. 

We recognize that the ‘‘effectiveness’’ 

of an outreach or recruitment effort is 

not easily defined, and may include a 

number of factors that are unique to a 

particular contractor establishment. 

Generally speaking, a review of the 

efficacy of a contractor’s efforts should 

include the number of protected veteran 

candidates each effort identifies. 

Recognizing that other unique and 

intangible characteristics may 

contribute to the assessment of the 

‘‘effectiveness’’ of a given effort, the 

proposed regulation allows the 

contractor some flexibility in making 

this assessment. However, the proposed 

regulation requires that the contractor 

consider the numbers of protected 

veteran referrals, applicants, and hires 

for the current years and two previous 

years as criteria in evaluating its efforts, 

and document all other criteria that it 

uses to assess the effectiveness of its 

efforts, so that OFCCP compliance 


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officers are able to understand clearly 

the rationale behind the contractor’s 

self-assessment. The contractor’s 

conclusion as to the effectiveness of its 

outreach must be reasonable as 

determined by OFCCP in light of these 

regulations. The primary indicator of 

effectiveness is whether qualified 

veterans have been hired. Further, 

should the contractor determine that its 

efforts were not effective, the proposed 

rule requires the contractor to identify 

and implement one or more of the 

alternative efforts listed in proposed 

paragraphs (f)(1) and (f)(2) in order to 

fulfill its obligations. The general 

purpose of this self-assessment is to 

ensure that the contractor think 

critically about its recruitment and 

outreach efforts, identify and ascertain 

successful recruiting efforts, and modify 

its efforts to ensure that its obligations 

are being met. 

Paragraph (f)(4) of the proposed rule 

would require that the contractor 

document its linkage agreements and 

the activities it undertakes in order to 

comply with paragraph (f), and retain 

these documents for a period of five (5) 

years. This requirement will enable the 

contractor and OFCCP to more 

effectively review recruitment and 

outreach efforts undertaken to ensure 

that the affirmative action obligations of 

paragraph (f) are satisfied. 

Paragraph (g) of this section requires 

that the contractor develop internal 

procedures to communicate to its 

employees its obligation to engage in 

affirmative action efforts. The current 

paragraph (g)(2) contains several 

suggested methods by which the 

contractor may accomplish this. The 

proposed rule would mandate the 

following practices: (1) Include its 

affirmative action policy in its policy 

manual; (2) inform all applicants and 

employees of its affirmative action 

obligations; (3) conduct meetings with 

executive, management, and 

supervisory personnel to explain the 

intent of the policy and responsibility 

for its implementation; and (4) discuss 

the policy in orientation and 

management training programs. In 

addition, if the contractor is party to a 

collective bargaining agreement, then 

the proposed rule would require the 

contractor to meet with union officials 

and representatives to inform them 

about the policy and seek their 

cooperation. Other suggested elements 

in the current paragraph (g)(2) remain in 

the proposed rule at newly created 

paragraph (g)(3) as suggested additional 

dissemination efforts the contractor can 

make. This includes suggesting that the 

contractor use company newspapers, 

magazines, annual reports, handbooks, 

or other media to publicize its 

affirmative action obligations and 

feature protected veterans and their 

accomplishments. See current 

regulation at 41 CFR 60– 

300.44(g)(2)(iii), 60–300.44(g)(2)(vii); 

60–300.44(g)(2)(viii). 

As for the requirement to inform all 

applicants and employees of its 

affirmative action obligations (item (2) 

in the preceding paragraph), the 

proposed regulation would require that 

the contractor hold meetings with its 

employees at least once per year to 

discuss the contractor’s affirmative 

action policies and to explain contractor 

and individual employee 

responsibilities under these policies. 

These could be traditional in-person 

meetings, or meetings facilitated by 

technology such as webinars or 

videoconferencing. It would also require 

that the contractor describe individual 

employee opportunities for 

advancement in furtherance of the 

contractor’s affirmative action plan. 

Frequent establishment-wide training 

on affirmative action issues will 

facilitate a greater understanding of the 

purpose of the affirmative action plan 

among employees. This training will 

also enhance the visibility and 

importance of affirmative action to the 

recruitment, hiring, and advancement of 

protected veterans. Finally, a newly 

proposed paragraph (g)(4) would require 

the contractor to document its activities 

in order to comply with paragraph (g), 

and retain these documents as records 

subject to the recordkeeping 

requirements of § 60–300.80. This will 

allow for a more effective review by the 

contractor and OFCCP to ensure that the 

affirmative action obligations of 

paragraph (g) are being met. 

Paragraph (h) of this section details 

the contractor’s responsibilities in 

designing and implementing an audit 

and reporting system for its affirmative 

action program, including the specific 

computations and comparisons that are 

part of the audit. The proposed 

regulations add a new paragraph 

(h)(1)(vi) requiring the contractor to 

document the actions taken to comply 

with paragraphs (h)(1)(i)–(v), and 

maintain such documents as records 

subject to the recordkeeping 

requirements of § 60–300.80. Again, this 

will allow for a more effective review by 

the contractor and OFCCP to ensure the 

affirmative action obligations of this 

paragraph are being met. 

The only substantive proposed change 

in paragraph (i) requires that the 

identity of the officials responsible for a 

contractor’s affirmative action activities 

must appear on all internal and external 

communications regarding the 

contractor’s affirmative action program. 

In the current regulation, this disclosure 

is only suggested. Requiring this 

disclosure will increase transparency, 

making it clear to applicants, 

employees, OFCCP, and other interested 

parties which individual(s) are 

responsible for the implementation of 

the contractor’s affirmative action 

program. 

Paragraph (j) requires that the 

contractor train those individuals who 

implement the personnel decisions 

pursuant to its affirmative action 

program. The proposed regulation 

specifies the specific topics that shall be 

included in the contractor’s training: the 

benefits of employing protected 

veterans; appropriate sensitivity toward 

protected veteran recruits, applicants 

and employees; and the legal 

responsibilities of the contractor and its 

agents regarding protected veterans 

generally and disabled veterans 

specifically, such as reasonable 

accommodation for qualified disabled 

veterans and the related rights and 

responsibilities of the contractor and 

protected veterans. Training on these 

issues will facilitate a greater 

understanding of the purpose of the 

affirmative action plan among decision 

makers for the contractor, and will 

enhance the visibility and importance of 

affirmative action to the recruitment, 

hiring, and advancement of protected 

veterans. The proposed regulation 

would also require that the contractor 

record which of its personnel receive 

this training, when they receive it, and 

the person(s) who administer(s) the 

training, and maintain these records, 

along with all written or electronic 

training materials used, in accordance 

with the recordkeeping requirements of 

§ 60–300.80. Again, this will allow for a 

more effective review by the contractor 

and OFCCP to ensure the affirmative 

action obligations of this paragraph are 

being met. 

The proposed regulation adds a new 

paragraph (k) requiring that the 

contractor maintain several quantitative 

measurements and comparisons 

regarding protected veterans who have 

been referred by state employment 

services, have applied for positions with 

the contractor, and/or have been hired 

by the contractor. The impetus behind 

this new section is that, as stated in the 

discussion of § 60–300.44(a), no 

structured data regarding the number of 

protected veterans who are referred for 

or apply for jobs with Federal 

contractors is currently maintained. 

This absence of data makes it nearly 

impossible for the contractor and 

OFCCP to perform even rudimentary 

evaluations of the availability of 


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protected veterans in the workforce, or 

to make any quantitative assessments of 

how effective contractor outreach and 

recruitment efforts have been in 

attracting protected veteran candidates. 

The proposed regulations provide for 

the collection of referral data (see § 60– 

300.5, paragraph 5 of the EO clause), as 

well as applicant data (see § 60– 

300.42(a)). Hiring data is already 

maintained by the contractor in its 

VETS–100A forms, a requirement which 

is carried over into this proposal. 

Accordingly, paragraph (k) requires that 

the contractor document and update 

annually the following information: (1) 

For referral data, the total number of 

referrals, the number of priority referrals 

of protected veterans, and the ‘‘referral 

ratio’’ of referred protected veterans to 

total referrals; (2) for applicant data, the 

total number of applicants for 

employment, the number of applicants 

who are known protected veterans, and 

the ‘‘applicant ratio’’ of known protected 

veteran applicants to total applicants; 

(3) for hiring data, the total number of 

job openings, the number of jobs filled, 

the number of known protected veterans 

hired, and the ‘‘hiring ratio’’ of known 

protected veteran hires to total hires; 

and (4) the total number of job openings, 

the number of jobs that are filled, and 

the ‘‘job fill ratio’’ of job openings to job 

openings filled. The proposed 

regulation requires that the contractor 

must document these measurements on 

an annual basis, and maintain records of 

them for five (5) years. These basic 

measurements will provide the 

contractor and OFCCP with important 

information that does not currently 

exist. This will aid the contractor in 

evaluating and tailoring its recruitment 

and outreach efforts and in establishing 

hiring benchmarks as set forth in the 

discussion of the proposed § 60–300.45, 

infra. 

Finally, the proposed regulation 

replaces the phrase ‘‘disabled veteran(s), 

recently separated veteran(s), other 

protected veteran(s), or Armed Forces 

service medal veteran(s),’’ with the term 

‘‘protected veteran’’ in paragraphs (a), 

(a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), 

(f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), 

(g)(2)(vii), and (h)(1)(iv), for the reasons 

stated in the discussion of § 60–300.2. 

The proposed regulation also replaces 

the terms ‘‘Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974’’ or 

‘‘VEVRAA’’ with the term ‘‘Section 4212’’ 

throughout this section, for the reasons 

stated in the discussion of § 60–300.1. 

Section 60–300.45 ContractorEstablished Benchmarks for Hiring 

The proposed regulation would 

require for the first time that the 

contractor establish annual hiring 

benchmarks, expressed as the 

percentage of total hires who are 

protected veterans that the contractor 

seeks to hire in the following year. As 

stated in paragraph (a) of the proposed 

rule and set forth more fully below, 

these hiring benchmarks would be 

established by the contractor using 

existing data on veteran availability, 

while also allowing the contractor to 

take into account other factors unique to 

its establishment that would tend to 

affect the availability determination. 

While the Bureau of Labor Statistics 

(BLS) and Census Bureau (Census) do 

not tabulate data pertaining to the 

specific classifications of protected 

veterans under part 60–300, there are 

other existing data sources that are 

instructive. For instance, BLS tabulates 

statewide data on the number of 

veterans in the civilian labor force and 

the unemployment rate of veterans in 

the labor force, and national data on the 

number of veterans with a servicerelated disability. The Department’s 

Veterans’ Employment and Training 

Service collects statewide data over a 

rolling, four quarter period of 

individuals who ‘‘participated’’ in the 

state employment services. The 

breakdown of this data includes the 

number of overall veterans, the number 

of overall veterans who are identified as 

being unemployed, and the number of 

veterans in some, although not all, of 

the specific categories of veterans 

protected by part 60–300. 

Accordingly, the proposed rule would 

require that the contractor consult a 

number of different sources of 

information, which will be made easily 

available to the contractor, in 

establishing hiring benchmarks. As set 

forth in the proposed paragraph (b), 

these sources would include: (1) The 

percentage of veterans in the civilian 

labor force, tabulated by BLS and which 

will be published on OFCCP’s Web site; 

(2) the number of veterans who were 

participants in the state employment 

service in the State where the 

contractor’s establishment is, which will 

also be published on OFCCP’s Web site; 

(3) the referral ratio, applicant ratio, and 

hiring ratios as expressed in the 

proposed § 60–300.44(k); (4) the 

contractor’s recent assessments of the 

effectiveness of its external outreach 

and recruitment efforts, as expressed in 

the proposed § 60–300(f)(3); and (5) any 

other factors, including but not limited 

to the nature of the contractor’s job 

openings and/or its location, which 

would tend to affect the availability of 

qualified protected veterans. The 

contractor would be required to 

consider and document each of these 

factors, see proposed paragraph (c) of 

this section, but would be given 

discretion to weigh the various factors 

in a manner that is reasonable in light 

of the contractor’s unique 

circumstances. We believe that this 

proposal creates a practical and 

workable mechanism for establishing 

benchmarks that will allow the 

contractor to measure its success in 

recruiting and employing protected 

veterans. However, we seek input from 

stakeholders on this proposal and any 

additional measures that would make 

these benchmarks more meaningful, as 

well as any other measures that would 

otherwise increase employment 

opportunities for veterans. 

Subpart D—General Enforcement and 

Complaint Procedures 

Section 60–300.60 Compliance 

Evaluations 

This section details the form and 

scope of the compliance evaluations of 

the contractor’s affirmative action 

programs conducted by OFCCP. The 

proposed rule contains several changes 

to this section. 

First, the proposal adds a sentence to 

paragraph (a)(1)(i) regarding the 

temporal scope of desk audits 

performed by OFCCP. This language 

merely clarifies OFCCP’s long-standing 

policy that, in order to fully investigate 

and understand the scope of potential 

violations, OFCCP may need to examine 

information after the date of the 

scheduling letter in order to determine, 

for instance, if violations are continuing 

or have been remedied. The language 

does not represent a change in policy or 

new contractor obligations. 

Second, the current paragraph (a)(2) 

relating to the off-site review of records 

incorrectly refers to the ‘‘requirements of 

the Executive Order and its regulations;’’ 

the proposed rule corrects this to read 

the ‘‘requirements of Section 4212 and 

its regulations.’’ 

Third, the proposed rule contains a 

change to the nature of document 

production under paragraph (a)(3). This 

paragraph, which specifies a 

‘‘compliance check’’ as an investigative 

procedure OFCCP can use to monitor a 

contractor’s recordkeeping, currently 

states that the contractor may provide 

relevant documents either on-site or offsite ‘‘at the contractor’s option.’’ The 

proposed regulation eliminates this 

quoted clause and provides that OFCCP 

may request that the documents to be 

provided either on-site or off-site. 

Fourth, the proposed rule contains a 

minor change to the scope of ‘‘focused 

reviews’’ as set forth in paragraph (a)(4). 

Focused reviews allow OFCCP to target 


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one or more components of a 

contractor’s organization or employment 

practices, rather than conducting a more 

comprehensive compliance review of an 

entire organization. Currently, the 

regulations provide that these focused 

reviews are ‘‘on-site,’’ meaning they 

must take place at the contractor’s place 

of business. The increased use of 

electronic records that are easily 

accessible from multiple locations 

affords compliance officers greater 

flexibility in conducting focused 

reviews. Therefore, we propose to delete 

the word ‘‘on-site’’ from this section, 

which will allow compliance officers to 

conduct reviews of relevant materials at 

any appropriate location. 

Fifth, the proposed rule contains a 

new paragraph (d) which details a new 

procedure for pre-award compliance 

evaluation under Section 4212. This 

proposed rule is based on the pre-award 

compliance procedure contained in the 

Executive Order regulations (see 41 CFR 

60–1.20(d)). 

Finally, the proposed regulation 

replaces the phrase ‘‘disabled veteran(s), 

recently separated veteran(s), other 

protected veteran(s), or Armed Forces 

service medal veteran(s),’’ with the term 

‘‘protected veteran’’ in paragraph (a) for 

the reasons stated in the discussion of 

§ 60–300.2. 

Section 60–300.61 Complaint 

Procedures 

This section outlines the manner in 

which applicants or employees who are 

protected veterans may file complaints 

alleging violations of Section 4212 or its 

regulations. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ with the 

term ‘‘Director’’ in paragraphs (e)(1), 

(e)(2), and (e)(3), for the reasons set forth 

in the discussion of § 60–300.2. The 

proposed regulation also replaces the 

term ‘‘state workforce agency’’ in 

paragraph (a) with the term 

‘‘employment service delivery system,’’ 

for the reasons set forth in the 

discussion of § 60–300.5. Finally, the 

proposed regulation replaces the phrase 

‘‘disabled veteran(s), recently separated 

veteran(s), other protected veteran(s), or 

Armed Forces service medal veteran(s),’’ 

with the term ‘‘protected veteran’’ in 

paragraph (b)(iii), for the reasons stated 

in the discussion of § 60–300.2. 

Section 60–300.64 Show Cause Notice 

This section describes the manner in 

which OFCCP notifies a contractor 

when it believes the contractor has 

violated Section 4212 or its regulations. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in this 

section with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–300.2. 

Section 60–300.65 Enforcement 

Proceedings 

This section describes the procedures 

for formal enforcement proceedings 

against a contractor in the event OFCCP 

finds a violation of Section 4212 or its 

regulations that has not been corrected. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in 

paragraph (a)(2) of this section with the 

term ‘‘Director,’’ for the reasons set forth 

in the discussion of § 60–300.2. 

Section 60–300.66 Sanctions and 

Penalties 

This section discusses the types of 

sanctions and penalties that may be 

assessed against a contractor if it is 

found to have violated Section 4212 or 

its regulations. The proposed rule 

replaces the term ‘‘Deputy Assistant 

Secretary’’ in paragraph (a) of this 

section with the term ‘‘Director,’’ for the 

reasons set forth in the discussion of 

§ 60–300.2. 

Section 60–300.67 Notification of 

Agencies 

This section provides that agency 

heads will be notified if any contractors 

are debarred. The proposed rule 

replaces the term ‘‘Deputy Assistant 

Secretary’’ with the term ‘‘Director,’’ for 

the reasons set forth in the discussion of 

§ 60–300.2. 

Section 60–300.68 Reinstatement of 

Ineligible Contractors 

This section outlines the process by 

which a contractor that has been 

debarred may apply for reinstatement. 

The proposed rule replaces the term 

‘‘Deputy Assistant Secretary’’ in 

paragraphs (a) and (b) of this section 

with the term ‘‘Director,’’ for the reasons 

set forth in the discussion of § 60–300.2. 

Section 60–300.69 Intimidation and 

Interference 

This section forbids the contractor 

from retaliating against individuals who 

have engaged in or may engage in 

certain specified protected activities, 

and describes the contractor’s 

affirmative obligations in preventing 

retaliation. The proposed rule replaces 

the term ‘‘Deputy Assistant Secretary’’ in 

paragraph (b) of this section with the 

term ‘‘Director,’’ for the reasons set forth 

in the discussion of § 60–300.2. The 

proposed rule also replaces the phrase 

‘‘disabled veteran(s), recently separated 

veteran(s), other protected veteran(s), or 

Armed Forces service medal veteran(s),’’ 

with the term ‘‘protected veteran’’ in 

paragraphs (a)(2) and (a)(3) for the 

reasons stated in the discussion of § 60– 

300.2. 

Subpart E—Ancillary Matters 

Section 60–300.80 Recordkeeping 

This section describes the 

recordkeeping requirements that applies 

to the contractor under Section 4212, 

and the consequences for the failure to 

preserve records in accordance with 

these requirements. The proposed 

regulation adds a sentence at the end of 

paragraph (a) of this section clarifying 

that the newly proposed recordkeeping 

requirements set forth in §§ 300.44(f)(4) 

(linkage agreements and other outreach 

and recruiting efforts), 300.44(k) 

(collection of referral, applicant and hire 

data), 300.45(c) (criteria and 

conclusions regarding contractor 

established hiring benchmarks), and 

Paragraph 5 of the equal opportunity 

clause in § 60–300.5(a) (referral data) 

must be maintained for five (5) years, for 

the reasons set forth in the discussion of 

those sections, supra. 

Section 60–300.81 Access to Records 

This section describes a contractor’s 

obligations to permit access to OFCCP 

when conducting compliance 

evaluations and complaint 

investigations. The proposed rule adds 

some language clarifying the 

contractor’s obligations, particularly in 

light of the increased use of 

electronically stored records. First, the 

proposed rule adds a sentence requiring 

the contractor to provide off-site access 

to materials if requested by OFCCP 

investigators or officials as part of an 

evaluation or investigation. This change 

reflects the increased use of electronic 

records from multiple locations, and 

accordingly gives OFCCP greater 

flexibility in conducting its evaluations 

and investigations. Second, the 

proposed rule requires that the 

contractor specify to OFCCP all formats 

(including specific electronic formats) 

in which its records are available, and 

produce records to OFCCP in the format 

selected by OFCCP. This change is 

proposed in light of numerous instances 

in which OFCCP has conducted 

extensive review and analysis of a 

contractor’s records only to find 

subsequently that the records were 

available in more readily accessible 

formats. Specifying the variety of 

available formats upon request, and 

providing records to OFCCP in the 

format it selects, will facilitate a more 

efficient investigation process. 


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Section 60–300.83 Rulings and 

Interpretations 

This section establishes that rulings 

and interpretations of Section 4212 will 

be made by the Director of OFCCP. The 

proposed revisions make minor 

changes, replacing the term ‘‘Deputy 

Assistant Secretary’’ with the term 

‘‘Director,’’ for the reasons set forth in 

the discussion of § 60–300.2. 

Section 60–300.84 Responsibilities of 

Appropriate Employment Service 

Delivery Systems 

This section outlines the 

responsibilities of employment service 

delivery systems, including the 

obligation to give priority referral to 

protected veterans for jobs listed by a 

Federal contractor. The proposed rule 

replaces the phrase ‘‘disabled veteran(s), 

recently separated veteran(s), other 

protected veteran(s), or Armed Forces 

service medal veteran(s),’’ with the term 

‘‘protected veteran’’ for the reasons 

stated in the discussion of § 60–300.2. 

Appendix A to Part 60–300—Guidelines 

on a Contractor’s Duty to Provide 

Reasonable Accommodation 

The proposed rule includes four 

changes to Appendix A which would 

mandate activities that previously were 

only suggested. These changes primarily 

reflect proposed revisions to §§ 60– 

300.2 and 60–300.42(d), supra, that 

would alter the contractor’s 

responsibilities. 

First, in the third sentence of 

paragraph 2, we propose changing the 

language to reflect the change to § 60– 

300.42(d) requiring a contractor to seek 

the advice of disabled veterans in 

providing reasonable accommodation. 

Second, in the last sentence of 

Paragraph 4, the proposed rule is 

changed to require that disabled 

veterans, in the event an 

accommodation would constitute an 

undue hardship for the contractor, be 

given the option of providing the 

accommodation or paying the portion of 

the cost that constitutes the undue 

hardship for the contractor. Third, in 

the fourth sentence of paragraph 5, we 

propose changing the language to 

require a contractor to seek the advice 

of disabled veterans in providing 

reasonable accommodation. Finally, in 

the last sentence of paragraph 9, the 

proposed rule is changed to require that 

a contractor must consider the totality of 

the circumstances when determining 

what constitutes a ‘‘reasonable amount 

of time’’ in the context of available 

vacant positions. 

Additionally, the proposed rule 

changes the reference to ‘‘§ 60–300.2(o)’’ 

in paragraph 1 of Appendix A to ‘‘§ 60– 

300.2(t),’’ and changes the references to 

‘‘§ 60–300.2(t)’’ in paragraphs 5 and 8 of 

Appendix A to ‘‘§ 60–300.2(u).’’ This is 

to reflect the revised alphabetical 

structure of the definitions section in 

the proposed rule, as discussed in § 60– 

300.2, above. The proposed regulation 

also replaces the term ‘‘VEVRAA’’ with 

‘‘Section 4212’’ for the reasons set forth 

in the discussion of § 60–300.1. 

Appendix B to Part 60–300—Sample 

Invitation to Self-Identify 

The proposed rule amends Appendix 

B consistent with the proposed changes 

to the self-identification regulation 

found at § 60–300.42. The first 

paragraph is amended simply to include 

detailed definitions of the four types of 

classifications of protected veterans. 

These definitions are to be included in 

a contractor’s invitation to self-identify 

either at the pre-offer (proposed § 60– 

300.42(a)) or post-offer (proposed § 60– 

300.42(b)). We propose this change to 

clarify for the contractor and for 

applicants exactly which categories of 

veterans are protected by part 60–300. 

The second paragraph of the 

Appendix contains the suggested model 

language for the self-identification of 

protected veterans. The current 

language has models to be used if they 

are being distributed to non-disabled 

protected veterans exclusively, disabled 

veterans exclusively, or to all protected 

veterans. In keeping with the proposed 

changes in § 60–300.42, we propose 

amending the second paragraph to 

include two models: One that will be 

given to all applicants at the pre-offer 

stage, and one that will be given at the 

post-offer stage to all individuals who 

have been offered employment by the 

contractor. For the pre-offer stage, the 

invitation refers to the definitions for 

each of the classifications of protected 

veterans and invites applicants to 

identify if they belong to any one (or 

more) of them generally. It does not 

provide for individuals to self-identify 

as a particular type of protected veteran 

(e.g., a qualified disabled veteran). For 

the post-offer stage, the invitation again 

refers to the definitions for each of the 

classifications of protected veteran and 

then invites applicants to indicate to 

which specific classifications of 

protected veteran they belong. 

For both the pre-offer and post-offer 

invitations, we have proposed new 

language explaining to applicants that 

the information is being requested in 

order to measure the contractor’s 

outreach and recruitment efforts 

required under part 60–300. This 

replaces the current language which 

only inquires whether individuals 

would like to be included under the 

contractor’s affirmative action program. 

The post-offer invitation in Paragraph 2 

also incorporates the language in the 

current paragraph 7 of the Appendix, 

which requests that disabled veterans 

describe possible workplace 

accommodations, with the exception of 

replacing ‘‘elimination of certain duties 

relating to the job’’ with ‘‘changes in the 

way the job is customarily performed.’’ 

We propose this change merely to 

clarify the nature of the interactive 

process, and to eliminate any confusion 

that might exist regarding the existing 

language that ‘‘elimination of certain 

duties’’ could be read to include 

eliminating essential functions of the 

job. It is a change in verbiage only, and 

does not alter the substantive 

obligations of the contractor or 

applicant in the interactive process. 

Finally, the proposed regulation also 

replaces the term ‘‘VEVRAA’’ with 

‘‘Section 4212’’ for the reasons set forth 

in the discussion of § 60–300.1. 

Appendix C to Part 60–300—Review of 

Personnel Processes 

The proposed rule deletes Appendix 

C and moves the its content, with some 

edits, to § 60–300.44(b). See the Sectionby-Section Analysis of § 60–300.44, 

supra, for further discussion. 

Regulatory Procedures 

Executive Order 12866 and Executive 

Order 13563 (Regulatory Planning and 

Review) 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated a ‘‘significant 

regulatory action’’ although not 

economically significant, under section 

3(f) of Executive Order 12866. 

Accordingly, the rule has been reviewed 

by the Office of Management and 

Budget. 

The Need for the Regulation 

The guiding principle and overall 

benefit of this proposed regulation is 

plain: To facilitate the process of 

connecting veteran job-seekers with 

contractor employers who are seeking to 

hire protected veterans and helping 

these veterans succeed once they are 


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employed. As we have stated previously 

in this NPRM, the framework 

articulating a contractor’s 

responsibilities with respect to 

affirmative action, recruitment, and 

placement have remained largely 

unchanged since the Section 4212 

implementing rules were first published 

in 1976. Meanwhile, increasing 

numbers of veterans are returning from 

tours of duty in Iraq, Afghanistan, and 

other places around the world. These 

veterans possess valuable skills that are 

highly sought after in the job market. 

However, veterans face substantial 

obstacles in finding employment upon 

leaving the service and returning home. 

Addressing the barriers our veterans 

face upon returning to civilian life, 

particularly with regard to employment, 

is a high priority of the current 

Administration and, as discussed in the 

background section, has been the focus 

of a number of Federal efforts. 

To ascertain how OFCCP could assist 

veterans in their search for employment, 

and facilitate the contractor’s 

satisfaction of affirmative action 

obligations designed to employ more 

veterans, OFCCP conducted multiple 

town hall meetings, webinars, and 

listening sessions with the public to 

determine how we could increase the 

employment opportunities for qualified 

protected veterans with Federal 

contractors. Based upon the information 

OFCCP received, we identified specific 

changes that could be made to the 

implementing regulations of Section 

4212 that would help increase 

employment opportunities for veterans. 

The changes set forth in this proposal 

create four broad categories of benefits. 

First and foremost, the proposed 

changes will connect job-seeking 

veterans with contractors looking to 

hire. Currently, there is much confusion 

regarding exactly how and with whom 

the contractor must list its jobs. 

Therefore, as an initial matter, the 

proposal clarifies the mandatory job 

listing requirements and requires the 

contractor to provide additional, 

regularly updated information to 

employment service delivery systems to 

ensure its job openings are listed 

accurately. This will help to ensure that 

veterans can easily learn about all 

available jobs with Federal contractors 

in their state. The proposal also helps to 

ensure that the contractor can find 

veterans, by requiring the contractor to 

engage in recruitment efforts and enter 

into linkage agreements with several 

veterans’ employment sources (many of 

which are specifically listed by OFCCP 

in the proposed rule), while allowing 

the contractor the flexibility to 

determine the sources that work best. 

Second, many of the proposed 

changes ensure that the contractor 

understands and effectively 

communicates its affirmative action 

obligations to its workforce and the 

other entities with which it does 

business. While bringing job-seeking 

veterans and employers together is an 

important first step, it is equally 

important that the contractor, its 

employees, and veteran applicants 

understand the protections and benefits 

of Section 4212. Accordingly, the 

proposed rule seeks to promote this 

clear communication in several ways, 

including: 

• Holding annual meetings (whether 

in-person, or via webinar or 

videoconferencing) with all employees 

to discuss the AAP, contractor/ 

individual responsibilities, and 

individual employee opportunities for 

advancement; 

• Holding meetings with executive, 

management, and supervisory personnel 

to explain the intent of the AAP and 

responsibilities in implementing it; and 

discussing the policy at employee 

orientation and training programs. 

These steps will facilitate a greater 

understanding of the purpose of the 

affirmative action policies among the 

contractor’s employees, and will 

enhance the visibility and importance of 

affirmative action to the recruitment, 

hiring, and advancement of protected 

veterans. The proposed rule will also 

promote clearer communication of 

Section 4212 obligations by: 

• Providing notices of rights under 

Section 4212 in accessible formats for 

those working offsite (i.e., 

electronically-accessible postings) as 

well as those with visual impairments, 

so that all parties understand their 

respective rights and obligations under 

the law; 

• Requiring the contractor to review 

its personnel processes on an annual 

basis, and to document personnel 

actions taken with regard to protected 

veterans to provide greater transparency 

between the contractor, its applicants/ 

employees, and OFCCP as to the reasons 

for the contractor’s personnel actions; 

and 

• Requiring the contractor to meet 

with and/or otherwise send notification 

of its AAP obligations to third parties 

with which it does business, such as 

union officials and subcontractors. 

Third, the proposed rule provides 

increased mechanisms by which the 

contractor can assess its affirmative 

action efforts. Until now, the contractor 

had few objective measures by which it 

could measure the extent to which the 

resources spent on AAP were effective 

or could be used most effectively. To 

that end, the proposed rule requires the 

contractor to collect data—and OFCCP 

to provide some additional data—by 

which the contractor may more 

accurately assess its efforts. This 

includes collecting data on referrals and 

applicants so the contractor knows how 

many protected veterans it is reaching. 

The contractor will be able to use this 

information, as well as other veteran 

employment data provided by OFCCP, 

to set benchmarks by which the 

contractor can objectively measure its 

recruitment efforts and determine which 

ones are most fruitful in attracting 

qualified protected veteran candidates. 

Finally, the proposed rule’s changes 

to the manner in which OFCCP 

conducts its compliance reviews will 

benefit both protected veterans and the 

contractor. These changes include a 

greater emphasis on identifying 

electronic data that OFCCP can review, 

greater flexibility in where reviews take 

place, and a new procedure for a preaward compliance review. The 

emphasis on using electronic data and 

flexibility will allow OFCCP to 

complete reviews far more efficiently. 

Discussion of Impacts 

OFCCP has separately determined the 

costs of compliance with those 

requirements of Section 4212 falling 

under the scope of the Paperwork 

Reduction Act. See Analysis of 

Paperwork Reduction Act burden, infra. 

Additional costs outside the scope of 

the PRA, which are new obligations in 

the proposed rule, are as follows: 

60–250.44(f)(3)/60–300.44(f)(3): As 

discussed in the Section-by-Section 

Analysis of this paragraph, the proposed 

rule would require the contractor to 

review the effectiveness of its outreach 

and recruitment efforts on an annual 

basis. The general purpose of this selfassessment is to ensure that the 

contractor think critically about its 

recruitment and outreach efforts, and 

requiring it will allow the contractor to 

look at its measurable accomplishments, 

maintain methods that are successful in 

recruiting protected veterans, and 

reconsider unproductive methods. 

OFCCP estimates that this annual 

review will take approximately 20 

minutes. OFCCP further estimates that 

1% of the 108,288 Federal contractor 

establishments are first-time contractors 

during an abbreviated AAP year, and 

therefore would be unable to complete 

an annual outreach and recruitment 

effort. 

60–250.44(g)/60–300.44(g): As 

discussed in the Section-by-Section 

Analysis of this paragraph, the proposed 

rule would require holding annual 

meetings (either in person, or in 


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technology-adapted formats such as 

webinars or videoconferencing) with all 

employees to discuss the AAP, 

contractor/individual responsibilities, 

and individual employee opportunities 

for advancement; meetings with 

executive, management, and 

supervisory personnel; and discussing 

the policy at employee orientation and 

training programs. Frequent 

establishment-wide training on 

affirmative action issues is a benefit to 

both the contractor and protected 

veterans, as it will enhance the visibility 

and facilitate a greater understanding of 

the importance of affirmative action to 

the recruitment, hiring, and 

advancement of protected veterans, 

creating a culture of compliance. It will 

also help to ensure that protected 

veterans themselves are aware of, and 

better able to avail themselves of, their 

rights. To decrease contractor burden, 

OFCCP will provide a sample training 

module. OFCCP estimates that 90% of 

contractors, or 97,459, will use this 

sample training, and that 10% of 

contractors, or 10,829, will create their 

own training. OFCCP further estimates 

that downloading the sample training 

will take 15 minutes and that creating 

training will take 10 hours. The average 

burden per contractor establishment 

would be the following: 97,459 × 15/60/ 

108,288 = .2 hours; 10,829 × 10/108,288 

= 1 hour. OFCCP estimates an average 

of 1.2 hours per contractor 

establishment for compliance with this 

requirement. 

60–250.44(j)/60–300.44(j): As 

discussed in the Section-by-Section 

Analysis of this paragraph, the proposed 

rule would also require specific training 

for those involved in personnel 

decisions to ensure that they are making 

such decisions in compliance with 

Section 4212, detailing specific topics 

that must be addressed. Once again, 

training on these issues will benefit the 

contractor and veterans by facilitating a 

greater understanding of the purpose of 

the affirmative action plan among 

decision makers for the contractor, and 

will enhance the visibility and 

importance of affirmative action to the 

recruitment, hiring, and advancement of 

protected veterans. Furthermore, 

proactive training on these issues holds 

the real promise of reducing the number 

of Section 4212 violations. OFCCP 

estimates a total of 2 hours per 

contractor establishment for compliance 

with this requirement. 

60–250.45/60–300.45: As discussed in 

the Section-by-Section Analysis of this 

paragraph, the proposed rule would 

require the contractor to establish 

benchmarks, based on a mix of data 

collected by the contractor and the 

Department, as well as a subjective 

component to allow the contractor to 

take into account any unique aspects of 

the nature of the contractor’s job 

openings and/or its location. This 

requirement benefits the contractor by 

providing a marker by which they can 

quantitatively measure the success of 

their outreach and recruitment efforts. 

OFCCP estimates (for the portion of this 

requirement not covered by the PRA 

analysis, infra) a total of 1 hour per 

contractor establishment for compliance 

with this requirement. 

The estimated annualized cost to 

respondent contractors is based on 

Bureau of Labor Statistics data in the 

publication ‘‘Employer Costs for 

Employee Compensation’’ (June 2010), 

which lists total compensation for 

management, professional, and related 

occupations as $48.74 per hour and 

administrative support as $23.25 per 

hour. OFCCP estimates that 52% 

percent of the burden hours will be 

management, professional, and related 

occupations and 48% percent will be 

administrative support. We have 

calculated the total estimated 

annualized cost for the obligations 

described above (i.e., those that do not 

fall under the scope of the Paperwork 

Reduction Act) as follows: 

Mgmt. Prof.: 108,288 contractors × 4.5 

hours × .52 × $48.74/hr = $12,350,420 

Adm. Supp.: 108,288 contractors × 4.5 

hours × .48 × $23.25/hr = $ 5,438,223 

Total annualized cost estimate = 

$17,788,643 

Estimated annual average cost per 

establishment is: $17,788,643/108,288 

= $164 

OFCCP has calculated the annual 

average cost per establishment for 

complying with those provisions that 

fall under the Paperwork Reduction Act 

as $396 per contractor establishment. 

See Paperwork Reduction Act 

discussion, infra. This means the total 

estimated annual cost per establishment 

of the proposed rule is approximately 

$560. However, additional elements of 

the proposed rule should reduce the 

cost of compliance for the contractor. 

For instance, OFCCP estimates that 

proposed provisions allowing for 

electronic posting of employee rights 

under Section 4212 could save the 

contractor 10 minutes of administrative 

compliance time per year (0.17 hours × 

$23.25/hr = $4 annual savings per year). 

Proposals for streamlined compliance 

review mechanisms and greater focus on 

reviewing electronic records, rather than 

paper (see Section-by-Section Analysis 

of 60–250.60/300.60, 60–250.81/300.81), 

are also designed to reduce the time the 

contractor and OFCCP spend on 

compliance and enforcement. 

In short, OFCCP believes that the 

myriad benefits discussed in the 

Section-by-Section analysis and in this 

section—bringing veterans and 

contractors together, ensuring that those 

in the workplace understand the 

respective obligations under Section 

4212, providing the contractor a tool to 

measure its affirmative action efforts 

through increased data collection, and 

more efficient compliance reviews— 

more than makes up for the cost we 

have calculated. OFCCP invites 

comments from stakeholders on the 

cost/benefit analysis included in this 

section. 

Regulatory Flexibility Act and 

Executive Order 13272 (Consideration 

of Small Entities) 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601 et seq., (RFA) 

requires agencies promulgating 

proposed rules to prepare an initial 

regulatory flexibility analysis and to 

develop alternatives wherever possible 

when drafting regulations that will have 

a significant impact on a substantial 

number of small entities. The focus of 

the RFA is to ensure that agencies 

‘‘review rules to assess and take 

appropriate account of the potential 

impact on small businesses, small 

governmental jurisdictions, and small 

organizations, as provided by the 

[RFA].’’ 

Based on the analysis below, in which 

OFCCP has estimated the burdens to 

covered small contractors and 

subcontractors in complying with the 

requirements contained in this proposed 

rule, OFCCP believes that this rule will 

not have a significant economic impact 

on a substantial number of small 

Federal contractors and subcontractors 

but invites comments on its analysis, 

and requests that commenters provide 

any additional data they may have on 

costs and benefits. 

The FY 2009 Equal Employment Data 

System Report (EEDS), which compiles 

information on Federal contractors for 

OFCCP, showed that there were 108,031 

Federal contractor and subcontractor 

establishments under OFCCP 

jurisdiction. EEDS information 

concerning the number of contractor 

establishments is derived from the EEO– 

1 Report, which the Equal Employment 

Opportunity Commission submits to 

OFCCP annually. OFCCP also includes 

257 post-secondary institutions under 

its jurisdiction, for a total of 108,288 

contractor establishments. Based on 

data analyzed in the Federal 

Procurement Data System (fpds.gov), 

which compiles data about types of 


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2The Federal Procurement Data System compiles 

data regarding small business ‘‘actions’’ and small 

business ‘‘dollars’’ using the criteria employed by 

SBA to define ‘‘small entities.’’ In FY 2008, small 

business actions accounted for 50% of all Federal 

procurement action. However, deriving a 

percentage of contractors that are small using the 

‘‘action’’ data would overstate the number of small 

contactors because contract actions reflect more 

than just contracts; they include modifications, 

blanket purchase agreement calls, task orders, and 

Federal supply schedule orders. As a result, there 

are many more contract actions than there are 

contracts or contractors. Accordingly, a single small 

contractor might have hundreds of actions, e.g., 

delivery or task orders, placed against its contract. 

These contract actions would be counted 

individually in the FPDS, but represent only one 

small business. 

Also reflected in FPDS, in FY 2008, small 

business ‘‘dollars’’ accounted for 19% of all Federal 

dollars spent. However, deriving a percentage of 

contractors that are small using the ‘‘dollars’’ data 

would understate the number of small contractors. 

Major acquisitions account for a disproportionate 

share of the dollar amounts and are almost 

exclusively awarded to large businesses. The top 

five Federal contractors, all large businesses, 

accounted for over 20% of contract dollars in FY 

2008. As a result, because the largest Federal 

contractors disproportionately represent ‘‘dollars’’ 

spent by the Federal government, the FPDB’s data 

on small ‘‘dollars’’ spent understates the number of 

small entities with which the Federal government 

does business. 

The Department concludes that the percentage of 

all Federal contractors that are ‘‘small’’ is likely 

between 19% and 50%. The upper and lower 

bounds are derived from the FPDS figures on small 

‘‘actions’’ and small ‘‘dollars.’’ The mean of these 

two percentages is 35%, and the Department has 

used this figure to estimate how many of all Federal 

contractors are ‘‘small entities’’ in SBA’s terms. 

3This figure comes from taking the total burden 

for all contractors in the PRA section (1,162,251 

hours) and multiplying it by 35%, which is our 

calculation of the number of contractors which can 

be classified as ‘‘small Federal contractors’’ as 

detailed in this section. 

4This figure comes from taking the total burden 

for all contractors in the EO 12866 section (4.5 

annual hours per contractor establishment, 

multiplied by 108,288 total Federal contractor 

establishments, for a total burden for all contractors 

nationwide of 487,296 hours), and multiplying it by 

35%, which is our calculation of the number of 

contractors which can be classified as ‘‘small 

Federal contractors’’ as detailed in this section. 

contractors, of these 108,288 contractor 

establishments, approximately 35% 

would be ‘‘small entities’’ as defined by 

the Small Business Administration 

(SBA) size standards.2 It should be 

noted that this number of 

‘‘establishments’’ would likely be much 

larger than the number of ‘‘entities’’ or 

‘‘contractors.’’ Entities generally equate 

to businesses, many of which may in 

fact have multiple establishments. 

However, given lack of any other data 

on the number of small Federal 

contractors, for the purposes of the RFA 

analysis OFCCP estimates that this rule 

will affect 37,901 small Federal 

contractors. 

The primary goal of this NPRM is 

increased affirmative action to employ 

and advance in employment protected 

veterans, including proactive 

recruitment of protected veterans for 

jobs with Federal contractors and 

increased awareness by Federal 

contractors’ employees (including 

veterans) and managers of the nondiscrimination and affirmative action 

protections afforded protected veterans. 

The benefits from this proposal 

(discussed in more detail throughout the 

Section-by-Section Analysis and in the 

discussion of Executive Order 12866, 

supra), particularly would accrue to 

veterans who might not have known 

about job openings or might not have 

been hired or promoted. As there were 

almost a million veterans unemployed 

in 2009 and many others not in the 

labor force who would likely want to be 

employed, increased efforts to employ 

veterans could help a significant 

number of veterans. The contractor also 

will benefit from access to a welltrained, job-ready employment pool. 

This goal of increased employment of 

protected veterans is achieved through 

the changes to Part 60–300 outlined 

below. Conforming changes are also 

proposed to 41 Part 60–250 in the event 

that OFCCP learns of Federal contracts 

that are currently in effect that were 

entered into before December 1, 2003 

and not modified since. For purposes of 

this analysis, even if there are a few 

such contracts still in effect, the number 

of contractors affected would be so 

small that any costs and benefits 

resulting from changes to Part 60–250 

would be de minimis. 

The significant benefits to protected 

veterans, as well as the contractor, have 

been discussed extensively in the 

Section-by-Section Analysis section of 

this NPRM and in the discussion of this 

proposal’s conformity with Executive 

Order 12866. Generally, the proposed 

rule will benefit veterans and the 

contractor by: Providing effective 

mechanisms, such as refined mandatory 

job listing requirements and linkage 

agreements with veteran-related 

organizations, so that qualified veterans 

and contractors find each other to their 

mutual benefit; ensuring that those in 

the workplace understand the respective 

obligations under Section 4212; 

providing the contractor with tools, 

through increased data collection, to 

quantifiably measure their affirmative 

action efforts and adjust them for 

maximum effect; and more efficient 

compliance reviews. The estimated 

costs associated with this proposal have 

been detailed in the sections discussing 

Executive Order 12866 and the 

Paperwork Reduction Act, herein. 

Below is a summary of those costs that 

will affect small Federal contractors, as 

defined in this section. 

PRA Costs 

Mgmt. Prof. 406,788 hours 3 × .52 × 

$48.74 = $10,309,961 

Adm. Supp. 406,788 hours × .48 × 

$23.25 = $4,539,754 

Operations & Maintenance Cost (for 

35% of contractors) $146,345 

Total annualized cost estimate = 

$14,996,060 

Estimated average cost per 

establishment is: $14,996,060/37,901 

= $396 

Non-PRA Costs 

Mgmt. Prof.: 170,554 hours 4 × .52 × 

$48.74/hr = $4,322,657 

Adm. Supp.: 170,554 hours × .48 × 

$23.25/hr = $1,903,383 

Total annualized cost estimate = 

$6,226,040 

Estimated annual average cost per 

establishment is: $6,226,040/37,901 = 

$164 

Therefore, the total estimated annual 

cost to small contractors nationwide is 

$21,222,100, or approximately $560 per 

small contractor. 

The same obligations bind prime 

contractors and subcontractors under 

OFCCP jurisdiction. Therefore, for the 

purpose of determining time spent on 

compliance, OFCCP will not 

differentiate between the obligations of 

prime contractors and subsequent tiers 

of subcontractors; OFCCP assumes that 

all contractors, whether prime 

contractor or subcontractor, will spend 

equivalent amounts of time engaging in 

this compliance activity. 

When considering the potential 

economic impact of a proposed 

regulation, one important indicator is 

the cost of compliance in relation to 

revenue of the entity or the percentage 

of profits affected. Id. The universe of 

affected entities is all Federal 

contractors and the universe of affected 

small entities is all small entity 

contractors with 50 or more employees 

(37,901). The cost of this rule per entity 

($560) is not likely to have a significant 

economic impact for any (or a 

substantial number) of these small 

contractors. Although the number of 

small Federal contractors, at 37,901, 

may represent a substantial number of 

Federal contractors and subcontractors, 

OFCCP concludes that this economic 

impact on individual contractors is not 

significant. Further, the 2004 U.S. 

Census Bureau Statistics about Business 

Size (including Small Business), 

Employment Size of Firms, Table 


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5See http://www.census.gov/epcd/www/ 

smallbus.html. 

2a, 5 indicate there are 526,355 Employer 

Firms with 20–99 employees compared 

to 5,255,844 firms with 0 to 19 

employees. Employer firms with 20 to 

500 or more employees equal 629,940 

employers firms. Therefore, U.S. 

employer firms with 20 to 500 

employees represents 11.9% of the total 

employer firms. As stated earlier, the 

threshold for the affirmative action 

provisions of this NPRM is 50 or more 

employees, which will affect 

approximately 11.9% of the employer 

firms. 

Therefore, under 5 U.S.C. 605, OFCCP 

believes that the proposed rule will not 

have a significant economic impact on 

a substantial number of small entity 

contractors but invites comments on its 

analysis. 

Paperwork Reduction Act 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the Department of Labor 

conducts a preclearance consultation 

program to provide the general public 

and Federal agencies with an 

opportunity to comment on proposed 

and continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995 (PRA) 

(44 U.S.C. 3506(c)(2)(A)). This helps to 

ensure that the public understands the 

Department’s collection instructions; 

respondents can provide the requested 

data in the desired format, reporting 

burden (time and financial resources) is 

minimized, collection instruments are 

clearly understood, and the Department 

can properly assess the impact of 

collection requirements on respondents. 

The Department notes that a Federal 

agency cannot conduct or sponsor a 

collection of information unless it is 

approved by OMB under the PRA, and 

displays a currently valid OMB control 

number, and the public is not required 

to respond to a collection of information 

unless it displays a currently valid OMB 

control number. Also, notwithstanding 

any other provisions of law, no person 

shall be subject to penalty for failing to 

comply with a collection of information 

if the collection of information does not 

display a currently valid OMB control 

number. Until any final regulations 

become effective and OFCCP publishes 

a notice announcing OMB’s approval of 

these proposed information collections, 

they will not take effect. 

The information collection 

requirements contained in the existing 

Section 4212 regulations, with the 

exception of those related to complaint 

procedures, are currently approved 

under OMB Control No. 1250–0003 

(Recordkeeping and Reporting 

Requirements-Supply and Service) and 

OMB Control No. 1250–0001 

(Construction Recordkeeping and 

Reporting). The information collection 

requirements contained in the existing 

complaint procedures regulation are 

currently approved under OMB Control 

No. 1250–0002. 

The proposed rule contains 

information collections that are subject 

to review by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995. This proposal 

includes several new requirements 

shown below with their respective 

burden estimates. 

The information collections discussed 

below relate to Federal contractor and 

subcontractor responsibilities under 38 

U.S.C. 4212 as amended and its 

implementing regulations at 41 CFR 60– 

250 and 41 CFR 60–300. OFCCP invites 

the public to comment on whether the 

proposed collections of information: 

(1) Is necessary to the proper 

performance of the agency, including 

whether the information will have 

practical utility; 

(2) Estimates the projected burden, 

including the methodology and 

assumptions used, accurately; and 

(3) Is structured to minimize the 

burden of the collection of information 

on those who are to respond, including 

through the use or appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology (e.g. permitting electronic 

submission of responses.) 

Where estimates are provided or 

assumptions are described, contractors 

and other members of the public are 

encouraged to provide data they have 

that could help OFCCP refine the 

estimates of amount of time needed to 

fulfill specific requirements. 

• 60–250.5/300.5 

Æ Contractor must provide job vacancy 

information to appropriate employment 

service delivery system (ESDS) in usable 

format (¶ 2 of EO Clause). 

• The contractor’s mandatory job listing 

obligations, which is required by 38 U.S.C. 

4212(a)(2)(A) and promulgated in OFCCP’s 

regulations at FR, Vol. 43, No. 204—Friday, 

October 20, 1978, requires federal contractors 

and subcontractors to list their job opening 

with the state or local employment service 

delivery system. To reduce the burden on the 

contractor, it has the flexibility to list its job 

openings at the state or local employment 

service delivery system concurrently with the 

contractor’s use of any other recruitment 

source or effort. Further, to reduce the 

burden, the mandatory job listing 

requirement need not include .(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. 

• The contractor must provide state or 

local employment service delivery system 

information that is sufficient to carry out its 

responsibilities under VEVRAA to give 

protected veterans priority referrals to federal 

contractor employment openings. This has 

always been a requirement under Section 

4212 and its regulations. OFCCP estimates 

that the required gathering of records, 

reporting the job listing, and recordkeeping 

would take 15 minutes per job listing. The 

FY 2009 Equal Employment Data System 

Report (EEDS), which compiles information 

on Federal contractors for OFCCP, showed 

that there were 108,031 Federal contractor 

and subcontractor establishments under 

OFCCP jurisdiction. EEDS information 

concerning the number of contractor 

establishments is derived from the EEO–1 

Report, which the Equal Employment 

Opportunity Commission submits to OFCCP 

annually. OFCCP also includes 257 postsecondary institutions under its jurisdiction, 

for a total of 108,288 contractor 

establishments. The number of listings 

provided by contractors may vary from year 

to year, from a low of zero to a high of one 

per month. OFCCP estimates that on average 

a contractor will provide 2 listings annually, 

or 30 minutes. Therefore, OFCCP estimates 

108,288 × 30/60 = 54,144 total Federal 

contractor hours for gathering of records, 

reporting the job listing, and recordkeeping. 

Æ Contractor must provide ESDS 

additional information, updated on an 

annual basis (¶4 of EO Clause) The current 

regulations require that the contractor 

provide the appropriate state employment 

service with the name and location of each 

of the contractor’s hiring locations. The 

proposed regulations require that the 

contractor provide the state employment 

service with the following additional 

information: (1) Its status as a Federal 

contractor; (2) contact information for the 

contractor hiring official at each location in 

the state; and (3) its request for priority 

referrals by the state of protected veterans for 

job openings at all locations within the state. 

This information shall be updated on an 

annual basis. These three additional items 

are proposed in light of feedback received 

from state employment services and 

congressional testimony citing concerns 

about appropriate interface between federal 

contractors and state and local employment 

service delivery system staff. Using some 

form of electronic means (email, fax, etc), 

OFCCP estimates a total of 15 minutes to give 

the ESDS the information newly required by 

this regulation (status as a federal contractor, 

contact information for the contractor hiring 

official, and the request for priority referrals). 

The proposed regulation also adds a sentence 

clarifying that, if the contractor uses any 

outside job search organizations (such as a 

temporary employment agency) to assist in 

its hiring, the contractor must provide the 

state employment service with the contact 

information for these outside job search 

organizations. OFCCP further estimates 25% 

of contractors, or 27,072, will use outside job 

search organizations, and 5 additional 


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minutes for the contractor to notify state 

employment agencies concerning its outside 

job search organizations. The burden to give 

ESDS additional information is 108,288 × 15/ 

60 = 27,072 hours. The burden to notify the 

state employment service about outside job 

search organizations is 27,072 × 5/60 = 2,256 

hours. The sum of 27,072 + 2,256 = 29,328 

total Federal contractor hours. 

Æ Contractor must maintain records, for 

five years, of the total number of priority 

referral of veterans, and ratio of veteran 

referrals to total referrals (¶ 5 of EO Clause). 

The contractors is already required to keep 

applicant data for either one or two years, 

depending on their size, see 41 CFR 60– 

300.80, thus the only changes proposed are 

that the contractor calculate the ratio of 

preferred veteran referrals and to maintain 

these records for an additional period of 

time. According to the ETA 9002 B Quarterly 

Report from July 1, 2008 to June 30, 2009, 

State employment office staff referred 75,657 

protected veterans (campaign, special 

disabled, and recently separated veterans) to 

Federal contractor job vacancies. However, 

some contractors may receive no referrals 

(and have few or no job postings) while 

others will receive multiple referrals. It is 

expected that computing the ratio for 

multiple referrals is not significantly more 

time consuming than doing a ratio for a small 

number of referrals. OFCCP estimates that the 

contractor will take 30 minutes to analyze the 

ratio of veteran referrals. Therefore, the 

estimated maximum burden hours associated 

with calculating the ratio of veteran referrals 

would be 30 × 75,657/60 = 37,829 total 

Federal contractor hours. 

Contractor must include the entire clause 

verbatim in Federal contracts (.5(d), .5(e)) 

(This is a third party disclosure burden.) A 

contractor may copy/paste the EO Clause 

from the OFCCP regulations into its 

contracts. Assuming each of the federal 

contractor establishments has a single 

contract would equal 108,288 times 1 minute 

of copy/paste time would equal 108,288 

minutes divided by 60 minutes equals 1,805 

total Federal contractor hours. 

Æ Contractor must provide Braille, large 

print, or other versions of notice so that 

visually impaired may read the notice 

themselves (¶ 10 of EO Clause). 

• The FY 2008 VETS–100 report identified 

62,000 Special Disabled Veterans (SDVs). Not 

all SDVs will normally request and 

accommodation, therefore the estimate is 

10% of the SDVs may request an 

accommodation due to visual impairment. 

OFCCP estimates that it takes 5 minutes for 

the contractor to receive the accommodation 

request and 5 minutes for recordkeeping and 

providing the notice in an alternative format, 

for a total of 10 minutes per request. 

Therefore, 10 minutes times 6,200 SDVs 

equals 62,000 minutes divided by 60 minutes 

equals 1,033 total Federal contractor hours. 

Æ Posting of notice for employees working 

at a site other than the contractor’s physical 

location. (¶ 10 of EO Clause). OFCCP 

estimates one or more offsite locations at 

10% of contractors, or 10,829, and posting a 

notice on the company’s Web site so that 

offsite employees can access the notice. No 

additional hours for creation of the notice 

since the notice is already required. OFCCP 

estimates 5 minutes for each contractor to 

post the notice on its Web site. Therefore, 

10,829 × 5 minutes/60 = 902 total Federal 

contractor hours. 

Æ Contractor must state in all solicitations 

and advertisements that it is an EEO 

employer of veterans (¶13 of EO Clause). 

(This is a third party disclosure burden.) The 

contractor already must state that it is an EEO 

employer due to many state and federal 

requirements, including the Executive Order 

EEO requirements. This revision would 

simply require the contractor to add 

protected veterans to the list of categories of 

protected EEO groups. OFCCP estimates 1 

minute additional burden per contractor, or 

108,288 × 1 minute/60 = 1,805 total Federal 

contractor hours. 

• 60–250.41/300.41 

b Contractor must inform employees who 

do not work at contractor’s physical 

establishment regarding the availability of 

AAP for review. OFCCP estimates one or 

more offsite location at 10% of contractors, 

or 10,829, and posting a notice on the 

company’s Web site so that offsite employees 

can access the notice to find out about the 

availably of the AAP to review. OFCCP 

estimates 5 minutes to create this notice. 

(Posting time is accounted for in above ¶10 

of EO Clause, ‘‘Posting of notice for 

employees working at a site other than the 

contractor’s physical location’’). Therefore, 

10,829 × 5 minutes/60 = 902 total Federal 

contractor hours. 

• 60–250.42/300.42 

b The proposed regulation would require 

that the contractor invite all applicants to 

self-identify as a protected veteran generally 

prior to the offer of employment, and invite 

individuals who receive job offers to indicate 

the particular category or categories of 

protected veteran to which they belong 

(.42(a)). In Appendix B of the proposed 

regulation, OFCCP provides sample 

invitations to self-identify so that the 

contractor will not have the burden of 

creating these invitations. We estimate it will 

take 1 minute for the contractor to copy and 

paste the sample invitations to self-identify 

from the regulations into a separate 

document that it can store electronically and 

include in electronic applications or print 

out in paper applications as needed. 

Multiplying 1 minute by the 108,288 

establishments equals 108,288 minutes/60 = 

1,805 total Federal contractor hours adapting 

the self-identification forms in Appendix B 

for contractor use. 

OFCCP estimates that protected veteran 

applicants will have a minimal burden 

complying with this proposal in the course 

of completing their application for 

employment with a contractor—specifically, 

providing their separation form, the DD–214, 

and checking the appropriate boxes in the 

self-identification forms. To calculate the 

total number of protected veteran applicants, 

OFCCP reviewed DOL/ETA’s 9002 B 

Quarterly Reports for the period July 1, 2008 

to June 30, 2009, which shows 75,657 total 

priority referrals to federal contractors 

nationwide. We therefore estimate 75,657 

applicants. At 1 minute per applicant, the 

total applicant burden would be 75,657 × 1/ 

60 = 1261 total hours for documenting status 

as a protected veteran. Of course, veterans 

stand to benefit from this minimal time 

spent, as it will notify contractors of their 

status and the possibility that that may 

benefit from the protections of Section 4212. 

Further, the self-identification process is 

entirely voluntary, and veteran applicants 

may opt not to participate, and thus take on 

zero burden. 

b Contractor is required to seek advice of 

applicants regarding reasonable 

accommodations, when applicable (.42(d)). 

We estimate 1 minute for the contractor to 

note those applicants that have identified as 

a disabled veteran and to make the initial 

inquiry with the applicant about proper 

placement and reasonable accommodation. 

The FY 2008 VETS–100 report identified 

62,000 Special Disabled Veterans (SDVs). 

Thus, there will be a total of 62,000 minutes, 

or 1,033 total Federal contractor hours 

making this initial inquiry. OFCCP is aware 

that the contractor will undertake time to 

process these requests and keep records of 

these requests. However, processing these 

requests is covered by the ADA and 

recordkeeping is covered by Section 503 

regulations, at 41 CFR 60–741.69. 

OFCCP estimates that disabled veteran 

applicants will have a small amount of 

burden providing documentation concerning 

reasonable accommodation. The FY 2008 

VETS–100 report identified 62,000 Special 

Disabled Veterans (SDVs). Not all SDVs will 

normally request and accommodation. 

OFCCP estimates 10% of referrals will be 

associated with an accommodation request 

and that the affected disabled veterans will 

have on hand the needed documentation. 

Thus the only burden will be in providing 

the documentation to the contractor which is 

estimated to take 1 minute. We therefore 

estimate 62,000 × 10% = 6,200 × 1 minute/ 

60 = 103 total hours of burden on certain 

applicants for providing documentation of 

reasonable accommodation. Again, however, 

disabled veterans stand to benefit from this 

disclosure requirement if they choose to 

participate, as it is intended to help the 

veteran secure an accommodation that will 

allow him or her to perform the job. 

b Contractor must maintain selfidentification data (.42(e)). The contractor 

was required to maintain self-identification 

data prior to this proposed regulation. 

Reviewing the entire data collection process 

outlined in the first paragraph of this section, 

we estimate that simply maintaining the 

completed self-identification forms will take 

1 minute per contractor, or 108,288 minutes/ 

60 = 1,805 total Federal contractor hours. 

• 60–250.44/300.44 

b Contractor must provide Braille, large 

print, or other versions of AA policy 

statement so that visually impaired may read 

the notice themselves (.44(a)). The FY 2008 

VETS–100 report identified 62,000 Special 

Disabled Veterans (SDVs). Not all SDVs will 

normally request and accommodation, 

therefore the estimate is 10% of the SDVs 

may request an accommodation due to visual 

impairment. OFCCP estimates that it takes 5 


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minutes for the contractor to receive the 

accommodation request and 5 minutes for 

recordkeeping and providing this document 

in an alternative format, for a total of 10 

minutes. Therefore, 10 minutes times 6,200 

SDVs equals 62,000 minutes divided by 60 

minutes equals 1,033 total Federal contractor 

hours complying with this paragraph. 

b Contractor must review personnel 

processes annually, and is required to go 

through a specific analysis for doing so 

which would include: (1) Identifying the 

vacancies and training programs for which 

protected veteran applicants and employees 

were considered; (2) providing a statement of 

reasons explaining the circumstances for 

rejecting protected veterans for vacancies and 

training programs and a description of 

considered accommodations; and (3) 

describing the nature and type of 

accommodations for special disabled 

veterans who were selected for hire, 

promotion, or training programs (.44(b)). 

• The contractors needs to identify 

vacancies as part of the review. According to 

the ETA 9002 B Quarterly Report from July 

1, 2008 to June 30, 2009, State employment 

office staff referred 75,657 protected veterans 

(campaign, special disabled and recently 

separated veterans) to Federal contractor job 

vacancies. Therefore, OFCCP estimates 

Federal contractors and subcontractors will 

need to identify approximately 75,657 job 

vacancy listings during the above time period 

times 15 minutes per listing equals 75,657 × 

15 minutes = 1,134,855 minutes/60 minutes 

= 18,914 total Federal contractor hours for 

gathering of records and recordkeeping. 

• OFCCP estimates 15 minutes per 

contractor per year to identify training 

programs for veteran applicants and 

employees, which means 15 × 108,288/60 = 

27,072 total Federal contractor hours. 

• For providing a statement of reasons 

e×plaining the circumstances for rejecting 

protected veterans for vacancies and training 

programs and a description of considered 

accommodations, OFCCP estimates 30 

minutes per contractor per year, or 30 × 

108,288/60 = 54,144 total Federal contractor 

hours. 

• For describing the nature and type of 

accommodations for disabled veterans who 

were selected for hire, promotion, or training 

programs. The FY 2008 VETS–100 report 

identified 62,000 Special Disabled Veterans 

(SDVs). Thus, there will be a total of 62,000 

inquiries. OFCCP estimates 10% of referrals 

leading to an accommodation request, and 30 

minutes per accommodation request. 

Therefore, the hours would be 30 × 62,000 × 

10%/60 = 3,100 total Federal contractor 

hours. 

b Contractor must review physical and 

mental job qualifications annually to ensure 

that they are job-related and consistent with 

business necessity (.44(c)(1)). This provision 

exists in the current VEVRAA regulations (as 

well as the Section 503 regulations); the only 

difference is that the proposed regulations 

call for the review to occur ‘‘annually,’’ rather 

than ‘‘periodically.’’ Therefore, all existing or 

previous contractors should have experience 

in performing the required review. 

For those contractors who have not 

previously performed the required review, 

OFCCP estimates that 1% of federal 

contractors are first-time contractors required 

to develop initial standards for the employee 

workforce. Therefore, 108,288 total federal 

contractors times 1% equals 1,083 

contractors. According to the Bureau of Labor 

Statistics (BLS), the 2010 Standard 

Occupational Classification (SOC) system is 

used by Federal statistical agencies to classify 

workers into occupational categories for the 

purpose of collecting, calculating, or 

disseminating data. All workers are classified 

into one of 840 detailed occupations 

according to their occupational definition. To 

facilitate classification, detailed occupations 

are combined to form 461 broad occupations, 

97 minor groups, and 23 major groups. 

Detailed occupations in the SOC with similar 

job duties, and in some cases skills, 

education, and/or training, are grouped 

together. OFCCP estimates that the average 

federal contractor will only have 20% of the 

461 broad occupations in their workforce, 

therefore, on average, the contractor will 

have 92 occupations for which to conduct an 

annual review. OFCCP estimates that the 

contractor will take 10 minutes to review 

mental and physical job qualifications for 

each of the average 92 occupations. 

Therefore, 92 occupations times 10 minutes 

equals 920 minutes, multiplied by the 

estimated 1,083 first time contractors/60 

minutes per hour equals a total of 16,606 

Federal contractor hours for first-time 

contractors spent complying with this 

paragraph. 

OFCCP estimates that 90% of contractors, 

or 97,459, will have no changes to their job 

descriptions in a given year. Therefore, for 

contractors that have already performed the 

required review as set forth in the current 

regulations, and have not changed the job 

descriptions or physical/mental job 

qualifications, OFCCP estimates that the time 

required to update the reviews is 0.5 minutes 

per job title × 92 occupations = 46 × 97,459/ 

60 = 74,719 total Federal contractor hours. 

OFCCP estimates that the remaining 9% of 

contractors, or 9,746, will have some changes 

to their job descriptions in a given year. We 

estimate this 9% of contractors will have 

changes to an average of 20% of their job 

titles, and that it will take 10 minutes on 

average to review the mental and physical job 

qualifications for each. Therefore, 10 minutes 

× (20% of 92 job titles) × 9,746 contractors/ 

60 minutes per hour = 29,888 total Federal 

contractor hours. 

b Contractor must document the results of 

its annual review of physical and mental job 

qualifications, and document any 

employment action taken on the basis of a 

believed ‘‘direct threat.’’ (.44(c)). 

OFCCP estimates that it will take the 

contractor 1 minute per job qualification to 

save the information for recordkeeping 

purposes. Therefore, 1 minute × 92 

occupations equals 92 minutes × 108,288 

contractors/60 minutes equals 166,042 total 

Federal contractor hours. 

b Contractor must enter into linkage 

agreement with nearest LVER, one of the 

organizations listed in (f)(1), and an 

organization listed in the National Resource 

Directory (.44(f)(1)). 

Therefore, each contractor must enter into 

3 linkage agreements. Linkage Agreement 

means an agreement describing the 

connection between the contractor and 

appropriate recruitment and/or training 

sources. 

The contractor has a variety of ways to 

establish VEVRAA linkage agreements. The 

contractor can receive nationwide assistance 

from OFCCP Compliance Officers (COs) to 

help it establish the 3 linkage agreements. 

Secondly, during the normal course of an 

OFCCP compliance review, the CO will 

contact all appropriate linkage resources to 

obtain specific information on availability of 

applicants and potential trainees for 

positions in the contractor’s labor force. If 

possible, the CO will arrange a meeting 

between the recruitment/referral resources 

and the contractor. 

Where a resource indicates that it can 

provide applicants or trainees, the CO will 

include the contractor’s commitment to 

utilize the linkage source along with other 

actions in the Letter of Commitment or in the 

Conciliation Agreement. 

OFCCP estimates that 30% of the 

contractors, or 32,486, will accept OFCCP 

assistance to help set up their linkage 

agreements and it will take these contractors 

on average 1.5 hours to establish one new 

linkage agreement. For the remaining 75,802 

contractors, OFCCP estimates that 

establishing a new linkage agreement will 

take an average of 5.5 hours. Beyond the first 

year after this rule becomes effective, it is 

estimated the contractor will set up one new 

agreement a year. It is estimated that 

maintaining a single, ongoing linkage 

agreement will take an average of 15 minutes 

for all 108,288 contractors. 

For those contractors setting up linkage 

agreements on their own, OFCCP estimates 

that on average, a contractor will establish 

one new agreement and maintain two 

ongoing agreements in a given year, which 

would be 5.5 hours + .25 hours + .25 hours 

= 6 hours. If the contractor establishes 

linkage agreements with OFCCP’s assistance, 

we estimate an annual average of 1.5 hours 

per contractor to establish a new linkage 

agreement and .25 hours to maintain each of 

the two ongoing linkage agreements, which 

would be 1.5 hours + .25 hours + .25 hours 

= 2 hours. Therefore, 6 hours times 75,802 

contractors equals 454,812 hours, and 32,486 

times 2 hours equals 64,972 hours, for a total 

of 519,784 Federal contractor hours to 

establish and maintain three linkage 

agreements under the proposed NPRM. 

b Contractor must send written 

notification of company AAP policies to 

subcontractors, vendors, and suppliers 

(.44(f)(1)). 

OFCCP estimates that it would take the 

contractor 5 minutes to prepare the 

notification and notify its subcontractors via 

the Internet in a group e-mail, and 1 minute 

to add or subtract any additions or deletions 

to the group. Therefore, 6 minutes per 

contractor times 108,288 equals 649,728 

minutes, divided by 60 minutes equals 

10,829 total Federal contractor hours. 

b Contractor must document its review 

outreach and recruitment efforts (.44(f)(3)). 

OFCCP estimates that documenting this 

review of outreach and recruitment will take 

5 minutes annually. OFCCP further estimates 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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that 1% of federal contractors are first-time 

contractors during an abbreviated AAP year, 

therefore would not be able to complete an 

annual outreach and recruitment effort. 

Therefore, reducing the 108,288 by 1% (1,083 

contractors) equals 107,205 contractors, at 5 

minutes each equals 536,025 minutes, or 

8,934 total Federal contractor hours. The 

burden and cost of actually conducting the 

review does not fall under the PRA, and is 

instead set forth in the Sections on Executive 

Order 12866 and the Regulatory Flexibility 

Act. 

b Contractor must document (f)(1) linkage 

agreements and maintain these documents 

for 5 years (.44(f)(4)). 

Since establishing a linkage agreement 

includes its documentation, there is no 

additional burden for this paragraph beyond 

that already set forth in the burden 

calculation for .44(f)(1). 

b Contractor is required to undertake 

several efforts to internally disseminate its 

EEO policy, including, if the contractor is a 

party to a collective bargaining agreement, 

meeting with union officials to inform them 

of the policy. (This is a third party disclosure 

burden). (.44(g)): 

The January 22, 2010 Bureau of Labor 

Statistics News Release states that in 2009, 

union membership was 12.3%. In its most 

recent Supply and Service (S&S) PRA 

Justification, OFCCP estimated 30 minutes 

composition time for union notification. For 

this NPRM, we estimate 15 minutes 

preparation for this new notification 

requirement, as contractors party to a 

collective bargaining agreement already have 

a notification template in place. We also 

estimate 15 additional minutes to meet with 

union officials as they already do so in S&S. 

The total third party disclosure burden hours 

would be 108,288 × 12.3% × 30 minutes/60 

= 6,660 total Federal contractor hours. 

The burden and cost of other requirements 

of .44(g) does not fall under the PRA, and is 

instead set forth in the Sections on Executive 

Order 12866 and the Regulatory Flexibility 

Act. 

b Contractor must document internal 

dissemination efforts in (g), retain these 

documents for 1–2 years (.44(g)(3)) 

Since much of the documentation will 

occur during the preparation time, OFCCP 

estimates an additional 5 minutes of 

recordkeeping per contractor, which means 5 

minutes × 108,288 = 541,440 minutes/60 = 

9,024 total Federal contractor hours. 

b Contractor must document the actions 

taken to comply with audit and reporting 

system, retain these documents for 1–2 years 

(.44(h)) 

Since much of the documentation will 

occur during the annual audit and reporting, 

OFCCP estimates an additional 5 minutes 

recordkeeping burden per contractor, which 

means 5 minutes × 108,288 = 541,440 

minutes/60 = 9,024 total Federal contractor 

hours. 

b Contractor must identify responsible 

official for AAP on all internal and external 

communications regarding the AAP (.44(i)) 

That official should already be in place for 

current contractors. For 1% first time 

contractors, 108,288 × 1% = 1,083 

contractors, OFCCP estimates 5 minutes per 

contractor, or 1,083 × 5 minutes = 5,415 

minutes/60 = 90 total Federal contractor 

hours 

b Contractor must document its training 

efforts as set forth by the regulation, and 

maintain these documents as required by 60– 

250.80/60–300.80 (.44(j)). 

OFCCP estimates that much of the 

documentation will be included in the 

training preparation time. OFCCP estimates 

an additional 5 minutes recordkeeping time 

per contractor, which means 5 minutes × 

108,288 = 541,440 minutes/60 = 9,024 total 

Federal contractor hours. The burden and 

cost of the actual training preparation and 

conducting the training does not fall under 

the PRA, and is instead set forth in the 

Sections on Executive Order 12866 and the 

Regulatory Flexibility Act. 

b Contractor must make several 

quantitative tabulations and comparisons 

using referral data, applicant data, hiring 

data, and the number of job openings; must 

maintain these records for 5 years (.44(k)) 

(1) The number of priority referrals of 

veterans protected by this part that the 

contractor received from applicable 

employment service delivery system(s); 

(2) The number of total referrals that the 

contractor received from applicable 

employment service delivery system(s); 

(3) The ratio of priority referrals of veterans 

to total referrals (referral ratio); 

(4) The number of applicants who selfidentified as protected veterans pursuant to 

§ 60–300.42(a), or who are otherwise known 

as protected veterans; 

(5) The total number of job openings and 

total number of jobs filled; 

(6) The ratio of jobs filled to job openings; 

(7) The total number of applicants for all 

jobs; 

(8) The ratio of protected veteran 

applicants to all applicants (applicant ratio); 

(9) The number of protected veteran 

applicants hired; 

(10) The total number of applicants hired; 

and 

(11) The ratio of protected veterans hired 

to all hires (hiring ratio). 

The calculations for #5, 6, 7, and 10 are 

already included in the Executive Order 

AAP. The calculations for #9 are included in 

the VETS–100/100A report. Therefore, there 

is no additional burden for #5, 6, 7, 9, and 

10. 

The remaining calculations, for #1, 2, 3, 4, 

8, and 11, OFCCP estimates at 1 minute each 

per contractor, or 6 minutes recordkeeping 

time per contractor, which means 6 minutes 

× 108,288 = 649,728 minutes/60 = 10,829 

total Federal contractor hours. 

• 60–250.45/300.45 

b Contractor must set benchmarks for hiring 

annually, which would include reviewing 

numerous data sources. Contractor must 

document the benchmarks it sets and the 

specific criteria it uses, and maintain these 

records for 5 years. The non-documenting 

burden and cost associated with the actual 

setting of the benchmark does not fall under 

the PRA, and is instead set forth in the 

Sections on Executive Order 12866 and the 

Regulatory Flexibility Act. 

OFCCP estimates 30 minutes 

recordkeeping time per contractor 

documenting the benchmark calculations, 

which means 30 minutes × 108,288/60 = 

54,144 total Federal contractor hours. 

• 60–250.60/300.60 

b Contractor must provide documents to 

OFCCP on-site or off-site at OFCCP’s request, 

not at the contractor’s option (.60(a)(3)) 

These hours not included in burden as 

they are excepted under 5 CFR 1320.4(a)(2) 

(‘‘an administrative action, investigation, or 

audit involving an agency against specific 

individuals or entities’’). 

b New procedure for pre-award compliance 

evaluations (.60(d)) 

These hours not included in burden as 

they are excepted under 5 CFR 1320.4(a)(2) 

(‘‘an administrative action, investigation, or 

audit involving an agency against specific 

individuals or entities’’). 

• 60–250.80/300.80 

b See new 5 year recordkeeping 

requirements in previous sections. 

No additional burden hours as they are 

included in the individuals calculations 

above. 

• 60–250.81/300.81 

b Contractor must provide off-site access 

to documents if requested by OFCCP. Such 

records are never requested except during the 

course of a specific investigation of a 

particular contractor. 

Consequently, these hours not included in 

burden as they are excepted under 5 CFR 

1320.4(a)(2) (‘‘an administrative action, 

investigation, or audit involving an agency 

against specific individuals or entities’’). 

b Contractor must specify to OFCCP all 

formats in which its records are available. 

These hours not included in burden as 

they are excepted under 5 CFR 1320.4(a)(2) 

(‘‘an administrative action, investigation, or 

audit involving an agency against specific 

individuals or entities’’). 

The Department has submitted a copy 

of the information collections associated 

with this proposed rule to the Office of 

Management and Budget (OMB) in 

accordance with 44 U.S.C. 3507(d) for 

review and approval. In addition to 

filing comments with OFCCP, interested 

persons may submit comments about 

the information collections, including 

suggestions for reducing their burden, to 

the Office of Information and Regulatory 

Affairs, OMB, New Executive Office 

Building, 725 17th Street NW., Room 

10235, Washington, DC 20503. 

Attention: Desk Officer for DOL/OFCCP. 

To ensure proper consideration 

comments to OMB should reference ICR 

reference number: [insert the number 

from ROCIS when OFCCP creates the 

package]. Upon receiving OMB approval 

of the new information, the Department 

will submit non-substantive change 

request to OMB Control Numbers ll 

in order to remove regulatory citations 

for any information collected purely 

under the new collection. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
23388 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN

Burden description Section of proposed 

regulation 

One-time burden hours per 

contractor 

Recurring burden hours per 

contractor 

Recurring burden hours per 

element 

Contractor must provide job 

vacancy information to appropriate employment service delivery system (ESDS) 

in usable format (¶ 2 of EO 

Clause).

60–250.5/300.5 ............................................. 30 minute per contractor. 

Total Hours 54,144.

Contractor must provide 

ESDS additional information, updated on an annual 

basis (¶ 4 of EO Clause).

60–250.5/300.5 ............................................. 15 minutes reporting burden per contractor for 

ESDS. Subtotal Hours 

27,072.

5 minutes reporting burden 

per contractor for outside 

job search. Subtotal 

Hours 2,256.

Total Hours 29,328. 

Contractor must maintain 

records, for five years, of 

the total number of, priority 

referral of veterans (already must keep applicant 

data), and ratio of veteran 

referrals to total referrals 

(¶ 5 of EO Clause).

60–250.5/300.5 ............................................. ............................................. 30 minutes per referral. 

Total Hours 37,829. 

Contractor must include the 

entire clause verbatim in 

Federal contracts (.5(d), 

.5(e)).

60–250.5/300.5 ............................................. 1 minute third party disclosure burden per contractor. Total Hours 1,805.

Contractor must provide 

Braille, large print, or other 

versions of notice so that 

visually impaired may read 

the notice themselves (¶ 10 

of EO Clause)..

60–250.5/300.5 ............................................. ............................................. 10 minutes per accommodation request. Total 

Hours 1,033. 

Contractor must provide notice to offsite employees 

(¶ 10 of EO Clause).

60–250.5/300.5 5 minutes per contractor. 

Total Hours 902.

Contractor must state in all 

solicitations and advertisements that it is an EEO 

employer of veterans (¶ 13 

of EO Clause).

60–250.5/300.5 1 minute third party disclosure burden per contractor. Total Hours 1,805.

Contractor must inform employees who do not work 

at contractor’s physical establishment regarding the 

availability of AAP for review (.41).

60–250.41/300.41 5 minutes per contractor. 

Total Hours 902.

Contractor must invite all applicants to self-identify as 

protected veteran prior to 

offer of employment 

(.42(a)).

60–250.42/300.42 ............................................. ............................................. 1 minute per application. 

Total Hours 1,805. 

Contractor is required to 

seek advice of applicants 

regarding appropriate accommodations, when applicable (.42(d)).

60–250.42/300.42 ............................................. ............................................. 1 minute per accommodation. Total Hours 1,033. 

Contractor must maintain 

self-identification data 

(.42(e)).

60–250.42/300.42 ............................................. 1 minute per contractor. 

Total Hours 1,805.

Contractor must provide 

Braille, large print, or other 

versions of AA policy statement so that visually impaired may read the notice 

themselves (.44(a)).

60–250.44/300.44 ............................................. ............................................. 10 minutes per accommodation request. Total 

Hours 1,033. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23389 

TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN—Continued 

Burden description Section of proposed 

regulation 

One-time burden hours per 

contractor 

Recurring burden hours per 

contractor 

Recurring burden hours per 

element 

Contractor must review personnel processes annually, 

and is required to go 

through a specific analysis 

for doing so which would 

include: (1) identifying vacancies and training programs; (2) providing a 

statement of reasons for 

rejecting protected veterans; and (3) describing 

the nature and type of accommodations for (special) 

disabled veterans (.44(b)).

60–250.44/300.44 ............................................. 15 minutes per contractor 

(training) Subtotal Hours 

27,072.

30 minutes per contractor 

(statement of reasons) 

Subtotal Hours 54,144.

15 minutes per job listing 

(vacancies). Subtotal 

Hours 18,914. 

30 minutes per accommodation request Subtotal 

Hours 3,100. 

Total Hours 103,230. 

.5 minutes per occupation 

(no changes). Subtotal 

Hours 74,719. 

10 minutes per occupation, 

20% of occupations. Subtotal Hours 29,888. 

Total Hours 121,213. 

1 minute per occupation. 

Total Hours 166,042. 

Contractor must review physical and mental job qualifications annually (.44(c))..60–250.44/300.44 10 minutes per occupation 

for first time contractors. 

Subtotal Hours 16,606.

.............................................

Contractor must document 

the results of its annual review of physical and mental job qualifications, and 

document any employment 

action taken on the basis 

of a believed ‘‘direct 

threat.’’ (.44(c)).

60–250.44/300.44 ............................................. .............................................

Contractor must enter into 

linkage agreement with 

nearest LVER, one of the 

organizations listed in 

(f)(1), and an organization 

listed in the National Resource Directory (.44(f)(1)).

60–250.44/300.44 ............................................. 2 hours per contractor with 

OFCCP assistance. Subtotal Hours 64,972.

6 hours per contractor without OFCCP assistance. 

Subtotal Hours 454,812.

Total Hours 519,784. 

Contractor must send written 

notification of company 

AAP policies to subcontractors, vendors, and 

suppliers (.44(f)(1)).

60–250.44/300.44 ............................................. 6 minutes per contractor. 

Total Hours 10,829.

Contractor must review outreach and recruitment efforts on an annual basis 

and evaluate their effectiveness; contractor must 

identify and implement further outreach efforts if existing efforts are found ineffective (.44(f)(3)).

60–250.44/300.44 ............................................. 5 minutes per contractor 

(non first time contractors). Total Hours 8,934.

If the contractor is a party to 

a collective bargaining 

agreement it must meet 

with union officials to inform them of the policy 

(.44(g)).

60–250.44/300.44 ............................................. 30 minutes per unionized 

contractor. Total third 

party disclosure burden 

hours 6,660.

Contractor must document 

internal dissemination efforts in (g), retain these 

documents for 1–2 years 

(.44(g)(3)).

60–250.44/300.44 ............................................. 5 minutes per contractor. 

Total Hours 9,024.

Contractor must document 

the actions taken to comply with audit and reporting 

system, retain these documents for 1–2 years 

(.44(h)).

60–250.44/300.44 ............................................. 5 minutes per contractor. 

Total Hours 9,024.


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
23390 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN—Continued 

Burden description Section of proposed 

regulation 

One-time burden hours per 

contractor 

Recurring burden hours per 

contractor 

Recurring burden hours per 

element 

Contractor must identify responsible official for AAP 

on all internal and external 

communications regarding 

the AAP (.44(i)).

60–250.44/300.44 5 minutes per first time 

contractor. Total Hours 

90.

Contractor must document its 

training efforts as set forth 

by the reg, and maintain 

these documents for 1–2 

years (.44(j)).

60–250.44/300.44 ............................................. 5 minutes per contractor. 

Total Hours 9,024.

Contractor must make several quantitative tabulations 

and comparisons using referral data, applicant data, 

hiring data, and the number of job openings; must 

maintain these records for 

5 years (.44(k)).

60–250.44/300.44 ............................................. 6 minutes per contractor. 

Total Hours 10,829.

Contractor must document 

the benchmarks it sets and 

the specific criteria it uses, 

and maintain these records 

for 5 years (.45).

60–250.45/300.45 ............................................. 30 minutes per contractor. 

Total Hours 54,144.

Total Recordkeeping 

burden hours.

1,122,653 

Total Reporting burden 

hours.

29,328 

Total Third Party burden 

hours.

10,270 

Total all hours ................ 1,162,251 

TABLE 2—BURDEN FOR PROTECTED VETERANS

Burden description Section of proposed 

regulation Burden hours per protected veteran 

Protected veteran must provide DD–214 to contractor to 

document status as a protected veteran.

60–250.42/300.42 1 minute per individual. Total hours 1,261. 

Disabled veteran must provide documentation for reasonable accommodation.60–250.42/300.42 1 minute per individual. Total hours 103. 

Total Burden Hours ........................................................ .................................... 1,364. 

The estimated annualized cost to 

respondent contractors is based on 

Bureau of Labor Statistics data in the 

publication ‘‘Employer Costs for 

Employee Compensation’’ (June 2010), 

which lists total compensation for 

management, professional, and related 

occupations as $48.74 per hour and 

administrative support as $23.25 per 

hour. OFCCP estimates that 52% 

percent of the burden hours will be 

management, professional, and related 

occupations and 48% percent will be 

administrative support. We have 

calculated the total estimated 

annualized cost as follows: 

Mgmt. Prof. 1,162,251 hours × .52 × 

$48.74 = $29,457,019 

Adm. Supp. 1,162,251 hours × .48 × 

$23.25 = $12,970,721 

Operations & Maintenance Cost (see 

discussion below) $ 418,129 

Total annualized cost estimate = 

$42,845,869 

Estimated average cost per 

establishment is: $42,845,869/108,288 

= $396 

Operations and Maintenance Costs 

OFCCP estimates that the contractor 

will have some operations and 

maintenance costs in addition to the 

time burden calculated above associated 

with this collection. 

60–250.5/300.5 

Contractor must provide EO Clause 

notices to employees and applicants, 

including alternative formats such as 

copy of Braille, large print, or other 

versions of notice so that visually 

impaired protected veterans may read 

the notice themselves (¶ 10 of EO 

Clause). OFCCP estimates that the 

contractor will have some operations 

and maintenance cost associated with 

posting the EO Clause. We estimate an 

average copying cost of 10 cents per 

page. We estimate the average size of the 

EO Clause to be 3 pages. The estimated 

total cost to contractors will be: 3 pages 

× $.10 × 108,288 Federal contractor 

establishments = $32,486. 

OFCCP estimates that the contractor 

will have some operations and 

maintenance costs associated with 

providing the EO Clause in an 

alternative format. We estimate that the 

cost of an alternative format, such as 

Braille or audio, to be $1.00 per 

contractor. The estimated total cost to 

contractors will be: $1.00 × 108,288 

Federal contractor establishments = 

$108,288. 

60–250.42/300.42 

OFCCP estimates that the contractor 

will have some operations and 

maintenance cost associated with the 

invitation to self-identify. The 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23391 

contractors must invite all applicants 

with the pre-offer invitation, and must 

also invite those individuals who were 

offered positions and declared 

themselves protected veterans with the 

post-offer invitation. Given the 

increasingly widespread use of 

electronic applications, any contractor 

that uses such applications would not 

incur copy costs. Therefore, we estimate 

1 page for the pre-offer invitation 

printed for 10 applicants per year, and 

2 pages for the post-offer invitation 

printed for 2 applicants per year. We 

also estimate an average copying cost of 

10 cents per page. The estimated total 

cost to contractors will be: pre-offer— 

108,288 × 1 × 10 × $.10 = $108,288; postoffer—108,288 × 2 × 2 × $10 = $43,315; 

total cost $108,288 + $43,315 = 

$151,603. 

60–250.44/300.44 

Contractor must provide Braille, large 

print, or other versions of AA policy 

statement so that visually impaired may 

read the notice themselves (.44(a)). 

OFCCP estimates that the contractor 

will have some operations and 

maintenance costs associated with 

providing the AA policy statement. We 

estimate that the cost of an alternative 

format, such as Braille or audio, to be 

$1.00 per contractor. The estimated total 

cost to contractors will be: $1.00 × 

108,288 Federal contractor 

establishments = $108,288. 

60–250.44/300.44 

Contractor must provide its AAP to 

OFCCP during a desk audit. For Supply 

& Service compliance evaluations, the 

contractor copies its AAPs and mails the 

AAPs to OFCCP. We estimate an average 

copying cost of $.07 per page. We 

estimate the average size of an AAP to 

be 7 pages. The estimated total copying 

cost to contractors will be: 7 pages × 

$.07 × 5,004 (FY 2009 Compliance 

Evaluations) = $2,452. In addition, we 

estimate an average mailing cost of 

$3.00 per contractor. The total mailing 

cost for contractors will be $3.00 × 5,004 

= $15,012. The total estimated costs 

would be $2,452 + $15,012 = $17,464. 

TABLE 3—OPERATIONS AND MAINTENANCE COSTS

Contractor must provide EO Clause to employees and applicants (¶ 10 of EO Clause). .............................. 60–250.5/300.5 $32,486 

Contractor must provide Braille, large print, or other versions of EO Clause so that visually impaired may 

read the notice themselves (¶ 10 of EO Clause). ........................................................................................ 60–250.5/300.5 108,288 

Contractor must invite all applicants to self-identify as protected veteran prior to offer of employment 

(.42(a)). ......................................................................................................................................................... 60–250.42/300.42 151,603 

Contractor must provide Braille, large print, or other versions of AA policy statement so that visually impaired may read the notice themselves (.44(a)). ......................................................................................... 60–250.44/300.44 108,288 

Copying and mailing costs of AAPs (.44) ....................................................................................................... 60–250.44/300.44 17,464 

Total O&M Costs ...................................................................................................................................... ................................ 418,129 

These paperwork burden estimates 

are summarized as follows: 

Type of Review: New collection 

(Request for new OMB Control 

Number). 

Agency: Office of Federal Contract 

Compliance Programs, Department of 

Labor. 

Title: Disclosures and Recordkeeping 

Under Affirmative Action and 

Nondiscrimination Obligations of 

Contractors and Subcontractors 

Regarding Special Disabled Veterans, 

Veterans of the Vietnam Era, Disabled 

Veterans, Recently Separated Veterans, 

Active Duty Wartime or Campaign 

Badge Veterans, and Armed Forces 

Service Medal Veterans. 

OMB ICR Reference Number: [Provide 

from ROCIS]. 

Affected Public: Business or other forprofit; individuals. 

Estimated Number of Annual 

Responses: [Provide total from ROCIS]. 

Frequency of Response: On occasion. 

Estimated Total Annual Burden 

Hours: 1,163,615. 

Estimated Total Annual Burden Cost 

(Start-up, capital, operations, and 

maintenance): $418,129. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by Section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This rule will not 

result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of the United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Unfunded Mandates Reform Act of 

1995 

For purposes of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1532, this NPRM does not include any 

Federal mandate that may result in 

excess of $100 million in expenditures 

by state, local, and Tribal governments 

in the aggregate or by the private sector. 

Executive Order 13132 (Federalism) 

OFCCP has reviewed this proposed 

rule in accordance with Executive Order 

13132 regarding federalism, and has 

determined that it does not have 

‘‘federalism implications.’’ This 

proposed 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.’’ 

Executive Order 13084 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This NPRM does not have Tribal 

implications under Executive Order 

13175 that would require a Tribal 

summary impact statement. The NPRM 

would not have substantial direct effects 

on one or more Indian Tribes, on the 

relationship between the Federal 

government and Indian Tribes or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. 

Effects on Families 

The undersigned hereby certifies that 

the NPRM would not adversely affect 

the well-being of families, as discussed 

under section 654 of the Treasury and 

General Government Appropriations 

Act, 1999. 

Executive Order 13045 (Protection of 

Children) 

This NPRM would have no 

environmental health risk or safety risk 

that may disproportionately affect 

children. 

Environmental Impact Assessment 

A review of this NPRM in accordance 

with the requirements of the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq.; the 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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regulations of the Council on 

Environmental Quality, 40 CFR 1500 et 

seq.; and DOL NEPA procedures, 29 

CFR part 11, indicates the NPRM would 

not have a significant impact on the 

quality of the human environment. 

There is, thus, no corresponding 

environmental assessment or an 

environmental impact statement. 

Executive Order 13211 (Energy Supply) 

This NPRM is not subject to Executive 

Order 13211. It will not have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

Executive Order 12630 

(Constitutionally Protected Property 

Rights) 

This NPRM is not subject to Executive 

Order 12630 because it does not involve 

implementation of a policy that has 

takings implications or that could 

impose limitations on private property 

use. 

Executive Order 12988 (Civil Justice 

Reform Analysis) 

This NPRM was drafted and reviewed 

in accordance with Executive Order 

12988 and will not unduly burden the 

Federal court system. The NPRM was: 

(1) Reviewed to eliminate drafting errors 

and ambiguities; (2) written to minimize 

litigation; and (3) written to provide a 

clear legal standard for affected conduct 

and to promote burden reduction. 

List of Subjects in 41 CFR Parts 60–250 

and 60–300 

Administrative practice and 

procedure, Civil rights, Employment, 

Equal employment opportunity, 

Government contracts, Government 

procurement, Individuals with 

disabilities, Investigations, Reporting 

and recordkeeping requirements, and 

Veterans. 

Patricia Shiu, 

Director, Office of Federal Contract 

Compliance Programs. 

Accordingly, under authority of 38 

U.S.C. 4212, Title 41 of the Code of 

Federal Regulations, Chapter 60, the 

second alternative proposed part 60–250 

(as discussed in the Summary section) 

and part 60–300, is proposed to read as 

follows: 

PART 60–250—AFFIRMATIVE ACTION 

AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

SPECIAL DISABLED VETERANS, 

VETERANS OF THE VIETNAM ERA, 

RECENTLY SEPARATED VETERANS, 

AND ACTIVE DUTY WARTIME OR 

CAMPAIGN BADGE 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. 

60–250.45 Contractor established 

benchmarks for hiring. 

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 

Authority: 29 U.S.C. 793; 38 U.S.C. 4211 

(2001) (amended 2002); 38 U.S.C. 4212 

(2001) (amended 2002); 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 38 U.S.C. 

4212 (Section 4212), which prohibits 

discrimination against protected 

veterans and requires Government 

contractors and subcontractors to take 

affirmative action to employ and 

advance in employment qualified 

protected veterans. Special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and active 

duty wartime or campaign badge 

veterans are protected veterans under 

Section 4212. 

(b) Applicability. This part applies to 

any Government contract or subcontract 

of $25,000 or more, entered into before 

December 1, 2003, for the purchase, sale 

or use of personal property or 

nonpersonal services (including 

construction), except that the 

regulations in 41 CFR 60–300, and not 

this part, apply to such a contract or 

subcontract that is modified on or after 

December 1, 2003 and the contract or 

subcontract as modified is in the 

amount of $100,000 or more: 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 active duty wartime or 


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campaign badge 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) Active duty wartime or campaign 

badge 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 the laws administered by the 

Department of Defense. 

(c) Compliance evaluation means any 

one or combination of actions OFCCP 

may take to examine a Federal 

contractor’s or subcontractor’s 

compliance with one or more of the 

requirements of the Vietnam Era 

Veterans’ Readjustment Assistance Act. 

(d) Contract means any Government 

contract or subcontract. 

(e) Contractor means, unless 

otherwise indicated, a prime contractor 

or subcontractor holding a contract of 

$25,000 or more. 

(f) 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 an individual 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. 

(g) Director means the Director, Office 

of Federal Contract Compliance 

Programs of the United States 

Department of Labor, or his or her 

designee. 

(h) [Reserved]. 

(i) Employment service delivery 

system means a service delivery system 

at which or through which labor 

exchange services, including 

employment, training, and placement 

services, are offered in accordance with 

the Wagner-Peyser Act. 

(j) Equal opportunity clause means 

the contract provisions set forth in § 60– 

250.5, ‘‘Equal opportunity clause.’’ 

(k) 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. 

(l) Government means the 

Government of the United States of 

America. 

(m) 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) Construction, as used in the 

definition of Government contract and 

subcontract 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. 

(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) Modification means any alteration 

in the terms and conditions of a 

contract, including supplemental 

agreements, amendments and 

extensions. 

(4) Nonpersonal services, as used in 

the definition of Government contract 

and subcontract of this section, 

includes, but is not limited to, the 

following: Utility, construction, 

transportation, research, insurance, and 

fund depository. 

(5) Person, as used in the definition of 

Government contract and subcontract 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. 

(6) Personal property, as used in the 

definition of Government contract and 

subcontract 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). 

(n) Linkage Agreement means an 

agreement describing the connection 

between contractors and appropriate 

recruitment and/or training sources. A 

linkage agreement is to be used by 

contractors as a source of potential 

applicants for the covered groups the 

contractor is interested in, as required 

by § 60–250.44(f). The contractor’s 

representative that signs the linkage 

agreement should be the company 

official responsible for the contractor’s 

affirmative action program and/or has 

hiring authority. 

(o) 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. 

(p) Protected veteran means a veteran 

who is protected under the nondiscrimination and affirmative action 

provisions of the Act; specifically, a 

veteran who may be classified as a 

‘‘special disabled veteran,’’ ‘‘veteran of 


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6A 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). 

7Contractors 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. 

the Vietnam era,’’ ‘‘recently separated 

veteran,’’ and/or an ‘‘active duty wartime 

or campaign badge veteran,’’ as defined 

by this section. 

(q) 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. 

(r) 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. 

(s) 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; 6

(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.7 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.) 

(t) 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. 

(u) 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. 

(v) Secretary means the Secretary of 

Labor, United States Department of 

Labor, or his or her designee. 

(w)(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 (w)(1)(B)) 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. 

(x) 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. 

(y) 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. 

(z) TAP means the Department of 

Defense’s Transition Assistance 

Program, or any successor programs 

thereto. The TAP was designed to 

smooth the transition of military 

personnel and family members leaving 

active duty via employment workshops 

and individualized employment 

assistance and training. 

(aa) 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 (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. 

(bb) 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. 


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8The definitions set forth in 41 CFR 60–250.2 

apply to the terms used throughout this Clause, and 

they are incorporated herein by reference. 

(cc) Veteran means a person who 

served in the active military, naval, or 

air service of the United States, and who 

was discharged or released therefrom 

under conditions other than 

dishonorable. 

(dd) 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. 

§ 60–250.3 [Reserved] 

§ 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 Director 

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 require. The Director 

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 Director 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 

Director in writing within 30 days. 

(3) Facilities not connected with 

contracts. The Director 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 Section 4212 

Protected Veterans 8

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 active duty 

wartime or campaign badge veteran 

(hereinafter collectively referred to as 

‘‘protected veteran(s)’’) 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 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. 

ix. Any other term, condition, or privilege 

of employment. 


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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. 

Further, listing employment openings with 

the state workforce agency job bank where 

the opening occurs or with the local 

employment service delivery system where 

the opening occurs will satisfy the 

requirements to list jobs with the appropriate 

employment service office. In order to satisfy 

the listing requirement described herein, 

contractors must provide information about 

the job vacancy in the manner and format 

required by the appropriate employment 

service delivery system to permit that system 

to provide priority referral of veterans 

protected by Section 4212 for that job 

vacancy. Providing information on 

employment openings to a privately run job 

service or exchange will satisfy the 

contractor’s listing obligation only if the 

privately run job service or exchange 

provides the information to the appropriate 

employment service delivery system in that 

manner and format in which the employment 

service delivery system requires. 

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 a contractor becomes 

contractually bound to the listing provisions 

in paragraphs 2 and 3 of this clause, it shall 

advise the employment service delivery 

system in each state where it has 

establishments that: (a) It is a Federal 

contractor, so that the employment service 

delivery systems are able to identify them as 

such; and (b) it desires priority referrals from 

the state of protected veterans for job 

openings at all locations within the state. The 

contractor shall also provide to the 

employment service delivery system the 

name and location of each hiring location 

within the state and the contact information 

for the contractor official responsible for 

hiring at each location. In the event that the 

contractor uses any external job search 

organizations to assist in its hiring, the 

contractor shall also provide to the 

employment service delivery system the 

contact information for the job search 

organization(s). The disclosures required by 

this paragraph shall be updated on an annual 

basis. As long as the contractor is 

contractually bound to these provisions and 

has so advised the employment service 

delivery system, there is no need to advise 

the employment service delivery system of 

subsequent contracts. The contractor may 

advise the employment service delivery 

system when it is no longer bound by this 

contract clause. 

5. The contractor shall maintain records on 

an annual basis of the number of priority 

referrals of veterans protected by Section 

4212 that it receives from each employment 

service delivery system, the total number of 

referrals it receives from each employment 

service delivery system, and the ratio of 

priority referrals to total referrals. The 

contractor shall maintain these records for a 

period of five (5) years. 

6. 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. 

7. 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 7.ii; Provided, 

that (e) of this paragraph 7.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. 

8. The contractor agrees to comply with the 

rules, regulations, and relevant orders of the 

Secretary of Labor issued pursuant to the Act. 

9. In the event of the contractor’s 

noncompliance with the requirements of this 

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. 

10. The contractor agrees to post in 

conspicuous places, available to employees 

and applicants for employment, notices in a 

form to be prescribed by the Director, Office 

of Federal Contract Compliance Programs, 

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 protected veterans. The 

contractor must ensure that applicants or 

employees who are special disabled veterans 

are provided the notice in a form that is 

accessible and understandable to the special 

disabled veteran (e.g., providing Braille or 

large print versions of the notice, or posting 

the notice for visual accessibility to persons 

in wheelchairs). With respect to employees 

who do not work at a physical location of the 

contractor, a contractor will satisfy its 

posting obligations by posting such notices in 

an electronic format, provided that the 

contractor provides computers that can 

access the electronic posting to such 

employees, or the contractor has actual 

knowledge that such employees otherwise 

are able to access the electronically posted 

notices. Electronic notices for employees 

must be posted in a conspicuous location and 

format on the company’s intranet or sent by 

electronic mail to employees. An electronic 

posting must be used by the contractor to 

notify job applicants of their rights if the 

contractor utilizes an electronic application 

process. Such electronic applicant notice 

must be conspicuously stored with, or as part 

of, the electronic application. 

11. 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 

Section 4212 and is committed to take 

affirmative action to employ and advance in 

employment, and shall not discriminate 

against, protected veterans. 

12. 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 Section 

4212, 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 

Director, Office of Federal Contract 

Compliance Programs may direct to enforce 

such provisions, including action for 

noncompliance. 

13. The contractor must, in all solicitations 

or advertisements for employees placed by or 

on behalf of the contractor, state that all 

qualified applicants will receive 


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consideration for employment without regard 

to their status as a protected veteran. 

[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 

must be appropriate to identify properly 

the parties and their undertakings. 

(d) Inclusion of the equal opportunity 

clause in the contract. It shall be 

necessary to include the equal 

opportunity clause verbatim in the 

contract. 

(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. 

(f) Duties of contracting agencies. 

Each contracting agency shall cooperate 

with the Director 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 Director 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 Director, and 

taking such actions for noncompliance 

as are set forth in Sec. 60–250.66 as may 

be ordered by the Secretary or the 

Director. 

Subpart B—Discrimination Prohibited 

§ 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. 

§ 60–250.21 Prohibitions. 

The term ‘‘discrimination’’ includes, 

but is not limited to, the acts described 

in this section and § 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 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 

protected veteran. For example, the 

contractor may not segregate protected 

veterans as a whole, or any 

classification of 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 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 protected 

veteran; or 

(2) Perpetuate the discrimination of 

others who are subject to common 

administrative control. 

(e) Relationship or association with a 

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 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 applicant or 

employee who is a qualified 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 

applicant or employee who is a 

qualified 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, 

unless the individual subsequently 

provides and/or pays for a reasonable 

accommodation as described in 

paragraph 4 of Appendix A of this part. 

(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 


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as 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 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 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 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. 

§ 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 or safety of the individual 

or others in the workplace. (See § 60– 

250.2(f) defining direct threat.). 

§ 60–250.23 Medical examinations and 

inquiries. 

(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 

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 


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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 Sec. 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 

60–250.23(d)(2). 

§ 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 

not subject to state laws that regulate 

insurance. 

(d) The contractor shall 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 

by the official designated by the 

contractor pursuant to § 60–250.44(i). 

(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. In the event that the 

contractor has employees who do not 

work at a physical establishment, the 

contractor shall inform such employees 

about the availability of the affirmative 

action program by other means. 

§ 60–250.42 Invitation to self-identify. 

(a) Pre-offer. The contractor shall 

invite applicants to inform the 

contractor whether the applicant 

believes that he or she is a protected 

veteran who may be covered by the Act. 

This invitation may be included in the 

application materials for the position, 

but in any circumstance shall be 

provided to applicants prior to making 

an offer of employment to a job 

applicant. Additionally, the contractor 

may invite special disabled veterans to 

self-identify as such 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) Post-offer. At any time after the 

offer of employment but before the 

applicant begins his or her job duties, 

the contractor shall invite applicants to 

inform the contractor whether the 

applicant believes that he or she is a 

special disabled veteran, veteran of the 

Vietnam era, recently separated veteran, 

or active duty wartime or campaign 

badge veteran who may be covered by 

the Act. 

(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.) 

(d) If an applicant identifies himself 

or herself as a special disabled veteran 

in the post-offer self-identification 

detailed in paragraph (b) of this section, 

the contractor must inquire with the 

applicant whether an accommodation is 

necessary, and if so, must engage in an 

interactive process with applicant 

regarding reasonable accommodation. 

The contractor 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 self-identified as 

special disabled veterans. 

(e) The contractor shall keep all 

information on self-identification 


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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 relieves the 

contractor of its obligation to take 

affirmative action with respect to those 

applicants or employees who are known 

to the contractor to be protected 

veterans. 

(g) Nothing in this section relieves 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 

against protected veterans, and shall 

take affirmative action to employ and 

advance in employment qualified 

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 

elements: 

(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 provided 

the notice in a form that is accessible 

and understandable to the special 

disabled veteran (e.g., providing Braille 

or large print versions of the notice, or 

posting the notice for visual 

accessibility to persons in wheelchairs). 

The policy statement shall indicate the 

chief executive officer’s support for the 

contractor’s affirmative action program, 

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 shall 

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 

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 Section 4212 or any 

other Federal, state or local law 

requiring equal opportunity for 

protected veterans; 

(3) Opposing any act or practice made 

unlawful by Section 4212 or its 

implementing regulations in this part or 

any other Federal, state or local law 

requiring equal opportunity for 

protected veterans; or 

(4) Exercising any other right 

protected by Section 4212 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 

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 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 protected veterans in a 

manner which limits their access to all 

jobs for which they are qualified. The 

contractor shall review such processes 

on at least an annual basis 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 

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. These procedures shall, at 

a minimum, include the following steps: 

(1) For each applicant who is a 

protected veteran, the contractor shall 

be able to identify: 

(i) each vacancy for which the 

applicant was considered; and 

(ii) each training program for which 

the applicant was considered. 

(2) For each employee who is a 

protected veteran, the contractor shall 

be able to identify: 

(i) each promotion for which the 

protected veteran was considered; and 

(ii) each training program for which 

the protected veteran was considered. 

(3) In each case where an employee or 

applicant who is a protected veteran is 

rejected for employment, promotion, or 

training, the contractor shall 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, 

shall be treated as confidential medical 

records in accordance with § 60– 

250.23(d). These materials shall 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 

to place a special disabled veteran on 

the job, the contractor shall make a 

record containing a description of the 

accommodation. The record shall be 

treated as a confidential medical record 

in accordance with § 60–250.23(d). 

(c) Physical and mental 

qualifications. (1) The contractor shall 

provide in its affirmative action 

program, and shall adhere to, a schedule 

for the annual 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. 

The contractor shall document the 

methods used to complete the annual 

review, the results of the annual review, 

and any actions taken in response. 

These documents shall be retained as 

employment records subject to the 

recordkeeping requirements of § 60– 

250.80. 

(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 has 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– 


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250.2(f) defining direct threat.) Once the 

contractor believes that a direct threat 

exists, the contractor shall create a 

statement of reasons supporting its 

belief, addressing each the criteria for 

‘‘direct threat’’ listed in § 60–250.2(f). 

This statement shall be treated as a 

confidential medical record in 

accordance with § 60–250.23, and shall 

be retained as an employment record 

subject to the recordkeeping 

requirements of § 60–250.80. 

(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 

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 

protected veteran. 

(f) External dissemination of policy, 

outreach and positive recruitment. 

(1) Required outreach efforts. The 

contractor shall undertake the outreach 

and positive recruitment activities listed 

below: 

(i) The contractor shall establish 

linkage agreements enlisting the 

assistance and support of the Local 

Veterans’ Employment Representative 

in the local employment service office 

nearest the contractor’s establishment; 

and at least one of the following persons 

and organizations in recruiting and 

developing training opportunities for 

protected veterans to fulfill its 

commitment to provide meaningful 

employment opportunities to such 

veterans: 

(A) The Department of Veterans 

Affairs Regional Office nearest the 

contractor’s establishment; 

(B) The veterans’ counselors and 

coordinators (Vet-Reps) on college 

campuses; 

(C) The service officers of the national 

veterans’ groups active in the area of the 

contractor’s establishment; 

(D) Local veterans’ groups and 

veterans’ service centers near the 

contractor’s establishment; and 

(E) The Department of Defense 

Transition Assistance Program (TAP), or 

any subsequent program that, in whole 

or in part, might replace TAP. 

(ii) The contractor shall also consult 

the Employer Resources section of the 

National Resource Directory (http:// 

www.nationalresourcedirectory.gov/ 

employment/employer_resources), or 

any future service that replaces or 

complements it, and establish a linkage 

agreement with one or more of the 

veterans’ service organizations listed on 

the directory, other than the agencies 

listed in (A) through (E) above, 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. 

(iii) The contractor must send written 

notification of company policy related 

to its affirmative action efforts to all 

subcontractors, including 

subcontracting vendors and suppliers, 

requesting appropriate action on their 

part. 

(2) Suggested outreach efforts. The 

contractor should consider taking the 

actions listed below to fulfill its 

commitment to provide meaningful 

employment opportunities to protected 

veterans: 

(i) Formal briefing sessions should be 

held, preferably on company premises, 

with representatives from recruiting 

sources. Contractor facility tours, clear 

and concise explanations of current and 

future job openings, position 

descriptions, worker specifications, 

explanations of the company’s selection 

process, and recruiting literature should 

be an integral part of the briefing. At any 

such briefing sessions, the company 

official in charge of the contractor’s 

affirmative action program should be in 

attendance when possible. Formal 

arrangements should be made for 

referral of applicants, follow up with 

sources, and feedback on disposition of 

applicants. 

(ii) The contractor’s recruitment 

efforts at all educational institutions 

should incorporate special efforts to 

reach students who are protected 

veterans. 

(iii) An effort should be made to 

participate in work-study programs with 

Department of Veterans Affairs 

rehabilitation facilities which specialize 

in training or educating special disabled 

veterans. 

(iv) Protected veterans should be 

made available for participation in 

career days, youth motivation programs, 

and related activities in their 

communities. 

(v) The contractor should take any 

other positive steps it deems necessary 

to attract qualified 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 any of the 

classifications of protected veterans. 

(vi) The contractor, in making hiring 

decisions, shall consider applicants who 

are known protected veterans for all 

available positions for which they may 

be qualified when the position(s) 

applied for is unavailable. 

(3) Assessment of External Outreach 

and Recruitment Efforts. The contractor 

shall, on an annual basis, review the 

outreach and recruitment efforts it has 

taken over the previous twelve months 

to evaluate their effectiveness in 

identifying and recruiting qualified 

protected veterans. The contractor shall 

document each evaluation, including at 

a minimum the criteria it used to 

evaluate the effectiveness of each effort 

and the contractor’s conclusion as to 

whether each effort was effective. 

Among these criteria shall be the data 

collected pursuant to paragraph (k) of 

this section for the current year and the 

two most recent previous years. The 

contractor’s conclusion as to the 

effectiveness of its outreach efforts shall 

be reasonable as determined by OFCCP 

in light of these regulations. If the 

contractor concludes the totality of its 

efforts were not effective in identifying 

and recruiting qualified protected 

veterans, it shall identify and 

implement alternative efforts listed in 

paragraphs (f)(1) or (f)(2) of this section 

in order to fulfill its obligations. 

(4) Recordkeeping Obligation. The 

contractor shall document all linkage 

agreements and all other activities it 

undertakes to comply with the 

obligations of this paragraph, and retain 

these documents for a period of five (5) 

years. 

(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 


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in the contractor’s efforts, the contractor 

shall develop the internal procedures 

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 protected veterans. It is not 

contemplated that the contractor‘s 

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. 

(2) The contractor shall 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 protected 

veterans. The contractor shall schedule 

meetings on an annual basis with all 

employees to discuss its affirmative 

action policies, explain contractor and 

individual employee responsibilities 

under these policies, and identify 

opportunities for advancement; 

(iii) Conduct 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; 

(iv) Discuss the policy thoroughly in 

any employee orientation and 

management training programs; 

(v) If the contractor is party to a 

collective bargaining agreement, it shall 

meet with union officials and/or 

employee representatives to inform 

them of the contractor’s policy, and 

request their cooperation; 

(3) The contractor is encouraged to 

additionally implement and disseminate 

this policy internally as follows: 

(i) If the contractor has a company 

newspaper, magazine, annual report, or 

other paper or electronic publication 

distributed to employees, it should 

publicize its affirmative action policy in 

these publications, and include in these 

publications, where appropriate, 

features on special disabled veteran 

employees and articles on the 

accomplishments of protected veterans, 

with their consent. 

(4) The contractor shall document 

those activities it undertakes to comply 

with the obligations of paragraph (g), 

and retain these documents as 

employment records subject to the 

recordkeeping requirements of § 60– 

250.80. 

(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 

protected veterans have had the 

opportunity to participate in all 

company sponsored educational, 

training, recreational and social 

activities; 

(v) Measure the contractor’s 

compliance with the affirmative action 

program’s specific obligations; and 

(vi) Document the actions taken to 

comply with the obligations of 

paragraphs (i) through (v) above, and 

retain these documents as employment 

records subject to the recordkeeping 

requirements of § 60–250.80. 

(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 shall 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. In addition to the training 

set forth in paragraph (g)(2)(ii) of this 

section, 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. This training shall 

include, but not be limited to, the 

benefits of employing protected 

veterans, appropriate sensitivity toward 

protected veteran applicants and 

employees, and the legal responsibilities 

of the contractor and its agents 

regarding protected veterans generally 

and special disabled veterans 

specifically, such as a reasonable 

accommodation for qualified special 

disabled veterans and the related and 

responsibilities of contractors and 

protected veterans. The contractor shall 

create contemporaneous records 

documenting the specific subject 

matter(s) covered in the training, who 

conducted the training, who received 

the training, and when the training took 

place. The contractor shall retain these 

documents, and any written or 

electronic materials used for the training 

required by this section, as employment 

records subject to the recordkeeping 

requirements of § 60–250.80. 

(k) Data Collection Analysis. The 

contractor shall document and maintain 

the following computations or 

comparisons pertaining to applicants 

and hires on an annual basis: 

(1) The raw number of priority 

referrals of veterans protected by this 

part that the contractor received from 

applicable employment service delivery 

system(s); 

(2) The number of total referrals that 

the contractor received from applicable 

employment service delivery system(s); 

(3) The ratio of priority referrals of 

veterans to total referrals (referral ratio); 

(4) The number of applicants who 

self-identified as protected veterans 

pursuant to § 60–250.42(a), or who are 

otherwise known as protected veterans; 

(5) The total number of job openings 

and the total number of jobs filled; 

(6) The ratio of jobs filled to job 

openings; 

(7) The total number of applicants for 

all jobs; 

(8) The ratio of protected veteran 

applicants to all applicants (applicant 

ratio); 

(9) The number of protected veteran 

applicants hired; 

(10) The total number of applicants 

hired; and 

(11) The ratio of protected veterans 

hired to all hires (hiring ratio). The 

number of hires shall include all 

employees as defined in § 60–250.2(h). 

§ 60–250.45 Contractor established 

benchmarks for hiring. 

(a) Purpose: The purpose of 

establishing benchmarks is to create a 

quantifiable method by which the 

contractor can measure its progress 

toward achieving equal employment 

opportunity for protected veterans. 

(b) Hiring benchmarks, expressed as 

the percentage of total hires that are 

protected veterans that the contractor 

will seek to hire, shall be established by 

the contractor on an annual basis. In 

establishing these benchmarks, 

contractors shall take into account the 

following information: 

(1) The average percentage of veterans 

in the civilian labor force in the State(s) 

where the contractor is located over the 

preceding three years, as calculated by 

the Bureau of Labor Statistics and 

published on OFCCP Web site; 


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(2) The number of veterans, over the 

previous four quarters, who were 

participants in the employment service 

delivery system in the State where the 

contractor is located, as tabulated by the 

Veterans’ Employment and Training 

Service and published on OFCCP Web 

site; 

(3) The referral ratio, applicant ratio, 

and hiring ratio for the previous year, as 

set forth in § 60–250.44(k); 

(4) The contractor’s recent 

assessments of the effectiveness of its 

external outreach and recruitment 

efforts, as set forth in § 60–250.44(f)(3); 

and 

(5) Any other factors, including but 

not limited to the nature of the 

contractor’s job openings and/or its 

location, which would tend to affect the 

availability of qualified protected 

veterans. 

(c) The contractor shall document the 

hiring benchmark it has established 

each year, detailing each of the factors 

that it considered in establishing the 

hiring benchmark and the relative 

significance of each of these factors. The 

contractor shall retain this document for 

a period of five (5) years. 

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 

without discrimination based on their 

status as a 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. 

OFCCP may extend the temporal scope 

of the desk audit beyond that set forth 

in the scheduling letter if OFCCP deems 

it necessary to carry out its investigation 

of potential violations of this Part. 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 Section 4212 and its 

regulations; 

(3) Compliance check. A 

determination of whether the contractor 

has maintained records consistent with 

§ 60–250.80; OFCCP may request the 

documents be provided either on-site or 

off-site; or 

(4) Focused review. A 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. 

(d) Pre-award compliance 

evaluations. Each agency will include in 

the invitation for bids for each formally 

advertised nonconstruction contract or 

state at the outset of negotiations for 

each negotiated contract, that if the 

award, when let, should total $10 

million or more, the prospective 

contractor and its known first-tier 

subcontractors with subcontracts of $10 

million or more will be subject to a 

compliance evaluation before the award 

of the contract unless OFCCP has 

conducted an evaluation and found 

them to be in compliance with Section 

4212 within the preceding 24 months. 

The awarding agency will notify OFCCP 

and request appropriate action and 

findings in accordance with this 

subsection. Within 15 days of the notice 

OFCCP will inform the awarding agency 

of its intention to conduct a pre-award 

compliance evaluation. If OFCCP does 

not inform the awarding agency within 

that period of its intention to conduct a 

pre-award compliance evaluation, 

clearance shall be presumed and the 

awarding agency is authorized to 

proceed with the award. If OFCCP 

informs the awarding agency of its 

intention to conduct a pre-award 

compliance evaluation, OFCCP will be 

allowed an additional 20 days after the 

date that it so informs the awarding 

agency to provide its conclusions. If 

OFCCP does not provide the awarding 

agency with its conclusions within that 

period, clearance will be presumed and 

the awarding agency is authorized to 

proceed with the award. 

§ 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 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) 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 


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employment service delivery system 

shall cooperate with the Director 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; 

(ii) Name and address of the 

contractor who committed the alleged 

violation; 

(iii) Documentation showing that the 

individual is a 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 

Director decides not to refer the matter 

to the Solicitor of Labor for enforcement 

proceedings against the contractor 

pursuant to § 60–250.65(a)(1), the 

complainant and contractor shall be so 

notified. The Director, 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 Director 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 Director 

decides to reconsider the determination 

of a Notification of Results of 

Investigation, the Director 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 

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 Director 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 


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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 

Director 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)); references to ‘‘equal opportunity 

clause’’ shall mean the equal 

opportunity clause published at § 60– 

250.5; and references 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 Director, 

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. 

(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 Director 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 Director 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 Director 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 Director may conduct a 

compliance evaluation of the contractor 

and may require the contractor to 

supply additional information regarding 

the request for reinstatement. The 

Director 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 

Director’s decision. The petition shall be 

served on the Director and the Associate 

Solicitor for Civil Rights and shall 

include the decision as an appendix. 

The Director 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 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 

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 

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 

Director 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 

period will be one year from the date of 


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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. Records required by 

§§ 60–250.44(f)(4), 60–250.44(k), 60– 

250.45(c), and Paragraph 5 of the equal 

opportunity clause in § 250.5(a) shall be 

maintained by all contractors for a 

period of five years from the date of the 

making of the record. 

(b) Failure to preserve records. Failure 

to preserve complete and accurate 

records as required by this part 

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. 

§ 60–250.81 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, accounts, and 

records, including electronic records, 

and any other material OFCCP deems 

relevant to the matter under 

investigation and pertinent to 

compliance with the Act or this part. 

Contractors must also provide OFCCP 

access to these materials, including 

electronic records, off-site for purposes 

of conducting compliance evaluations 

and complaint investigations. Upon 

request, the contractor must provide 

OFCCP information about all format(s), 

including specific electronic formats, in 

which its records and other information 

are available. The contractor must 

provide records and other information 

in any available format requested by 

OFCCP. 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 

Director. 

§ 60–250.84 Responsibilities of local 

employment service offices. 

(a) Local employment service offices 

shall refer qualified 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 

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 

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 Section 4212, 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 Section 4212 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(r), 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 


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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 

employment, before they are placed on the 

contractor’s payroll, to indicate whether they 

are a special disabled veteran who may be 

covered by the Act and wish to benefit under 

the contractor’s affirmative action program. 

That section further provides that the 

contractor must seek the advice of special 

disabled veterans who ‘‘self-identify’’ in this 

way as to reasonable 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 

funding, the special disabled veteran must 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. The definition for ‘‘reasonable 

accommodation’’ in § 60–250.2(s) 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 must consult with the special 

disabled veteran in deciding on the 

reasonable 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 (1–800–526– 

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 

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(s) 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, 


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etc., if the individual is qualified, and if the 

position is vacant within a reasonable 

amount of time. A ‘‘reasonable amount of 

time’’ must 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 

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, 

reasonable 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 

[Sample Invitation to Self-Identify] 

1. This employer is a Government 

contractor subject to the Vietnam Era 

Veterans’ Readjustment Assistance Act of 

1974, 38 U.S.C. 4212 (Section 4212), as 

amended, which requires Government 

contractors to take affirmative action to 

employ and advance in employment: (1) 

Qualified special disabled veterans; (2) 

veterans of the Vietnam era; (3) recently 

separated veterans; and (4) active duty 

wartime or campaign badge veterans. These 

classifications are defined as follows: 

• A ‘‘qualified special disabled veteran’’ 

means someone who satisfies the requisite 

skill, experience, education and other jobrelated 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, and also is one of 

the following: 

• 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 (defined as a significant 

impairment of a veteran’s ability to prepare 

for, obtain, or retain employment consistent 

with such veteran’s abilities, aptitudes and 

interests.); or 

• A person who was discharged or 

released from active duty because of a 

service-connected disability. 

A ‘‘veteran of the Vietnam era’’ means 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 May 7, 1975; or 

• Between August 5, 1964, and May 7, 

1975, in all other cases; or 

• Was discharged or released from active 

duty for a service-connected 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. 

• A ‘‘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 in the 

U.S. military, ground, naval, or air service. 

• An ‘‘active duty wartime or campaign 

badge veteran’’ means a veteran who served 

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. 

2. [THE FOLLOWING TEXT SHOULD BE 

USED WHEN EXTENDING THE ‘‘PRE– 

OFFER’’ INVITATION TO PROTECTED 

VETERANS REQUIRED BY 41 CFR 60– 

250.42(a). THE DEFINITIONS OF THE 

SEPARATE CLASSIFICATIONS OF 

PROTECTED VETERANS SET FORTH IN 

PARAGRAPH 1 MUST ACCOMPANY THIS 

SELF-IDENTIFICATION REQUEST.] If you 

believe you belong to any of the categories of 

protected veterans listed above, please 

indicate by checking the appropriate box 

below. As a Government contractor subject to 

Section 4212, we request this information in 

order to measure the effectiveness of the 

outreach and positive recruitment efforts we 

undertake pursuant to Section 4212. 

[ ] I IDENTIFY AS ONE OR MORE OF THE 

CLASSIFICATIONS OF PROTECTED 

VETERAN LISTED ABOVE 

[ ] I AM NOT A PROTECTED VETERAN 

[ ] I CHOOSE NOT TO PROVIDE THIS 

INFORMATION 

[THE FOLLOWING TEXT SHOULD BE 

USED WHEN EXTENDING THE ‘‘POST– 

OFFER’’ INVITATION TO PROTECTED 

VETERANS REQUIRED BY 41 CFR 60– 

250.42(b). THE DEFINITIONS OF THE 

SEPARATE CLASSIFICATIONS OF 

PROTECTED VETERANS SET FORTH IN 

PARAGRAPH 1 MUST ACCOMPANY THIS 

SELF-IDENTIFICATION REQUEST.] As a 

Government contractor subject to Section 

4212, we are required to submit a report 

(VETS–100) to the United States Department 

of Labor each year identifying the number of 

our employees belonging to each ‘‘protected 

veteran’’ category. If you believe you belong 

to any of the categories of protected veterans 

listed above, please indicate by checking the 

appropriate box below. 

I BELONG TO THE FOLLOWING 

CLASSIFICATIONS OF PROTECTED 

VETERANS (CHOOSE ALL THAT APPLY): 

[ ] QUALIFIED SPECIAL DISABLED 

VETERAN 

[ ] VETERAN OF THE VIETNAM ERA 

[ ] RECENTLY SEPARATED VETERAN 

[ ] ACTIVE WARTIME OR CAMPAIGN 

BADGE VETERAN 

lllllllllllllllllllll

[ ] I am a protected veteran, but I choose 

not to self-identify the classifications to 

which I belong. 

[ ] I am NOT a protected veteran. 

[ ] I choose not to provide this information. 

If you are a special disabled veteran it 

would assist us if you tell us whether there 

are accommodations we could make that 

would enable you to perform the job properly 

and safely, including special equipment, 

changes in the physical layout of the job, 

changes in the way the job is customarily 

performed, provision of personal assistance 

services or other accommodations. This 

information will assist us in making 

reasonable accommodations for your 

disability. 

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 

extent appropriate, if you have a condition 

that might require emergency treatment; and 

(iii) Government officials engaged in 

enforcing laws administered by the Office of 

Federal Contract Compliance Programs, 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.] 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23409 

PART 60–300—AFFIRMATIVE ACTION 

AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

DISABLED VETERANS, RECENTLY 

SEPARATED VETERANS, ACTIVE 

DUTY WARTIME OR CAMPAIGN 

BADGE VETERANS, AND ARMED 

FORCES SERVICE MEDAL VETERANS 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

Sec. 

60–300.1 Purpose, applicability and 

construction. 

60–300.2 Definitions. 

60–300.3 [Reserved]. 

60–300.4 Coverage and waivers. 

60–300.5 Equal opportunity clause. 

Subpart B—Discrimination Prohibited 

60–300.20 Covered employment activities. 

60–300.21 Prohibitions. 

60–300.22 Direct threat defense. 

60–300.23 Medical examinations and 

inquiries. 

60–300.24 Drugs and alcohol. 

60–300.25 Health insurance, life insurance 

and other benefit plans. 

Subpart C—Affirmative Action Program 

60–300.40 Applicability of the affirmative 

action program requirement. 

60–300.41 Availability of affirmative action 

program. 

60–300.42 Invitation to self-identify. 

60–300.43 Affirmative action policy. 

60–300.44 Required contents of affirmative 

action programs. 

60–300.45 Contractor Established 

Benchmarks for Hiring 

Subpart D—General Enforcement and 

Complaint Procedures 

60–300.60 Compliance evaluations. 

60–300.61 Complaint procedures. 

60–300.62 Conciliation agreements. 

60–300.63 Violation of conciliation 

agreements. 

60–300.64 Show cause notices. 

60–300.65 Enforcement proceedings. 

60–300.66 Sanctions and penalties. 

60–300.67 Notification of agencies. 

60–300.68 Reinstatement of ineligible 

contractors. 

60–300.69 Intimidation and interference. 

60–300.70 Disputed matters related to 

compliance with the Act. 

Subpart E—Ancillary Matters 

60–300.80 Recordkeeping. 

60–300.81 Access to records. 

60–300.82 Labor organizations and 

recruiting and training agencies. 

60–300.83 Rulings and interpretations. 

60–300.84 Responsibilities of local 

employment service offices. 

Appendix A to Part 60–300—Guidelines on 

a Contractor’s Duty To Provide 

Reasonable Accommodation 

Appendix B to Part 60–300—Sample 

Invitation To Self-Identify 

Authority: 29 U.S.C. 793; 38 U.S.C. 4211 

and 4212; E.O. 11758 (3 CFR, 1971–1975 

Comp., p. 841). 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

§ 60–300.1 Purpose, applicability and 

construction. 

(a) Purpose. The purpose of the 

regulations in this part is to set forth the 

standards for compliance with 38 U.S.C. 

4212 (Section 4212), which prohibits 

discrimination against protected 

veterans and requires Government 

contractors and subcontractors to take 

affirmative action to employ and 

advance in employment qualified 

protected veterans. Disabled veterans, 

recently separated veterans, active duty 

wartime or campaign badge veterans, 

and Armed Forces service medal 

veterans are protected veterans under 

Section 4212. 

(b) Applicability. This part applies to 

any Government contract or subcontract 

of $100,000 or more, entered into or 

modified on or after December 1, 2003, 

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. 60–300.40(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. 

Any contractor or subcontractor whose 

only contract(s) for the purchase, sale or 

use of personal property and 

nonpersonal services (including 

construction) was entered into before 

December 1, 2003 (and not modified as 

described above) must follow part 60– 

250. Any contractor or subcontractor 

who has contracts for the purchase, sale 

or use of personal property and 

nonpersonal services (including 

construction) that were entered into 

before December 1, 2003 (and not 

modified as described above), and 

contracts that were entered into on or 

after December 1, 2003, must follow 

both parts 60–250 and 60–300. 

(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 disabled veterans, recently separated 

veterans, active duty wartime or 

campaign badge veterans, or Armed 

Forces service medal 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. 

§ 60–300.2 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. 

(b) 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. 

(c) 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 FR 1209). 

(d) Compliance evaluation means any 

one or combination of actions OFCCP 

may take to examine a Federal 

contractor’s or subcontractor’s 

compliance with one or more of the 

requirements of the Vietnam Era 

Veterans’ Readjustment Assistance Act. 

(e) Contract means any Government 

contract or subcontract. 

(f) Contractor means, unless otherwise 

indicated, a prime contractor or 

subcontractor holding a contract of 

$100,000 or more. 

(g) 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 an individual 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; 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
23410 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

9A contractor’s duty to provide a reasonable 

accommodation with respect to applicants who are 

disabled veterans is not limited to those who 

ultimately demonstrate that they are qualified to 

perform the job in issue. 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) 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. 

(h) Director means the Director, Office 

of Federal Contract Compliance 

Programs of the United States 

Department of Labor, or his or her 

designee. 

(i) Disabled veteran means: 

(1) A veteran of the U.S. military, 

ground, naval or air service 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 Secretary of 

Veterans Affairs, or 

(2) A person who was discharged or 

released from active duty because of a 

service-connected disability. 

(j) [Reserved] 

(k) Employment service delivery 

system means a service delivery system 

at which or through which labor 

exchange services, including 

employment, training, and placement 

services, are offered in accordance with 

the Wagner-Peyser Act. 

(l) Equal opportunity clause means 

the contract provisions set forth in § 60– 

300.5, ‘‘Equal opportunity clause.’’ 

(m) Essential functions—(1) In 

general. The term essential functions 

means fundamental job duties of the 

employment position the 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. 

(n) Government means the 

Government of the United States of 

America. 

(o) 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) Construction, as used in the 

definition of Government contract and 

subcontract 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. 

(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) Modification means any alteration 

in the terms and conditions of a 

contract, including supplemental 

agreements, amendments and 

extensions. 

(4) Nonpersonal services, as used in 

the definition of Government contract 

and subcontract of this section, 

includes, but is not limited to, the 

following: Utility, construction, 

transportation, research, insurance, and 

fund depository. 

(5) Person, as used in the definition of 

Government contract and subcontract 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. 

(6) Personal property, as used in the 

definition of Government contract and 

subcontract 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). 

(p) Linkage Agreement means an 

agreement describing the connection 

between contractors and appropriate 

recruitment and/or training sources. A 

linkage agreement is to be used by 

contractors as a source of potential 

applicants for the covered groups the 

contractor is interested in, as required 

by § 60–300.44(f). The contractor’s 

representative that signs the linkage 

agreement should be the company 

official responsible for the contractor’s 

affirmative action program and/or has 

hiring authority. 

(q) Prime contractor means any 

person holding a contract of $100,000 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. 

(r) Protected veteran means a veteran 

who is protected under the nondiscrimination and affirmative action 

provisions of the Act; specifically, a 

veteran who may be classified as a 

‘‘disabled veteran,’’ ‘‘recently separated 

veteran,’’ ‘‘active duty wartime or 

campaign badge veteran,’’ and/or an 

‘‘Armed Forces service medal veteran,’’ 

as defined by this section. 

(s) 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. 

(t) Qualified disabled veteran means a 

disabled veteran who has the ability to 

perform the essential functions of the 

employment position with or without 

reasonable accommodation. 

(u) 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 disabled 

veteran to be considered for the position 

such applicant desires; 9 or 

(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 

disabled veteran to perform the essential 

functions of that position; or 

(iii) Modifications or adjustments that 

enable the contractor’s employee who is 

a disabled veteran to enjoy equal 

benefits and privileges of employment 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23411 

10Contractors must engage in such an interactive 

process with a 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. 

as are enjoyed by the contractor’s other 

similarly situated employees who are 

not 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 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 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 disabled veteran in need of the 

accommodation.10 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.) 

(v) Recently separated veteran means 

any veteran during the three-year period 

beginning on the date of such veteran’s 

discharge or release from active duty in 

the U.S. military, ground, naval or air 

service. 

(w) 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. 

(x) Secretary means the Secretary of 

Labor, United States Department of 

Labor, or his or her designee. 

(y) 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. 

(z) Subcontractor means any person 

holding a subcontract of $100,000 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. 

(aa) TAP means the Department of 

Defense’s Transition Assistance 

Program, or any successor programs 

thereto. The TAP was designed to 

smooth the transition of military 

personnel and family members leaving 

active duty via employment workshops 

and individualized employment 

assistance and training. 

(bb) 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 (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. 

(cc) 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. 

(dd) Veteran means a person who 

served in the active military, naval, or 

air service of the United States, and who 

was discharged or released therefrom 

under conditions other than 

dishonorable. 

§ 60–300.3 [Reserved] 

§ 60–300.4 Coverage and waivers. 

(a) General—(1) Contracts and 

subcontracts of $100,000 or more. 

Contracts and subcontracts of $100,000 

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 $100,000. 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 $100,000 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
23412 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

11The definitions set forth in 41 CFR 60–300.2 

apply to the terms used throughout this Clause, and 

they are incorporated herein by reference. 

in work on or under the contract or 

subcontract. 

(b) Waivers—(1) Specific contracts 

and classes of contracts. The Director 

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 require. The Director 

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 Director 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 

Director in writing within 30 days. 

(3) Facilities not connected with 

contracts. The Director 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. 

§ 60–300.5 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 SECTION 

4212 PROTECTED VETERANS 11

1. The contractor will not discriminate 

against any employee or applicant for 

employment because he or she is a disabled 

veteran, recently separated veteran, active 

duty wartime or campaign badge veteran, or 

Armed Forces service medal veteran 

(hereinafter collectively referred to as 

‘‘protected veteran(s)’’) 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 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. 

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 where the 

contract is being performed, but excluding 

those of independently operated corporate 

affiliates, with the appropriate employment 

service delivery system where the opening 

occurs. 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 appropriate 

employment service delivery system. In order 

to satisfy the listing requirement described 

herein, contractors must provide information 

about the job vacancy in the manner and 

format required by the appropriate 

employment service delivery system to 

permit that system to provide priority referral 

of veterans protected by Section 4212 for that 

job vacancy. Providing information on 

employment openings to a privately run job 

service or exchange will satisfy the 

contractor’s listing obligation only if the 

privately run job service or exchange 

provides the information to the appropriate 

employment service delivery system in that 

manner and format in which the employment 

service delivery system requires. 

3. Listing of employment openings with 

the appropriate employment service delivery 

system 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 a contractor, other than a state 

or local governmental contractor, becomes 

contractually bound to the listing provisions 

in paragraphs 2 and 3 of this clause, it shall 

advise the employment service delivery 

system in each state where it has 

establishments that: (a) It is a Federal 

contractor, so that the employment service 

delivery systems are able to identify them as 

such; and (b) it desires priority referrals from 

the state of protected veterans for job 

openings at all locations within the state. The 

contractor shall also provide to the 

employment service delivery system the 

name and location of each hiring location 

within the state and the contact information 

for the contractor official responsible for 

hiring at each location. In the event that the 

contractor uses any external job search 

organizations to assist in its hiring, the 

contractor shall also provide to the 

employment service delivery system the 

contact information for the job search 

organization(s). The disclosures required by 

this paragraph shall be updated on an annual 

basis. As long as the contractor is 

contractually bound to these provisions and 

has so advised the employment service 

delivery system, there is no need to advise 

the employment service delivery system of 

subsequent contracts. The contractor may 

advise the employment service delivery 

system when it is no longer bound by this 

contract clause. 

5. The contractor shall maintain records on 

an annual basis of the number of priority 

referrals of veterans protected by Section 

4212 that it receives from each employment 

service delivery system, the total number of 

referrals it receives from each employment 

service delivery system, and the ratio of 

priority referrals to total referrals. The 

contractor shall maintain these records for a 

period of five (5) years. 

6. 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, the Virgin Islands, American 

Samoa, the Commonwealth of the Northern 

Mariana Islands, Wake Island, and the Trust 

Territories of the Pacific Islands. 


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7. As used in this clause: i. All employment 

openings includes all positions except 

executive and senior 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 senior management 

means: (1) Any employee (a) compensated on 

a salary basis at a rate of not less than $455 

per week (or $380 per week, if employed in 

American Samoa by employers other than the 

Federal Government), exclusive of board, 

lodging or other facilities; (b) whose primary 

duty is management of the enterprise in 

which the employee is employed or of a 

customarily recognized department or 

subdivision thereof; (c) who customarily and 

regularly directs the work of two or more 

other employees; and (d) who has the 

authority to hire or fire other employees or 

whose suggestions and recommendations as 

to the hiring, firing, advancement, promotion 

or any other change of status of other 

employees are given particular weight; or (2) 

any employee who owns at least a bona fide 

20-percent equity interest in the enterprise in 

which the employee is employed, regardless 

of whether the business is a corporate or 

other type of organization, and who is 

actively engaged in its management. 

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. 

8. The contractor agrees to comply with the 

rules, regulations, and relevant orders of the 

Secretary of Labor issued pursuant to the Act. 

9. In the event of the contractor’s 

noncompliance with the requirements of this 

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. 

10. The contractor agrees to post in 

conspicuous places, available to employees 

and applicants for employment, notices in a 

form to be prescribed by the Director, Office 

of Federal Contract Compliance Programs, 

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 protected veterans. The 

contractor must ensure that applicants or 

employees who are disabled veterans are 

provided the notice in a form that is 

accessible and understandable to the 

disabled veteran (e.g., providing Braille or 

large print versions of the notice, or posting 

the notice for visual accessibility to persons 

in wheelchairs). With respect to employees 

who do not work at a physical location of the 

contractor, a contractor will satisfy its 

posting obligations by posting such notices in 

an electronic format, provided that the 

contractor provides computers that can 

access the electronic posting to such 

employees, or the contractor has actual 

knowledge that such employees otherwise 

are able to access the electronically posted 

notices. Electronic notices for employees 

must be posted in a conspicuous location and 

format on the company’s intranet or sent by 

electronic mail to employees. An electronic 

posting must be used by the contractor to 

notify job applicants of their rights if the 

contractor utilizes an electronic application 

process. Such electronic applicant notice 

must be conspicuously stored with, or as part 

of, the electronic application. 

11. 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 

Section 4212, and is committed to take 

affirmative action to employ and advance in 

employment, and shall not discriminate 

against, protected veterans. 

12. The contractor will include the 

provisions of this clause in every subcontract 

or purchase order of $100,000 or more, 

unless exempted by the rules, regulations, or 

orders of the Secretary issued pursuant to 

Section 4212 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 Director, Office of Federal Contract 

Compliance Programs, may direct to enforce 

such provisions, including action for 

noncompliance. 

13. The contractor must, in all solicitations 

or advertisements for employees placed by or 

on behalf of the contractor, state that all 

qualified applicants will receive 

consideration for employment without regard 

to their status as a protected veteran. 

[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 

must be appropriate to identify properly 

the parties and their undertakings. 

(d) Inclusion of the equal opportunity 

clause in the contract. It shall be 

necessary to include the equal 

opportunity clause verbatim in the 

contract. 

(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. 

(f) Duties of contracting agencies. 

Each contracting agency shall cooperate 

with the Director 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 Director 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 Director, and 

taking such actions for noncompliance 

as are set forth in Sec. 60–300.66 as may 

be ordered by the Secretary or the 

Director. 

Subpart B—Discrimination Prohibited 

§ 60–300.20 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. 

§ 60–300.21 Prohibitions. 

The term discrimination includes, but 

is not limited to, the acts described in 

this section and § 60–300.23. 

(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 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 


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that adversely affects his or her 

employment opportunities or status on 

the basis of that individual’s status as a 

protected veteran. For example, the 

contractor may not segregate protected 

veterans as a whole, or any 

classification of 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 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 protected 

veteran; or 

(2) Perpetuate the discrimination of 

others who are subject to common 

administrative control. 

(e) Relationship or association with a 

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 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 applicant or 

employee who is a qualified 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 

applicant or employee who is a 

qualified 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 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 

disabled veteran, unless the individual 

subsequently provides and/or pays for a 

reasonable accommodation as described 

in paragraph 4 of Appendix A of this 

part. 

(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 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 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 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 disabled veteran 

because the applicant’s disability 

prevents him or her from performing 

marginal functions. When considering a 

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 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 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. 

§ 60–300.22 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 or safety of the individual 

or others in the workplace. (See § 60– 

300.2(g) defining direct threat.). 

§ 60–300.23 Medical examinations and 

inquiries. 

(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 

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 


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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 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 disabled veterans 

as a result of such examinations or 

inquiries, the contractor must 

demonstrate that the exclusionary 

criteria are job-related and 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 § 60–300.42. 

(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. 

§ 60–300.24 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 

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 Sec. 60–300.23. 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 §§ 60–300.23(b)(5) and 

60–300.23(d)(2). 

§ 60–300.25 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 

not subject to state laws that regulate 

insurance. 

(d) The contractor shall not deny a 

qualified disabled veteran equal access 

to insurance or subject a qualified 

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 

§ 60–300.40 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 $100,000 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. 


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(c) The affirmative action program 

shall be reviewed and updated annually 

by the official designated by the 

contractor pursuant to § 60–300.44(i). 

(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. 

§ 60–300.41 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. In the event that the 

contractor has employees who do not 

work at a physical establishment, the 

contractor shall inform such employees 

about the availability of the affirmative 

action program by other means. 

§ 60–300.42 Invitation to self-identify. 

(a) Pre-offer. The contractor shall 

invite applicants to inform the 

contractor whether the applicant 

believes that he or she is a protected 

veteran who may be covered by the Act. 

This invitation may be included in the 

application materials for the position, 

but in any circumstance shall be 

provided to applicants prior to making 

an offer of employment to a job 

applicant. Additionally, the contractor 

may invite disabled veterans to selfidentify as such prior to making a job 

offer when: 

(1) The invitation is made when the 

contractor actually is undertaking 

affirmative action for 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 disabled veterans. 

(b) Post-offer. At any time after the 

offer of employment but before the 

applicant begins his or her job duties, 

the contractor shall invite applicants to 

inform the contractor whether the 

applicant believes that he or she is a 

disabled veteran, recently separated 

veteran, active duty wartime or 

campaign badge veteran, or Armed 

Forces service medal veteran who may 

be covered by the Act. 

(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.) 

(d) If an applicant identifies himself 

or herself as a disabled veteran in the 

post-offer self-identification detailed in 

paragraph (b) of this section, the 

contractor must inquire with the 

applicant whether an accommodation is 

necessary, and if so, must engage in an 

interactive process with applicant 

regarding reasonable accommodation. 

The contractor 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 § 60–300.23(d) on 

persons who have self-identified as 

disabled veterans. 

(e) The contractor shall keep all 

information on self-identification 

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 relieves the 

contractor of its obligation to take 

affirmative action with respect to those 

applicants or employees who are known 

to the contractor to be protected 

veterans. 

(g) Nothing in this section relieves the 

contractor from liability for 

discrimination under the Act. 

§ 60–300.43 Affirmative action policy. 

Under the affirmative action 

obligations imposed by the Act, 

contractors shall not discriminate 

against protected veterans, and shall 

take affirmative action to employ and 

advance in employment qualified 

protected veterans at all levels of 

employment, including the executive 

level. Such action shall apply to all 

employment activities set forth in § 60– 

300.20. 

§ 60–300.44 Required contents of 

affirmative action programs. 

Acceptable affirmative action 

programs shall contain, but not 

necessarily be limited to, the following 

elements: 

(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 

disabled veterans are provided the 

notice in a form that is accessible and 

understandable to the disabled veteran 

(e.g., providing Braille or large print 

versions of the notice, or posting the 

notice for visual accessibility to persons 

in wheelchairs). The policy statement 

shall indicate the chief executive 

officer’s support for the contractor’s 

affirmative action program, 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 shall 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 

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 Section 4212 or any 

other Federal, state or local law 

requiring equal opportunity for 

protected veterans; 

(3) Opposing any act or practice made 

unlawful by Section 4212 or its 

implementing regulations in this part or 

any other Federal, state or local law 

requiring equal opportunity for 

protected veterans; or 

(4) Exercising any other right 

protected by Section 4212 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 

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 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 


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issue. The contractor shall ensure that 

its personnel processes do not 

stereotype protected veterans in a 

manner which limits their access to all 

jobs for which they are qualified. The 

contractor shall review such processes 

on at least an annual basis 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 

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. These procedures shall, at 

a minimum, include the following steps: 

(1) For each applicant who is a 

protected veteran, the contractor shall 

be able to identify: 

(i) each vacancy for which the 

applicant was considered; and 

(ii) each training program for which 

the applicant was considered. 

(2) For each employee who is a 

protected veteran, the contractor shall 

be able to identify: 

(i) each promotion for which the 

protected veteran was considered; and 

(ii) each training program for which 

the protected veteran was considered. 

(3) In each case where an employee or 

applicant who is a protected veteran is 

rejected for employment, promotion, or 

training, the contractor shall prepare a 

statement of the reason as well as a 

description of the accommodations 

considered (for a rejected disabled 

veteran). The statement of the reason for 

rejection (if the reason is medically 

related), and the description of the 

accommodations considered, shall be 

treated as confidential medical records 

in accordance with § 60–300.23(d). 

These materials shall 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 

to place a disabled veteran on the job, 

the contractor shall make a record 

containing a description of the 

accommodation. The record shall be 

treated as a confidential medical record 

in accordance with § 60–300.23(d). 

(c) Physical and mental 

qualifications. (1) The contractor shall 

provide in its affirmative action 

program, and shall adhere to, a schedule 

for the annual review of all physical and 

mental job qualification standards to 

ensure that, to the extent qualification 

standards tend to screen out qualified 

disabled veterans, they are job-related 

for the position in question and are 

consistent with business necessity. The 

contractor shall document the methods 

used to complete the annual review, the 

results of the annual review, and any 

actions taken in response. These 

documents shall be retained as 

employment records subject to the 

recordkeeping requirements of § 60– 

300.80. 

(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 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 has 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– 

300.2(g) defining direct threat.) Once the 

contractor believes that a direct threat 

exists, the contractor shall create a 

statement of reasons supporting its 

belief, addressing each the criteria for 

‘‘direct threat’’ listed in § 60–300.2(f). 

This statement shall be treated as a 

confidential medical record in 

accordance with § 60–300.23, and shall 

be retained as an employment record 

subject to the recordkeeping 

requirements of § 60–300.80. 

(d) Reasonable accommodation to 

physical and mental limitations. As is 

provided in § 60–300.21(f), as a matter 

of nondiscrimination the contractor 

must make reasonable accommodation 

to the known physical or mental 

limitations of an otherwise qualified 

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 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 

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 

protected veteran. 

(f) External dissemination of policy, 

outreach and positive recruitment. 

(1) Required outreach efforts. The 

contractor shall undertake the outreach 

and positive recruitment activities listed 

below: 

(i) The contractor shall establish 

linkage agreements enlisting the 

assistance and support of the Local 

Veterans’ Employment Representative 

in the local employment service office 

nearest the contractor’s establishment; 

and at least one of the following persons 

and organizations in recruiting and 

developing training opportunities for 

protected veterans to fulfill its 

commitment to provide meaningful 

employment opportunities to such 

veterans: 

(A) The Department of Veterans 

Affairs Regional Office nearest the 

contractor’s establishment; 

(B) The veterans’ counselors and 

coordinators (Vet-Reps) on college 

campuses; 

(C) The service officers of the national 

veterans’ groups active in the area of the 

contractor’s establishment; 

(D) Local veterans’ groups and 

veterans’ service centers near the 

contractor’s establishment; and 

(E) The Department of Defense 

Transition Assistance Program (TAP), or 

any subsequent program that, in whole 

or in part, might replace TAP. 

(ii) The contractor shall also consult 

the Employer Resources section of the 

National Resource Directory (http:// 

www.nationalresourcedirectory.gov/ 

employment/employer_resources), or 

any future service that replaces or 

complements it, and tablish a linkage 

agreement with one or more of the 

veterans’ service organizations listed on 

the directory, other than the agencies 

listed in (A) through (E) above, 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. 

(iii) The contractor must send written 

notification of company policy related 

to its affirmative action efforts to all 

subcontractors, including 


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subcontracting vendors and suppliers, 

requesting appropriate action on their 

part. 

(2) Suggested outreach efforts. The 

contractor should consider taking the 

actions listed below to fulfill its 

commitment to provide meaningful 

employment opportunities to protected 

veterans: 

(i) Formal briefing sessions should be 

held, preferably on company premises, 

with representatives from recruiting 

sources. Contractor facility tours, clear 

and concise explanations of current and 

future job openings, position 

descriptions, worker specifications, 

explanations of the company’s selection 

process, and recruiting literature should 

be an integral part of the briefing. At any 

such briefing sessions, the company 

official in charge of the contractor’s 

affirmative action program should be in 

attendance when possible. Formal 

arrangements should be made for 

referral of applicants, follow up with 

sources, and feedback on disposition of 

applicants. 

(ii) The contractor’s recruitment 

efforts at all educational institutions 

should incorporate special efforts to 

reach students who are protected 

veterans. 

(iii) 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. 

(iv) Protected veterans should be 

made available for participation in 

career days, youth motivation programs, 

and related activities in their 

communities. 

(v) The contractor should take any 

other positive steps it deems necessary 

to attract qualified 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 any of the 

classifications of protected veterans. 

(vi) The contractor, in making hiring 

decisions, shall consider applicants who 

are known protected veterans for all 

available positions for which they may 

be qualified when the position(s) 

applied for is unavailable. 

(3) Assessment of External Outreach 

and Recruitment Efforts. The contractor 

shall, on an annual basis, review the 

outreach and recruitment efforts it has 

taken over the previous twelve months 

to evaluate their effectiveness in 

identifying and recruiting qualified 

protected veterans. The contractor shall 

document each evaluation, including at 

a minimum the criteria it used to 

evaluate the effectiveness of each effort 

and the contractor’s conclusion as to 

whether each effort was effective. 

Among these criteria shall be the data 

collected pursuant to paragraph (k) of 

this section for the current year and the 

two most recent previous years. The 

contractor’s conclusion as to the 

effectiveness of its outreach efforts shall 

be reasonable as determined by OFCCP 

in light of these regulations. If the 

contractor concludes the totality of its 

efforts were not effective in identifying 

and recruiting qualified protected 

veterans, it shall identify and 

implement alternative efforts listed in 

paragraphs (f)(1) or (f)(2) of this section 

in order to fulfill its obligations. 

(4) Recordkeeping Obligation. The 

contractor shall document all linkage 

agreements and all other activities it 

undertakes to comply with the 

obligations of this paragraph, and retain 

these documents for a period of five (5) 

years. 

(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 the internal procedures 

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 protected veterans. It is not 

contemplated that the contractor’s 

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. 

(2) The contractor shall 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 protected 

veterans. The contractor shall schedule 

meetings on an annual basis with all 

employees to discuss its affirmative 

action policies, explain contractor and 

individual employee responsibilities 

under these policies, and identify 

opportunities for advancement; 

(iii) Conduct 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; 

(iv) Discuss the policy thoroughly in 

any employee orientation and 

management training programs; 

(v) If the contractor is party to a 

collective bargaining agreement, it shall 

meet with union officials and/or 

employee representatives to inform 

them of the contractor’s policy, and 

request their cooperation; 

(3) The contractor is encouraged to 

additionally implement and disseminate 

this policy internally as follows: 

(i) If the contractor has a company 

newspaper, magazine, annual report, or 

other paper or electronic publication 

distributed to employees, it should 

publicize its affirmative action policy in 

these publications, and include in these 

publications, where appropriate, 

features on disabled veteran employees 

and articles on the accomplishments of 

protected veterans, with their consent. 

(4) The contractor shall document 

those activities it undertakes to comply 

with the obligations of paragraph (g), 

and retain these documents as 

employment records subject to the 

recordkeeping requirements of § 60– 

300.80. 

(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 

protected veterans have had the 

opportunity to participate in all 

company sponsored educational, 

training, recreational and social 

activities; 

(v) Measure the contractor’s 

compliance with the affirmative action 

program’s specific obligations; and 

(vi) Document the actions taken to 

comply with the obligations of 

paragraphs (i) through (v) above, and 

retain these documents as employment 

records subject to the recordkeeping 

requirements of § 60–300.80. 

(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 shall appear on 


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all internal and external 

communications regarding the 

company’s affirmative action program. 

This official shall be given necessary 

senior management support and staff to 

manage the implementation of this 

program. 

(j) Training. In addition to the training 

set forth in paragraph (g)(2)(ii) of this 

section, 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. This training shall 

include, but not be limited to, the 

benefits of employing protected 

veterans, appropriate sensitivity toward 

protected veteran applicants and 

employees, and the legal responsibilities 

of the contractor and its agents 

regarding protected veterans generally 

and disabled veterans specifically, such 

as reasonable accommodation for 

qualified disabled veterans and the 

related rights and responsibilities of 

contractors and protected veterans. The 

contractor shall create contemporaneous 

records documenting the specific 

subject matter(s) covered in the training, 

who conducted the training, who 

received the training, and when the 

training took place. The contractor shall 

retain these documents, and any written 

or electronic materials used for the 

training required by this section, as 

employment records subject to the 

recordkeeping requirements of § 60– 

300.80. 

(k) Data Collection Analysis. The 

contractor shall document and maintain 

the following computations or 

comparisons pertaining to applicants 

and hires on an annual basis: 

(1) The number of priority referrals of 

veterans protected by this part that the 

contractor received from applicable 

employment service delivery system(s); 

(2) The number of total referrals that 

the contractor received from applicable 

employment service delivery system(s); 

(3) The ratio of priority referrals of 

veterans to total referrals (referral ratio); 

(4) The number of applicants who 

self-identified as protected veterans 

pursuant to § 60–300.42(a), or who are 

otherwise known as protected veterans; 

(5) The total number of job openings 

and total number of jobs filled; 

(6) The ratio of jobs filled to job 

openings; 

(7) The total number of applicants for 

all jobs; 

(8) The ratio of protected veteran 

applicants to all applicants (applicant 

ratio); 

(9) The number of protected veteran 

applicants hired; 

(10) The total number of applicants 

hired; and 

(11) The ratio of protected veterans 

hired to all hires (hiring ratio). The 

number of hires shall include all 

employees as defined in § 60–300.2. 

§ 60–300.45 Contractor established 

benchmarks for hiring. 

(a) Purpose: The purpose of 

establishing benchmarks is to create a 

quantifiable method by which the 

contractor can measure its progress 

toward achieving equal employment 

opportunity for protected veterans. 

(b) Hiring benchmarks, expressed as 

the percentage of total hires that are 

protected veterans that the contractor 

will seek to hire, shall be established by 

the contractor on an annual basis. In 

establishing these benchmarks, 

contractors shall take into account the 

following information: 

(1) The average percentage of veterans 

in the civilian labor force in the State(s) 

where the contractor is located over the 

preceding three years, as calculated by 

the Bureau of Labor Statistics and 

published on the OFCCP Web site; 

(2) The number of veterans, over the 

previous four quarters, who were 

participants in the employment service 

delivery system in the State where the 

contractor is located, as tabulated by the 

Veterans’ Employment and Training 

Service and published on the OFCCP 

Web site; 

(3) The referral ratio, applicant ratio, 

and hiring ratio for the previous year, as 

set forth in § 60–300.44(k); 

(4) The contractor’s recent 

assessments of the effectiveness of its 

external outreach and recruitment 

efforts, as set forth in § 60–300.44(f)(3); 

and 

(5) Any other factors, including but 

not limited to the nature of the 

contractor’s job openings and/or its 

location, which would tend to affect the 

availability of qualified protected 

veterans. 

(c) The contractor shall document the 

hiring benchmark it has established 

each year, detailing each of the factors 

that it considered in establishing the 

hiring benchmark and the relative 

significance of each of these factors. The 

contractor shall retain this document for 

a period of five (5) years. 

Subpart D—General Enforcement and 

Complaint Procedures 

§ 60–300.60 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 

without discrimination based on their 

status as a 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. 

OFCCP may extend the temporal scope 

of the desk audit beyond that set forth 

in the scheduling letter if OFCCP deems 

it necessary to carry out its investigation 

of potential violations of this Part. 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 Section 4212 and its 

regulations; 

(3) Compliance check. A 

determination of whether the contractor 


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has maintained records consistent with 

§ 60–300.80; OFCCP may request the 

documents be provided either on-site or 

off-site; or 

(4) Focused review. A 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 § 60–300.62. 

(c) Reporting Requirements. During a 

compliance evaluation, OFCCP may 

verify whether the contractor has 

complied with applicable reporting 

requirements required under regulations 

promulgated by the Veterans’ 

Employment and Training Service 

(VETS). If the contractor has not 

complied with any such reporting 

requirement, OFCCP will notify VETS. 

(d) Pre-award compliance 

evaluations. Each agency will include in 

the invitation for bids for each formally 

advertised nonconstruction contract or 

state at the outset of negotiations for 

each negotiated contract, that if the 

award, when let, should total $10 

million or more, the prospective 

contractor and its known first-tier 

subcontractors with subcontracts of $10 

million or more will be subject to a 

compliance evaluation before the award 

of the contract unless OFCCP has 

conducted an evaluation and found 

them to be in compliance with Section 

4212 within the preceding 24 months. 

The awarding agency will notify OFCCP 

and request appropriate action and 

findings in accordance with this 

subsection. Within 15 days of the notice 

OFCCP will inform the awarding agency 

of its intention to conduct a pre-award 

compliance evaluation. If OFCCP does 

not inform the awarding agency within 

that period of its intention to conduct a 

pre-award compliance evaluation, 

clearance shall be presumed and the 

awarding agency is authorized to 

proceed with the award. If OFCCP 

informs the awarding agency of its 

intention to conduct a pre-award 

compliance evaluation, OFCCP will be 

allowed an additional 20 days after the 

date that it so informs the awarding 

agency to provide its conclusions. If 

OFCCP does not provide the awarding 

agency with its conclusions within that 

period, clearance will be presumed and 

the awarding agency is authorized to 

proceed with the award. . 

§ 60–300.61 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 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) 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 service delivery system 

shall cooperate with the Director 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; 

(ii) Name and address of the 

contractor who committed the alleged 

violation; 

(iii) Documentation showing that the 

individual is a 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; 

(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 

Director decides not to refer the matter 

to the Solicitor of Labor for enforcement 

proceedings against the contractor 

pursuant to § 60–300.65(a)(1), the 

complainant and contractor shall be so 

notified. The Director, 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 Director 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 Director 

decides to reconsider the determination 

of a Notification of Results of 

Investigation, the Director 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 

§ 60–300.62. 

§ 60–300.62 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 


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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. 

§ 60–300.63 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 

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. 

§ 60–300.64 Show cause notices. 

When the Director 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– 

300.65). 

§ 60–300.65 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 

Director may, within the limitations of 

applicable law, seek appropriate judicial 

action to enforce the contractual 

provisions set forth in § 60–300.5, 

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 and Labor-Management, 

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; references to 

‘‘equal opportunity clause’’ shall mean 

the equal opportunity clause published 

at § 60–300.5; and references to 

‘‘regulations’’ shall mean the regulations 

contained in this part. 

§ 60–300.66 Sanctions and penalties. 

(a) Withholding progress payments. 

With the prior approval of the Director, 

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 § 60–300.68. 

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. 

(d) Hearing opportunity. An 

opportunity for a formal hearing shall be 

afforded to a contractor before the 

imposition of any sanction or penalty. 

§ 60–300.67 Notification of agencies. 

The Director shall ensure that the 

heads of all agencies are notified of any 

debarments taken against any 

contractor. 

§ 60–300.68 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 Director 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 Director 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 Director may conduct a 

compliance evaluation of the contractor 

and may require the contractor to 

supply additional information regarding 

the request for reinstatement. The 


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Director 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 

Director’s decision. The petition shall be 

served on the Director and the Associate 

Solicitor for Civil Rights and LaborManagement and shall include the 

decision as an appendix. The Director 

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 

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. 

§ 60–300.69 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 

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 

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 

Director against any contractor who 

violates this obligation. 

§ 60–300.70 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 

§ 60–300.80 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 

period will 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. Records required by 

§§ 60–250.44(f)(4), 60–250.44(k), 60– 

250.45(c), and Paragraph 5 of the equal 

opportunity clause in § 250.5(a) shall be 

maintained by all contractors for a 

period of five years from the date of the 

making of the record. 

(b) Failure to preserve records. Failure 

to preserve complete and accurate 

records as required by this part 

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. 

(c) The requirements of this section 

shall apply only to records made or kept 

on or after the date that the Office of 

Management and Budget has cleared the 

requirements. 

§ 60–300.81 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, accounts, and 

records, including electronic records, 

and any other material OFCCP deems 

relevant to the matter under 

investigation and pertinent to 

compliance with the Act or this part. 

Contractors must also provide OFCCP 

access to these materials, including 

electronic records, off-site for purposes 

of conducting compliance evaluations 

and complaint investigations. Upon 

request, the contractor must provide 

OFCCP information about all format(s), 

including specific electronic formats, in 

which its records and other information 

are available. The contractor must 

provide records and other information 

in any available format requested by 

OFCCP. 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. 

§ 60–300.82 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. 


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(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. 

§ 60–300.83 Rulings and interpretations. 

Rulings under or interpretations of the 

Act and this part shall be made by the 

Director. 

§ 60–300.84 Responsibilities of 

appropriate employment service delivery 

system. 

By statute, appropriate employment 

service delivery systems are required to 

refer qualified protected veterans to fill 

employment openings listed by 

contractors with such appropriate 

employment delivery systems pursuant 

to the mandatory job listing 

requirements of the equal opportunity 

clause and are required to give priority 

to protected veterans in making such 

referrals. The employment service 

delivery systems shall provide OFCCP, 

upon request, information pertinent to 

whether the contractor is in compliance 

with the mandatory job listing 

requirements of the equal opportunity 

clause. 

Appendix A to Part 60–300—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– 

300.1(c). Contractors are obligated to provide 

reasonable accommodation and to take 

affirmative action. Reasonable 

accommodation under Section 4212, 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 Section 4212 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 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’’ disabled veteran, 

unless the contractor can demonstrate that 

the accommodation would impose an undue 

hardship on the operation of its business. As 

stated in § 60–300.2(t), a disabled veteran is 

qualified if he or she has the ability to 

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 

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 disabled 

veterans. As stated in § 60–300.42(a) (see also 

Appendix B of this part), the contractor is 

required to invite applicants who have been 

provided an offer of employment, before they 

are placed on the contractor’s payroll, to 

indicate whether they are a disabled veteran 

who may be covered by the Act and wish to 

benefit under the contractor’s affirmative 

action program. Section 60–300.42(d) further 

provides that the contractor must seek the 

advice of disabled veterans who ‘‘selfidentify’’ in this way as to reasonable 

accommodation. Moreover, § 60–300.44(d) 

provides that if an employee who is a known 

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 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 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 disabled veterans to perform the 

essential functions of the position held or 

desired; and (3) accommodations that enable 

employees who are 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 

funding, the disabled veteran must 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. The definition for ‘‘reasonable 

accommodation’’ in § 60–300.2(u) 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 must consult with the disabled 

veteran in deciding on the reasonable 

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 (1–800–526– 

7234 or 1–800–232–9675), private disability 

organizations (including those that serve 

veterans), and other employers. 


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6. With respect to accommodations that 

can permit an employee who is a 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 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 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 § 60–300.2(u) is job 

restructuring. This may involve reallocating 

or redistributing those nonessential, marginal 

job functions which a qualified disabled 

veteran cannot perform to another position. 

Accordingly, if a clerical employee who is a 

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 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 disabled 

veteran. Job restructuring may also involve 

allowing part-time or modified work 

schedules. For instance, flexible or adjusted 

work schedules could benefit disabled 

veterans who cannot work a standard 

schedule because of the need to obtain 

medical treatment, or 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 

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 

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 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’’ must 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 disabled veteran at 

the salary of the higher graded position, and 

must do so if it maintains the salary of 

reassigned employees who are not disabled 

veterans. It should also be noted that the 

contractor is not required to promote a 

disabled veteran as an accommodation. 

11. With respect to the application process, 

reasonable accommodations may include the 

following: (1) Providing information 

regarding job vacancies in a form accessible 

to 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 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 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 60–300—Sample 

Invitation to Self-Identify 

[Sample Invitation to Self-Identify] 

1. This employer is a Government 

contractor subject to the Vietnam Era 

Veterans’ Readjustment Assistance Act of 

1974, 38 U.S.C. 4212 (Section 4212), as 

amended, which requires Government 

contractors to take affirmative action to 

employ and advance in employment: (1) 

Qualified disabled veterans; (2) recently 

separated veterans; (3) active duty wartime or 

campaign badge veterans; and (4) Armed 

Forces service medal veterans. These 

classifications are defined as follows: 

• A ‘‘qualified disabled veteran’’ means 

someone who has the ability to perform the 

essential functions of the employment 

position with or without reasonable 

accommodation, and also is one of the 

following: 

• a veteran of the U.S. military, ground, 

naval or air service 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 Secretary of Veterans Affairs; or 

• a person who was discharged or released 

from active duty because of a serviceconnected disability 

• A ‘‘recently separated veteran’’ means 

any veteran during the three-year period 

beginning on the date of such veteran’s 

discharge or release from active duty in the 

U.S. military, ground, naval, or air service. 

• An ‘‘active duty wartime or campaign 

badge veteran’’ means a veteran who served 

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. 

• An ‘‘Armed forces service medal veteran’’ 

means a 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. 

2. [THE FOLLOWING TEXT SHOULD BE 

USED WHEN EXTENDING THE ‘‘PRE– 

OFFER’’ INVITATION TO PROTECTED 

VETERANS REQUIRED BY 41 CFR 60– 

300.42(a). THE DEFINITIONS OF THE 

SEPARATE CLASSIFICATIONS OF 

PROTECTED VETERANS SET FORTH IN 

PARAGRAPH 1 MUST ACCOMPANY THIS 

SELF–IDENTIFICATION REQUEST.] If you 

believe you belong to any of the categories of 

protected veterans listed above, please 

indicate by checking the appropriate box 

below. As a Government contractor subject to 

Section 4212, we request this information in 

order to measure the effectiveness of the 

outreach and positive recruitment efforts we 

undertake pursuant to Section 4212. 

[ ] I IDENTIFY AS ONE OR MORE OF THE 

CLASSIFICATIONS OF PROTECTED 

VETERAN LISTED ABOVE 

[ ] I AM NOT A PROTECTED VETERAN 

[ ] I CHOOSE NOT TO PROVIDE THIS 

INFORMATION 

[THE FOLLOWING TEXT SHOULD BE 

USED WHEN EXTENDING THE ‘‘POST– 

OFFER’’ INVITATION TO PROTECTED 

VETERANS REQUIRED BY 41 CFR 60– 

300.42(b). THE DEFINITIONS OF THE 

SEPARATE CLASSIFICATIONS OF 

PROTECTED VETERANS SET FORTH IN 

PARAGRAPH 1 MUST ACCOMPANY THIS 

SELF–IDENTIFICATION REQUEST.] As a 

Government contractor subject to Section 

4212, we are required to submit a report 

(VETS–100A) to the United States 

Department of Labor each year identifying 

the number of our employees belonging to 

each ‘‘protected veteran’’ category. If you 


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believe you belong to any of the categories of 

protected veterans listed above, please 

indicate by checking the appropriate box 

below. 

I BELONG TO THE FOLLOWING 

CLASSIFICATIONS OF PROTECTED 

VETERANS (CHOOSE ALL THAT APPLY): 

[ ] QUALIFIED DISABLED VETERAN 

[ ] RECENTLY SEPARATED VETERAN 

[ ] ACTIVE WARTIME OR CAMPAIGN 

BADGE VETERAN 

[ ] ARMED FORCES SERVICE MEDAL 

VETERAN 

lllllllllllllllllllll

[ ] I am a protected veteran, but I choose 

not to self-identify the classifications to 

which I belong. 

[ ] I am NOT a protected veteran. 

[ ] I choose not to provide this information. 

If you are a disabled veteran it would assist 

us if you tell us whether there are 

accommodations we could make that would 

enable you to perform the job properly and 

safely, including special equipment, changes 

in the physical layout of the job, changes in 

the way the job is customarily performed, 

provision of personal assistance services or 

other accommodations. This information will 

assist us in making reasonable 

accommodations for your disability. 

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 disabled 

veterans, and regarding necessary 

accommodations; (ii) first aid and safety 

personnel may be informed, when and to the 

extent appropriate, if you have a condition 

that might require emergency treatment; and 

(iii) Government officials engaged in 

enforcing laws administered by the Office of 

Federal Contract Compliance Programs, 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.] 

[FR Doc. 2011–8693 Filed 4–25–11; 8:45 am] 

BILLING CODE 4510–45–P 


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