72148 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Part 60–250 

RIN 1215–AB24 

Affirmative Action and 

Nondiscrimination Obligations of 

Contractors and Subcontractors 

Regarding Protected Veterans 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

regulations implementing the 

affirmative action provisions of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, 38 

U.S.C. 4212 (2001) (‘‘Section 4212’’ or 

‘‘VEVRAA’’). This rule makes three 

general revisions to the VEVRAA 

regulations. First, it generally conforms 

the VEVRAA regulations to the Veterans 

Employment Opportunities Act of 1998 

(VEOA) and the Veterans Benefits and 

Health Care Improvement Act of 2000 

(VBHCIA). Second, it removes 

references to letters of commitment 

because the violations formerly 

incorporated into the letter of 

commitment are now summarized in the 

Compliance Evaluation Closure Letter. 

Third, it removes language about the 

effective date of the rule published in 

1998 because that language is obsolete. 

EFFECTIVE DATE: These regulations are 

effective January 3, 2006. 

FOR FURTHER INFORMATION CONTACT: 

James C. Pierce, Acting Director, 

Division of Policy, Planning, and 

Program Development, Office of Federal 

Contract Compliance Programs, 200 

Constitution Avenue, NW., Room 

N3422, Washington, DC 20210. 

Telephone: (202) 693–0102 (voice) or 

(202) 693–1337 (TTY). 

SUPPLEMENTARY INFORMATION: 

Background 

Prior to recent amendments, the 

affirmative action provisions of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, 38 

U.S.C. 4212 (‘‘Section 4212’’ or 

‘‘VEVRAA’’) required parties holding 

Government contracts or subcontracts of 

$10,000 or more to ‘‘take affirmative 

action to employ and advance in 

employment qualified special disabled 

veterans and veterans of the Vietnam 

era.’’ The Department of Labor’s Office 

of Federal Contract Compliance 

Programs (OFCCP) has published 

regulations implementing VEVRAA at 

41 CFR part 60–250. 

This final rule revises the OFCCP 

regulations to conform to the 

requirements of the Veterans 

Employment Opportunities Act of 1998 

(VEOA) and the Veterans Benefits and 

Health Care Improvement Act of 2000 

(VBHCIA). Today’s rule does not 

incorporate changes made to VEVRAA 

by the Jobs for Veterans Act (JVA) that 

was signed by the President on 

November 7, 2002. JVA amended the 

VEVRAA requirements applicable to 

Federal contracts and subcontracts 

entered on or after December 1, 2003, by 

raising the contract amount threshold 

for VEVRAA coverage, modifying the 

categories of protected veterans, and 

making changes to job listing 

requirements. At a later date, OFCCP 

will issue regulations implementing the 

JVA changes that will apply to contracts 

entered on or after December 1, 2003. 

Except as set forth below, the contents 

of part 60–250 remain unchanged from 

the rule being amended. VEOA 

amended section 4212(a) in two ways. 

First, section 7 of VEOA raised the 

amount of a contract required to 

establish VEVRAA coverage from 

$10,000 to $25,000. Second, section 7 of 

VEOA granted VEVRAA protection to a 

new group of veterans, called ‘‘other 

protected veterans’’—those who have 

served on active duty during a war or 

in a campaign or expedition for which 

a campaign badge has been authorized. 

VBHCIA amended VEVRAA by 

creating a new class of protected 

veteran, called ‘‘recently separated 

veteran.’’ Recently separated veteran is 

defined in VEVRAA as ‘‘any veteran 

during the one-year period beginning on 

the date of such veteran’s discharge or 

release from active duty.’’ However, the 

term ‘‘recently separated veteran’’ is 

also defined in the Workforce 

Investment Act of 1998 (29 U.S.C. 2801 

et seq.) (WIA) as ‘‘any veteran who 

applies for participation under this 

chapter within 48 months after the 

discharge or release from active 

military, naval, or air service.’’ The WIA 

is administered by the Department of 

Labor’s Employment and Training 

Administration (ETA), which has issued 

regulations implementing the WIA at 20 

CFR part 660–671. Although ETA does 

not refer to ‘‘recently separated veteran’’ 

in its regulations, ETA uses the WIA 

definition of ‘‘recently separated 

veteran.’’ To eliminate confusion, 

‘‘recently separated veteran’’ means, for 

the purposes of this rule, any veteran 

during the one-year period beginning on 

the date of such veteran’s discharge or 

release from active duty. 

Today’s rule does not carry forward 

several outdated provisions of the rule 

being amended relating to the 

implementation of that rule after it was 

published: (1) The effective date of that 

rule; (2) a statement that the rule did not 

apply retroactively; and (3) a statement 

that contractors needed to update their 

AAPs within 120 days of the rule’s 

effective date (January 4, 1999). 

Information about the implementation 

of today’s rule is contained in the 

preamble, rather than in the rule. 

Today’s rule will become effective 30 

days after publication and will apply 

prospectively. Contractors are required 

to update their affirmative action 

programs (AAP) to reflect the 

requirements of today’s rule during their 

standard 12-month AAP review and 

updating cycle. A contractor that has 

prepared an AAP under the old 

regulations may maintain that AAP for 

the duration of the AAP year even if that 

AAP year overlaps with the effective 

date of the new regulations. 

The rule being amended references 

letters of commitment. OFCCP 

discontinued the use of the letter of 

commitment, which was used to resolve 

minor technical deficiencies, in 1998. 

OFCCP replaced the letter of 

commitment with the compliance 

evaluation closure letter, which is used 

by OFCCP to close a review where 

minor or no violations are found. 

Consequently, references to letters of 

commitment have been removed from 

§§ 60–250.62 and 60–250.63. 

We discuss specific changes in the 

Section-by-Section Analysis below. 

Section-by-Section Analysis 

The following analysis focuses on a 

comparison of today’s rule with the rule 

being amended found at 41 CFR part 

60–250. The analysis discusses VEOA 

and VBHCIA where necessary to place 

today’s rule in context. Sections with no 

changes are not discussed. 

Part 60–250 

OFCCP is amending the Part heading 

by adding ‘‘Recently Separated 

Veterans’’ and ‘‘Other Protected 

Veterans’’ to include veterans protected 

under VEOA and VBHCIA. In the table 

of contents, the heading for §§ 250.62 

and 250.63 are updated to correspond to 

the headings in the regulatory text and 

the table of contents reference for 

§ 250.85 is deleted (see discussion of 

those sections below). 

OFCCP is amending the United States 

Code authority citation to denote that 

the VEVRAA statutory authority being 

referenced is a pre-JVA amendment. As 

discussed above, JVA amendments to 

VEVRAA apply only to contracts 

entered on or after December 1, 2003. 

Because this regulation draws its 

authority from the VEVRAA as enacted 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72149 

before its amendment by the JVA, the 

date in the citation has been added. 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

Section 60–250.1 Purpose, 

Applicability and Construction 

This section amends paragraphs (a) 

and (c)(2) by adding ‘‘recently separated 

veterans’’ and ‘‘other protected 

veterans’’ to include veterans protected 

under VEOA and VBHCIA. 

Additionally, paragraph (b) is amended 

to state that a Government contract or 

subcontract of at least $25,000 is 

covered by the Act. 

Section 60–250.2 Definitions 

This section amends paragraphs (j), 

(k), and (m) (the definitions for the 

terms ‘‘contractor,’’ ‘‘prime contractor,’’

and ‘‘subcontractor,’’ respectively) to 

increase the coverage threshold amount 

from $10,000 to $25,000 to conform to 

the requirements of the VEOA. 

Paragraph (q) adds the definition of 

‘‘other protected veteran,’’ the new class 

of veterans protected by VEOA. 

Paragraph (r) adds the definition of 

‘‘recently separated veteran,’’ the new 

class of veterans protected under 

VBHCIA. With the addition of 

paragraphs (q) and (r), we redesignate 

paragraphs (q) through (u) as paragraphs 

(s) through (w), respectively. 

Section 60–250.4 Coverage and 

Waivers 

This section amends paragraphs (a)(1) 

and (a)(2) to increase the contract or 

subcontract threshold amount from 

$10,000 to $25,000 to conform to the 

requirements of the VEOA. 

Section 60–250.5 Equal Opportunity 

Clause 

This section adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to paragraphs (a), (a)(1), 

(a)(9), and (a)(10) to include veterans 

protected under VEOA and VBHCIA. 

Paragraph (a)(11) raises the subcontract 

or purchase order threshold amount 

from $10,000 to $25,000 to conform to 

the requirements of the VEOA. 

Subpart B—Discrimination Prohibited 

Section 60–250.21 Prohibitions 

This section adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to paragraphs (a), (b), (c), 

(d)(1), (e), (g)(1), and (i) to include 

veterans protected under VEOA and 

VBHCIA. 

Section 60–250.22 Direct Threat 

Defense 

This section replaces the reference to 

§ 60–250.2(u) with § 60–250.2(w) to 

conform to the redesignating in § 60–

250.2. 

Subpart C—Affirmative Action 

Program 

Section 60–250.42 Invitation To SelfIdentify 

This section adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to paragraphs (b) and (f) to 

include veterans protected under VEOA 

and VBHCIA. 

Section 60–250.43 Affirmative Action 

Policy 

This section adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to include veterans 

protected under VEOA and VBHCIA. 

Section 60–250.44 Required Contents 

of Affirmative Action Programs 

This section adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to paragraphs (a), (a)(2), 

(a)(3), (b), (e), (f), (f)(1), (f)(3), (f)(4), 

(f)(5), (f)(7), (f)(8), (g)(1), (g)(2)(ii), 

(g)(2)(vii), and (h)(1)(iv) to include 

veterans protected under VEOA and 

VBHCIA. 

Subpart D—General Enforcement and 

Complaint Procedures 

Section 60–250.60 Compliance 

Evaluations 

This section adds ‘‘recently separated 

veteran’’ and ‘‘other protected veteran’’

to paragraph (a) to include veterans 

protected under VEOA and VBHCIA. 

The Office of the Assistant Secretary 

for Veterans’ Employment and Training 

(OASVET) has been renamed the 

Veterans’ Employment and Training 

Service (VETS). The rule is updated 

with the agency’s current name. 

Section 60–250.61 Complaint 

Procedures 

This section adds ‘‘recently separated 

veteran’’ and ‘‘other protected veteran’’

to paragraph (b)(iii) to include veterans 

protected under VEOA and VBHCIA. 

Section 60–250.62 Conciliation 

Agreements 

This section deletes paragraph (b), 

which referred to letters of commitment. 

In 1998 OFCCP discontinued the use of 

the letter of commitment, which was 

used to resolve minor technical 

deficiencies. Discontinuing the use of 

the Letter of Commitment, OFCCP Order 

Number ADM Notice/Other, Transmittal 

Number 226 (August 5, 1998). The letter 

of commitment was replaced with the 

compliance evaluation closure letter, 

which is used by OFCCP to close a 

compliance evaluation when minor or 

no violations are found. Consequently, 

the reference in § 60–250.62(b) to the 

letter of commitment is no longer 

necessary. The heading for § 250.62 also 

deletes the reference to the letter of 

commitment. 

Section 60–250.63 Violation of 

Conciliation Agreements 

We have deleted paragraph (d) 

because it references the letter of 

commitment. As discussed above, 

OFCCP no longer uses the letter of 

commitment. Additionally, the heading 

to § 250.63 deletes the reference to the 

letter of commitment. 

Section 60–250.65 Enforcement 

Proceedings 

This rule adds a citation to the preJVA amendment to VEVRAA in 

paragraph 60–250.65(b)(3). Paragraph 

(b)(3) states that references in 41 CFR 

part 60–30 to Executive Order 11246 

shall mean the ‘‘Vietnam Era Veterans’

Readjustment Assistance Act, as 

amended,’’ for purposes of hearings 

held pursuant to part 60–250. This 

citation is added because the ‘‘Vietnam 

Era Veterans’ Readjustment Assistance 

Act, as amended,’’ references all 

amendments to VEVRAA, including 

amendments by JVA. As stated above, 

this rule does not incorporate 

amendments to VEVRAA made by JVA. 

Accordingly, a U.S.C. citation, 38 U.S.C. 

4212 (2001), is added to clarify that the 

reference is to the pre-JVA amendment 

to VEVRAA. 

Section 60–250.69 Intimidation and 

Interference 

This section adds ‘‘recently separated 

veterans’’ and ‘‘other protected 

veterans’’ to paragraphs (a)(2) and (a)(3) 

to include veterans protected under 

VEOA and VBHCIA. 

Subpart E—Ancillary Matters 

Section 60–250.80 Recordkeeping 

This rule removes paragraph (c) from 

§ 60–250.80. Paragraph (c) states that the 

recordkeeping requirements of § 60–

250.80 apply only to records made or 

kept on or after the date that the Office 

of Management and Budget has cleared 

the requirements. This paragraph’s 

discussion of the effective date for this 

section is unnecessary because the date 

referenced the new recordkeeping 

requirement contained in the rule 

published in 1998. 

72150 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

Section 60–250.84 Responsibilities of 

Local Employment Service Offices 

This section adds ‘‘recently separated 

veterans’’ and ‘‘other protected 

veterans’’ to paragraph (a) to include 

veterans protected under VEOA and 

VBHCIA. 

Section 60–250.85 Effective Date 

This rule removes § 60–250.85. This 

section’s discussion of effective dates 

for the rule being amended is 

unnecessary, as OFCCP no longer 

includes effective dates in the 

regulations. 

Appendix A to Part 60–250—Guidelines 

on a Contractor’s Duty To Provide 

Reasonable Accommodation 

This appendix amends paragraphs 5 

and 8 to replace the reference to § 60–

250.2(r) with § 60–250.2(t) to conform to 

the redesignating in § 60–250.2. We also 

update the phone numbers for the EEOC 

and add a second toll free number for 

the Job Accommodation Network (JAN) 

in paragraph 6. Lastly, we update this 

appendix with the information that JAN 

is now operated by the Office of 

Disability Employment Policy, in the 

Department of Labor. 

Appendix B to Part 60–250—Sample 

Invitation To Self-Identify 

Appendix B adds ‘‘recently separated 

veteran(s)’’ and ‘‘other protected 

veteran(s)’’ to paragraphs 1, 2, and 7 to 

include veterans protected under VEOA 

and VBHCIA. In addition, in paragraph 

2 we place the definitions of ‘‘recently 

separated veteran’’ and ‘‘other protected 

veteran’’ after the definition of veteran 

of the Vietnam era. 

Appendix C to Part 60–250—Review of 

Personnel Processes 

Appendix C adds ‘‘recently separated 

veteran’’ and ‘‘other protected veteran’’

to paragraphs 1, 2, and 3 to include 

veterans protected under VEOA and 

VBHCIA. 

Regulatory Procedures 

Publication in Final 

The Department of Labor has 

determined that this rulemaking need 

not be published as a proposed rule, as 

generally required by the 

Administrative Procedure Act, 5 U.S.C. 

553. The three substantive revisions in 

the rule are nondiscretionary ministerial 

actions that merely incorporate, without 

change, statutory amendments into 

preexisting regulations: 

(1) The increase in the contract 

threshold amount from $10,000 to 

$25,000; 

(2) The addition of the group of 

veterans protected under VEOA; and 

(3) The addition of the group of 

veterans protected under VBHCIA. 

Because these changes are required by 

statute, there is good cause for OFCCP 

to find that the notice and public 

comment procedure is unnecessary 

pursuant to the Administrative 

Procedure Act, 5 U.S.C. 553(b)(3)(B). 

This rule removes five outdated 

regulatory references. First, the 

Department is amending its statutory 

authority citation to reference VEVRAA 

as it stood before amendment by JVA, 

because this regulation will not apply to 

contracts and subcontracts covered by 

VEVRAA as amended by JVA. Second, 

the Department is deleting paragraph (c) 

in § 60–250.80. This paragraph’s 

discussion of the effective date of the 

recordkeeping requirements of § 60–250 

is unnecessary because the date in the 

regulation referenced new 

recordkeeping requirements contained 

in the rule published in 1998. Third, the 

Department is deleting § 60–250.85. 

This section’s discussion of effective 

dates for the rule being amended is 

unnecessary because the dates 

referenced in this section applied to the 

rule published in 1998. Additionally, 

information on effective dates in DOL 

regulations is now contained in a rule’s 

preamble. Fourth, the Department has 

replaced reference to the ‘‘President’s 

Committee on Employment of People 

with Disabilities’’ with ‘‘Office of 

Disability Employment Policy, Labor’’ to 

account for the transition of duties 

between the two groups. These changes 

are merely housekeeping amendments 

that will not have an effect on regulated 

entities. Consequently, there is good 

cause for OFCCP to find that the notice 

and public comment procedure is 

unnecessary pursuant to the 

Administrative Procedure Act, 5 U.S.C. 

553(b)(3)(B). 

Finally, this rule removes reference to 

the letter of commitment. OFCCP 

discontinued the use of the letter of 

commitment in 1998. In the past, a letter 

of commitment was used to resolve 

minor technical deficiencies identified 

by OFCCP during a compliance review 

of a Federal contractor or subcontractor. 

Because this is a change of agency 

procedure or practice, notice and public 

comment are not required under the 

Administrative Procedure Act, 5 U.S.C. 

553(b)(3)(A). 

Executive Order 12866 

The Department is issuing this rule in 

conformance with Executive Order 

12866. This rule is not significant for 

purposes of Executive Order 12866 and 

therefore need not be reviewed by the 

Office of Management and Budget. 

The Department bases its conclusion 

on the fact that this final rule does not 

substantively change the existing 

obligation of Federal contractors to 

apply a policy of nondiscrimination and 

affirmative action in their employment 

of protected veterans. For example, 

although the categories of protected 

veterans are expanded pursuant to 

statutory changes, the substance of the 

nondiscrimination and affirmative 

action obligations to be afforded 

protected veterans remains the same. 

Executive Order 13132 

OFCCP has reviewed the rule in 

accordance with Executive Order 13132 

regarding federalism, and has 

determined that it does not have 

‘‘federalism implications.’’ The rule will 

not ‘‘have substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government.’’

Regulatory Flexibility Act 

The rule clarifies existing 

requirements for Federal contractors. In 

view of this fact and because the rule 

does not substantively change existing 

obligations for Federal contractors, we 

certify that the rule will not have a 

significant economic impact on a 

substantial number of small business 

entities. Therefore, a regulatory 

flexibility analysis under the Regulatory 

Flexibility Act is not required. 

Unfunded Mandates Reform 

Executive Order 12875—This rule 

does not create an unfunded Federal 

mandate upon any State, local, or tribal 

government. 

Unfunded Mandates Reform Act of 

1995—This does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, in the aggregate, 

of $100 million or more, or increased 

expenditures by the private sector of 

$100 million or more. 

Paperwork Reduction Act 

The information collection 

requirements contained in the existing 

VEVRAA regulations, with the 

exception of those related to complaint 

procedures, are currently approved 

under OMB Control No. 1215–0072 

(Recordkeeping and Reporting 

Requirements-Supply and Service) and 

OMB Control No. 1215–0163 

(Construction Recordkeeping and 

Reporting). The information collection 

requirements contained in the existing 

complaint procedures regulation are 

currently approved under OMB Control 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72151 

No. 1215–0131. This final rule amends 

the regulations implementing VEVRAA 

to incorporate the changes to the 

contract coverage threshold and the 

categories of covered veterans made by 

VEOA and VBHCIA. The increase in the 

contract coverage threshold from 

$10,000 to $25,000 may result in a 

decrease in the number of respondents 

and burden hours. However, this final 

rule does not make any changes to the 

currently approved information 

collections. Consequently, this final rule 

need not be reviewed by the Office of 

Management and Budget under the 

authority of the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. 

List of Subjects in 41 CFR Part 60–250 

Administrative practice and 

procedure, Civil rights, Employment, 

Equal employment opportunity, 

Government contracts, Government 

procurement, Individuals with 

disabilities, Investigations, Reporting 

and recordkeeping requirements, and 

Veterans. 

Signed at Washington, DC, this 22nd day 

of November, 2005. 

Victoria A. Lipnic, 

Assistant Secretary for Employment 

Standards. 

Charles E. James, Sr., 

Deputy Assistant Secretary for Federal 

Contract Compliance. 

■ Accordingly, under authority of 38 

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

Federal Regulations, Chapter 60, Part 

60–250, is revised to read as follows: 

PART 60–250—AFFIRMATIVE ACTION 

AND NONDISCRIMINATION 

OBLIGATIONS OF CONTRACTORS 

AND SUBCONTRACTORS 

REGARDING SPECIAL DISABLED 

VETERANS, VETERANS OF THE 

VIETNAM ERA, RECENTLY 

SEPARATED VETERANS, AND OTHER 

PROTECTED VETERANS 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

Sec. 

60–250.1 Purpose, applicability and 

construction. 

60–250.2 Definitions. 

60–250.3 [Reserved] 

60–250.4 Coverage and waivers. 

60–250.5 Equal opportunity clause. 

Subpart B—Discrimination Prohibited 

60–250.20 Covered employment activities. 

60–250.21 Prohibitions. 

60–250.22 Direct threat defense. 

60–250.23 Medical examinations and 

inquiries. 

60–250.24 Drugs and alcohol. 

60–250.25 Health insurance, life insurance 

and other benefit plans. 

Subpart C—Affirmative Action Program 

60–250.40 Applicability of the affirmative 

action program requirement. 

60–250.41 Availability of affirmative action 

program. 

60–250.42 Invitation to self-identify. 

60–250.43 Affirmative action policy. 

60–250.44 Required contents of affirmative 

action programs. 

Subpart D—General Enforcement and 

Complaint Procedures 

60–250.60 Compliance evaluations. 

60–250.61 Complaint procedures. 

60–250.62 Conciliation agreements. 

60–250.63 Violation of conciliation 

agreements. 

60–250.64 Show cause notices. 

60–250.65 Enforcement proceedings. 

60–250.66 Sanctions and penalties. 

60–250.67 Notification of agencies. 

60–250.68 Reinstatement of ineligible 

contractors. 

60–250.69 Intimidation and interference. 

60–250.70 Disputed matters related to 

compliance with the Act. 

Subpart E—Ancillary Matters 

60–250.80 Recordkeeping. 

60–250.81 Access to records. 

60–250.82 Labor organizations and 

recruiting and training agencies. 

60–250.83 Rulings and interpretations. 

60–250.84 Responsibilities of local 

employment service offices. 

Appendix A to Part 60–250—Guidelines on 

a Contractor’s Duty To Provide 

Reasonable Accommodation 

Appendix B to Part 60–250—Sample 

Invitation To Self-Identify 

Appendix C to Part 60–250—Review of 

Personnel Processes 

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

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

(2001) (amended 2002) and 4212; E.O. 11758 

(3 CFR, 1971–1975 Comp., p. 841). 

Subpart A—Preliminary Matters, Equal 

Opportunity Clause 

§ 60–250.1 Purpose, applicability and 

construction. 

(a) Purpose. The purpose of the 

regulations in this part is to set forth the 

standards for compliance with the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended (38 

U.S.C. 4212, or VEVRAA), which 

requires Government contractors and 

subcontractors to take affirmative action 

to employ and advance in employment 

qualified special disabled veterans, 

veterans of the Vietnam era, recently 

separated veterans, and other protected 

veterans. 

(b) Applicability. This part applies to 

all Government contracts and 

subcontracts of $25,000 or more, for the 

purchase, sale or use of personal 

property or nonpersonal services 

(including construction): Provided, That 

subpart C of this part applies only as 

described in § 60–250.40(a). Compliance 

by the contractor with the provisions of 

this part will not necessarily determine 

its compliance with other statutes, and 

compliance with other statutes will not 

necessarily determine its compliance 

with this part. 

(c) Construction—(1) In general. The 

Interpretive Guidance on Title I of the 

Americans with Disabilities Act (ADA) 

(42 U.S.C. 12101, et seq.) set out as an 

appendix to 29 CFR part 1630 issued 

pursuant to Title I may be relied upon 

for guidance in interpreting the parallel 

provisions of this part. 

(2) Relationship to other laws. This 

part does not invalidate or limit the 

remedies, rights, and procedures under 

any Federal law or the law of any state 

or political subdivision that provides 

greater or equal protection for the rights 

of special disabled veterans, veterans of 

the Vietnam era, recently separated 

veterans, or other protected veterans as 

compared to the protection afforded by 

this part. It may be a defense to a charge 

of violation of this part that a challenged 

action is required or necessitated by 

another Federal law or regulation, or 

that another Federal law or regulation 

prohibits an action (including the 

provision of a particular reasonable 

accommodation) that would otherwise 

be required by this part. 

§ 60–250.2 Definitions. 

For the purpose of this part: 

(a) Act means the Vietnam Era 

Veterans’ Readjustment Assistance Act 

of 1974, as amended, 38 U.S.C. 4212 

(2001). 

(b) Equal opportunity clause means 

the contract provisions set forth in § 60–

250.5, ‘‘Equal opportunity clause.’’

(c) Secretary means the Secretary of 

Labor, United States Department of 

Labor, or his or her designee. 

(d) Deputy Assistant Secretary means 

the Deputy Assistant Secretary for 

Federal Contract Compliance of the 

United States Department of Labor, or 

his or her designee. 

(e) Government means the 

Government of the United States of 

America. 

(f) United States, as used in this part, 

shall include the several States, the 

District of Columbia, the Virgin Islands, 

the Commonwealth of Puerto Rico, 

Guam, American Samoa, the 

Commonwealth of the Northern Mariana 

Islands, and Wake Island. 

(g) Recruiting and training agency 

means any person who refers workers to 

any contractor, or who provides or 

supervises apprenticeship or training for 

employment by any contractor. 

(h) Contract means any Government 

contract or subcontract. 

72152 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

1A 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 

(i) Government contract means any 

agreement or modification thereof 

between any contracting agency and any 

person for the purchase, sale or use of 

personal property or nonpersonal 

services (including construction). The 

term ‘‘Government contract’’ does not 

include agreements in which the parties 

stand in the relationship of employer 

and employee, and federally assisted 

contracts. 

(1) Modification means any alteration 

in the terms and conditions of a 

contract, including supplemental 

agreements, amendments and 

extensions. 

(2) Contracting agency means any 

department, agency, establishment or 

instrumentality of the United States, 

including any wholly owned 

Government corporation, which enters 

into contracts. 

(3) Person, as used in this paragraph 

(i) and paragraph (l) of this section, 

means any natural person, corporation, 

partnership or joint venture, 

unincorporated association, state or 

local government, and any agency, 

instrumentality, or subdivision of such 

a government. 

(4) Nonpersonal services, as used in 

this paragraph (i) and paragraph (l) of 

this section, includes, but is not limited 

to, the following: Utility, construction, 

transportation, research, insurance, and 

fund depository. 

(5) Construction, as used in this 

paragraph (i) and paragraph (l) of this 

section, means the construction, 

rehabilitation, alteration, conversion, 

extension, demolition, or repair of 

buildings, highways, or other changes or 

improvements to real property, 

including facilities providing utility 

services. The term also includes the 

supervision, inspection, and other onsite functions incidental to the actual 

construction. 

(6) Personal property, as used in this 

paragraph (i) and paragraph (l) of this 

section, includes supplies and contracts 

for the use of real property (such as 

lease arrangements), unless the contract 

for the use of real property itself 

constitutes real property (such as 

easements). 

(j) Contractor means, unless otherwise 

indicated, a prime contractor or 

subcontractor holding a contract of 

$25,000 or more. 

(k) Prime contractor means any 

person holding a contract of $25,000 or 

more, and, for the purposes of subpart 

D of this part, ‘‘General Enforcement 

and Complaint Procedures,’’ includes 

any person who has held a contract 

subject to the Act. 

(l) Subcontract means any agreement 

or arrangement between a contractor 

and any person (in which the parties do 

not stand in the relationship of an 

employer and an employee): 

(1) For the purchase, sale or use of 

personal property or nonpersonal 

services (including construction) which, 

in whole or in part, is necessary to the 

performance of any one or more 

contracts; or 

(2) Under which any portion of the 

contractor’s obligation under any one or 

more contracts is performed, 

undertaken, or assumed. 

(m) Subcontractor means any person 

holding a subcontract of $25,000 or 

more and, for the purposes of subpart D 

of this part, ‘‘General Enforcement and 

Complaint Procedures,’’ any person who 

has held a subcontract subject to the 

Act. 

(n)(1) Special disabled veteran means: 

(i) A veteran who is entitled to 

compensation (or who but for the 

receipt of military retired pay would be 

entitled to compensation) under laws 

administered by the Department of 

Veterans Affairs for a disability: 

(A) Rated at 30 percent or more; or 

(B) Rated at 10 or 20 percent in the 

case of a veteran who has been 

determined under 38 U.S.C. 3106 to 

have a serious employment handicap; or 

(ii) A person who was discharged or 

released from active duty because of a 

service-connected disability. 

(2) Serious employment handicap, as 

used in paragraph (n)(1) of this section, 

means a significant impairment of a 

veteran’s ability to prepare for, obtain, 

or retain employment consistent with 

such veteran’s abilities, aptitudes and 

interests. 

(o) Qualified special disabled veteran 

means a special disabled veteran who 

satisfies the requisite skill, experience, 

education and other job-related 

requirements of the employment 

position such veteran holds or desires, 

and who, with or without reasonable 

accommodation, can perform the 

essential functions of such position. 

(p) Veteran of the Vietnam era means 

a person who: 

(1) Served on active duty for a period 

of more than 180 days, and was 

discharged or released therefrom with 

other than a dishonorable discharge, if 

any part of such active duty occurred: 

(i) In the Republic of Vietnam 

between February 28, 1961, and May 7, 

1975; or 

(ii) Between August 5, 1964, and May 

7, 1975, in all other cases; or 

(2) Was discharged or released from 

active duty for a service-connected 

disability if any part of such active duty 

was performed: 

(i) In the Republic of Vietnam 

between February 28, 1961, and May 7, 

1975; or 

(ii) Between August 5, 1964, and May 

7, 1975, in all other cases. 

(q) Other protected veteran means a 

person who served on active duty 

during a war or in a campaign or 

expedition for which a campaign badge 

has been authorized, under laws 

administered by the Department of 

Defense. 

(r) Recently separated veteran means 

any veteran during the one-year period 

beginning on the date of such veteran’s 

discharge or release from active duty. 

(s) Essential functions—(1) In general. 

The term essential functions means 

fundamental job duties of the 

employment position the special 

disabled veteran holds or desires. The 

term essential functions does not 

include the marginal functions of the 

position. 

(2) A job function may be considered 

essential for any of several reasons, 

including but not limited to the 

following: 

(i) The function may be essential 

because the reason the position exists is 

to perform that function; 

(ii) The function may be essential 

because of the limited number of 

employees available among whom the 

performance of that job function can be 

distributed; and/or 

(iii) The function may be highly 

specialized so that the incumbent in the 

position is hired for his or her expertise 

or ability to perform the particular 

function. 

(3) Evidence of whether a particular 

function is essential includes, but is not 

limited to: 

(i) The contractor’s judgment as to 

which functions are essential; 

(ii) Written job descriptions prepared 

before advertising or interviewing 

applicants for the job; 

(iii) The amount of time spent on the 

job performing the function; 

(iv) The consequences of not requiring 

the incumbent to perform the function; 

(v) The terms of a collective 

bargaining agreement; 

(vi) The work experience of past 

incumbents in the job; and/or 

(vii) The current work experience of 

incumbents in similar jobs. 

(t) Reasonable accommodation—(1) 

The term reasonable accommodation 

means: 

(i) Modifications or adjustments to a 

job application process that enable a 

qualified applicant who is a special 

disabled veteran to be considered for the 

position such applicant desires;1

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72153 

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). 

2Contractors 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. 

(ii) Modifications or adjustments to 

the work environment, or to the manner 

or circumstances under which the 

position held or desired is customarily 

performed, that enable a qualified 

special disabled veteran to perform the 

essential functions of that position; or 

(iii) Modifications or adjustments that 

enable the contractor’s employee who is 

a special disabled veteran to enjoy equal 

benefits and privileges of employment 

as are enjoyed by the contractor’s other 

similarly situated employees who are 

not special disabled veterans. 

(2) Reasonable accommodation may 

include but is not limited to: 

(i) Making existing facilities used by 

employees readily accessible to and 

usable by special disabled veterans; and 

(ii) Job restructuring; part-time or 

modified work schedules; reassignment 

to a vacant position; acquisition or 

modifications of equipment or devices; 

appropriate adjustment or modifications 

of examinations, training materials, or 

policies; the provision of qualified 

readers or interpreters; and other similar 

accommodations for special disabled 

veterans. 

(3) To determine the appropriate 

reasonable accommodation it may be 

necessary for the contractor to initiate 

an informal, interactive process with the 

qualified special disabled veteran in 

need of the accommodation.2 This 

process should identify the precise 

limitations resulting from the disability 

and potential reasonable 

accommodations that could overcome 

those limitations. (Appendix A of this 

part provides guidance on a contractor’s 

duty to provide reasonable 

accommodation.) 

(u) Undue hardship—(1) In general. 

Undue hardship means, with respect to 

the provision of an accommodation, 

significant difficulty or expense 

incurred by the contractor, when 

considered in light of the factors set 

forth in paragraph (u)(2) of this section. 

(2) Factors to be considered. In 

determining whether an accommodation 

would impose an undue hardship on 

the contractor, factors to be considered 

include: 

(i) The nature and net cost of the 

accommodation needed, taking into 

consideration the availability of tax 

credits and deductions, and/or outside 

funding; 

(ii) The overall financial resources of 

the facility or facilities involved in the 

provision of the reasonable 

accommodation, the number of persons 

employed at such facility, and the effect 

on expenses and resources; 

(iii) The overall financial resources of 

the contractor, the overall size of the 

business of the contractor with respect 

to the number of its employees, and the 

number, type and location of its 

facilities; 

(iv) The type of operation or 

operations of the contractor, including 

the composition, structure and 

functions of the work force of such 

contractor, and the geographic 

separateness and administrative or fiscal 

relationship of the facility or facilities in 

question to the contractor; and 

(v) The impact of the accommodation 

upon the operation of the facility, 

including the impact on the ability of 

other employees to perform their duties 

and the impact on the facility’s ability 

to conduct business. 

(v) Qualification standards means the 

personal and professional attributes 

including the skill, experience, 

education, physical, medical, safety and 

other requirements established by the 

contractor as requirements which an 

individual must meet in order to be 

eligible for the position held or desired. 

(w) Direct threat means a significant 

risk of substantial harm to the health or 

safety of the individual or others that 

cannot be eliminated or reduced by 

reasonable accommodation. The 

determination that a special disabled 

veteran poses a direct threat shall be 

based on an individualized assessment 

of the individual’s present ability to 

perform safely the essential functions of 

the job. This assessment shall be based 

on a reasonable medical judgment that 

relies on the most current medical 

knowledge and/or on the best available 

objective evidence. In determining 

whether an individual would pose a 

direct threat, the factors to be 

considered include: 

(1) The duration of the risk; 

(2) The nature and severity of the 

potential harm; 

(3) The likelihood that the potential 

harm will occur; and 

(4) The imminence of the potential 

harm. 

§ 60–250.3 [Reserved] 

§ 60–250.4 Coverage and waivers. 

(a) General—(1) Contracts and 

subcontracts of $25,000 or more. 

Contracts and subcontracts of $25,000 or 

more, are covered by this part. No 

contracting agency or contractor shall 

procure supplies or services in less than 

usual quantities to avoid the 

applicability of the equal opportunity 

clause. 

(2) Contracts for indefinite quantities. 

With respect to indefinite delivery-type 

contracts (including, but not limited to, 

open end contracts, requirement-type 

contracts, Federal Supply Schedule 

contracts, ‘‘call-type’’ contracts, and 

purchase notice agreements), the equal 

opportunity clause shall be included 

unless the contracting agency has reason 

to believe that the amount to be ordered 

in any year under such contract will be 

less than $25,000. The applicability of 

the equal opportunity clause shall be 

determined at the time of award for the 

first year, and annually thereafter for 

succeeding years, if any. 

Notwithstanding the above, the equal 

opportunity clause shall be applied to 

such contract whenever the amount of 

a single order is $25,000 or more. Once 

the equal opportunity clause is 

determined to be applicable, the 

contract shall continue to be subject to 

such clause for its duration, regardless 

of the amounts ordered, or reasonably 

expected to be ordered in any year. 

(3) Employment activities within the 

United States. This part applies only to 

employment activities within the 

United States and not to employment 

activities abroad. The term 

‘‘employment activities within the 

United States’’ includes actual 

employment within the United States, 

and decisions of the contractor made 

within the United States pertaining to 

the contractor’s applicants and 

employees who are within the United 

States, regarding employment 

opportunities abroad (such as recruiting 

and hiring within the United States for 

employment abroad, or transfer of 

persons employed in the United States 

to contractor establishments abroad). 

(4) Contracts with state or local 

governments. The requirements of the 

equal opportunity clause in any contract 

or subcontract with a state or local 

government (or any agency, 

instrumentality or subdivision thereof) 

shall not be applicable to any agency, 

instrumentality or subdivision of such 

government which does not participate 

in work on or under the contract or 

subcontract. 

(b) Waivers—(1) Specific contracts 

and classes of contracts. The Deputy 

Assistant Secretary may waive the 

application to any contract of the equal 

opportunity clause in whole or part 

when he or she deems that special 

circumstances in the national interest so 

72154 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

require. The Deputy Assistant Secretary 

may also grant such waivers to groups 

or categories of contracts: Where it is in 

the national interest; where it is found 

impracticable to act upon each request 

individually; and where such waiver 

will substantially contribute to 

convenience in administration of the 

Act. When a waiver has been granted for 

any class of contracts, the Deputy 

Assistant Secretary may withdraw the 

waiver for a specific contract or group 

of contracts to be awarded, when in his 

or her judgment such action is necessary 

or appropriate to achieve the purposes 

of the Act. The withdrawal shall not 

apply to contracts awarded prior to the 

withdrawal, except that in 

procurements entered into by formal 

advertising, or the various forms of 

restricted formal advertising, such 

withdrawal shall not apply unless the 

withdrawal is made more than 10 

calendar days before the date set for the 

opening of the bids. 

(2) National security. Any 

requirement set forth in the regulations 

of this part shall not apply to any 

contract whenever the head of the 

contracting agency determines that such 

contract is essential to the national 

security and that its award without 

complying with such requirements is 

necessary to the national security. Upon 

making such a determination, the head 

of the contracting agency will notify the 

Deputy Assistant Secretary in writing 

within 30 days. 

(3) Facilities not connected with 

contracts. The Deputy Assistant 

Secretary may waive the requirements 

of the equal opportunity clause with 

respect to any of a contractor’s facilities 

which he or she finds to be in all 

respects separate and distinct from 

activities of the contractor related to the 

performance of the contract, provided 

that he or she also finds that such a 

waiver will not interfere with or impede 

the effectuation of the Act. Such waivers 

shall be considered only upon the 

request of the contractor. 

§ 60–250.5 Equal opportunity clause. 

(a) Government contracts. Each 

contracting agency and each contractor 

shall include the following equal 

opportunity clause in each of its 

covered Government contracts or 

subcontracts (and modifications, 

renewals, or extensions thereof if not 

included in the original contract): 

Equal Opportunity for Special Disabled 

Veterans, Veterans of the Vietnam Era, 

Recently Separated Veterans, and Other 

Protected Veterans. 

1. The contractor will not discriminate 

against any employee or applicant for 

employment because he or she is a special 

disabled veteran, veteran of the Vietnam era, 

recently separated veteran, or other protected 

veteran in regard to any position for which 

the employee or applicant for employment is 

qualified. The contractor agrees to take 

affirmative action to employ, advance in 

employment and otherwise treat qualified 

individuals without discrimination based on 

their status as a special disabled veteran, 

veteran of the Vietnam era, recently 

separated veteran, or other protected veteran 

in all employment practices, including the 

following: 

i. Recruitment, advertising, and job 

application procedures; 

ii. Hiring, upgrading, promotion, award of 

tenure, demotion, transfer, layoff, 

termination, right of return from layoff and 

rehiring; 

iii. Rates of pay or any other form of 

compensation and changes in compensation; 

iv. Job assignments, job classifications, 

organizational structures, position 

descriptions, lines of progression, and 

seniority lists; 

v. Leaves of absence, sick leave, or any 

other leave; 

vi. Fringe benefits available by virtue of 

employment, whether or not administered by 

the contractor; 

vii. Selection and financial support for 

training, including apprenticeship, and onthe-job training under 38 U.S.C 3687, 

professional meetings, conferences, and other 

related activities, and selection for leaves of 

absence to pursue training; 

viii. Activities sponsored by the contractor 

including social or recreational programs; 

and 

ix. Any other term, condition, or privilege 

of employment. 

2. The contractor agrees to immediately list 

all employment openings which exist at the 

time of the execution of this contract and 

those which occur during the performance of 

this contract, including those not generated 

by this contract and including those 

occurring at an establishment of the 

contractor other than the one wherein the 

contract is being performed, but excluding 

those of independently operated corporate 

affiliates, at an appropriate local employment 

service office of the state employment 

security agency wherein the opening occurs. 

Listing employment openings with the U.S. 

Department of Labor’s America’s Job Bank 

shall satisfy the requirement to list jobs with 

the local employment service office. 

3. Listing of employment openings with 

the local employment service office pursuant 

to this clause shall be made at least 

concurrently with the use of any other 

recruitment source or effort and shall involve 

the normal obligations which attach to the 

placing of a bona fide job order, including 

the acceptance of referrals of veterans and 

nonveterans. The listing of employment 

openings does not require the hiring of any 

particular job applicants or from any 

particular group of job applicants, and 

nothing herein is intended to relieve the 

contractor from any requirements in 

Executive orders or regulations regarding 

nondiscrimination in employment. 

4. Whenever the contractor becomes 

contractually bound to the listing provisions 

in paragraphs 2 and 3 of this clause, it shall 

advise the state employment security agency 

in each state where it has establishments of 

the name and location of each hiring location 

in the state: Provided, That this requirement 

shall not apply to state and local 

governmental contractors. As long as the 

contractor is contractually bound to these 

provisions and has so advised the state 

agency, there is no need to advise the state 

agency of subsequent contracts. The 

contractor may advise the state agency when 

it is no longer bound by this contract clause. 

5. The provisions of paragraphs 2 and 3 of 

this clause do not apply to the listing of 

employment openings which occur and are 

filled outside of the 50 states, the District of 

Columbia, the Commonwealth of Puerto 

Rico, Guam, and the Virgin Islands. 

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

openings includes all positions except 

executive and top management, those 

positions that will be filled from within the 

contractor’s organization, and positions 

lasting three days or less. This term includes 

full-time employment, temporary 

employment of more than three days’

duration, and part-time employment. 

ii. Executive and top management means 

any employee: (a) Whose primary duty 

consists of the management of the enterprise 

in which he or she is employed or of a 

customarily recognized department or 

subdivision thereof; and (b) who customarily 

and regularly directs the work of two or more 

other employees therein; and (c) who has the 

authority to hire or fire other employees or 

whose suggestions and recommendations as 

to the hiring or firing and as to the 

advancement and promotion or any other 

change of status of other employees will be 

given particular weight; and (d) who 

customarily and regularly exercises 

discretionary powers; and (e) who does not 

devote more than 20 percent, or, in the case 

of an employee of a retail or service 

establishment who does not devote as much 

as 40 percent, of his or her hours of work in 

the work week to activities which are not 

directly and closely related to the 

performance of the work described in (a) 

through (d) of this paragraph 6. ii.; Provided, 

that (e) of this paragraph 6.ii. shall not apply 

in the case of an employee who is in sole 

charge of an independent establishment or a 

physically separated branch establishment, 

or who owns at least a 20-percent interest in 

the enterprise in which he or she is 

employed. 

iii. Positions that will be filled from within 

the contractor’s organization means 

employment openings for which no 

consideration will be given to persons 

outside the contractor’s organization 

(including any affiliates, subsidiaries, and 

parent companies) and includes any 

openings which the contractor proposes to 

fill from regularly established ‘‘recall’’ lists. 

The exception does not apply to a particular 

opening once an employer decides to 

consider applicants outside of his or her own 

organization. 

7. The contractor agrees to comply with the 

rules, regulations, and relevant orders of the 

Secretary of Labor issued pursuant to the Act. 

8. In the event of the contractor’s 

noncompliance with the requirements of this 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72155 

clause, actions for noncompliance may be 

taken in accordance with the rules, 

regulations, and relevant orders of the 

Secretary of Labor issued pursuant to the Act. 

9. The contractor agrees to post in 

conspicuous places, available to employees 

and applicants for employment, notices in a 

form to be prescribed by the Deputy Assistant 

Secretary for Federal Contract Compliance, 

provided by or through the contracting 

officer. Such notices shall state the rights of 

applicants and employees as well as the 

contractor’s obligation under the law to take 

affirmative action to employ and advance in 

employment qualified employees and 

applicants who are special disabled veterans, 

veterans of the Vietnam era, recently 

separated veterans, or other protected 

veterans. The contractor must ensure that 

applicants or employees who are special 

disabled veterans are informed of the 

contents of the notice (e.g., the contractor 

may have the notice read to a visually 

disabled individual, or may lower the posted 

notice so that it might be read by a person 

in a wheelchair). 

10. The contractor will notify each labor 

organization or representative of workers 

with which it has a collective bargaining 

agreement or other contract understanding, 

that the contractor is bound by the terms of 

the Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, and is 

committed to take affirmative action to 

employ and advance in employment 

qualified special disabled veterans, veterans 

of the Vietnam era, recently separated 

veterans, and other protected veterans. 

11. The contractor will include the 

provisions of this clause in every subcontract 

or purchase order of $25,000 or more, unless 

exempted by the rules, regulations, or orders 

of the Secretary issued pursuant to the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, so that 

such provisions will be binding upon each 

subcontractor or vendor. The contractor will 

take such action with respect to any 

subcontract or purchase order as the Deputy 

Assistant Secretary for Federal Contract 

Compliance may direct to enforce such 

provisions, including action for 

noncompliance. 

[End of Clause] 

(b) Subcontracts. Each contractor 

shall include the equal opportunity 

clause in each of its subcontracts subject 

to this part. 

(c) Adaption of language. Such 

necessary changes in language may be 

made to the equal opportunity clause as 

shall be appropriate to identify properly 

the parties and their undertakings. 

(d) Inclusion of the equal opportunity 

clause in the contract. It is not necessary 

that the equal opportunity clause be 

quoted verbatim in the contract. The 

clause may be made a part of the 

contract by citation to 41 CFR 60–

250.5(a). 

(e) Incorporation by operation of the 

Act. By operation of the Act, the equal 

opportunity clause shall be considered 

to be a part of every contract and 

subcontract required by the Act and the 

regulations in this part to include such 

a clause, whether or not it is physically 

incorporated in such contract and 

whether or not there is a written 

contract between the agency and the 

contractor. 

(f) Duties of contracting agencies. 

Each contracting agency shall cooperate 

with the Deputy Assistant Secretary and 

the Secretary in the performance of their 

responsibilities under the Act. Such 

cooperation shall include insuring that 

the equal opportunity clause is included 

in all covered Government contracts and 

that contractors are fully informed of 

their obligations under the Act and this 

part, providing the Deputy Assistant 

Secretary with any information which 

comes to the agency’s attention that a 

contractor is not in compliance with the 

Act or this part, responding to requests 

for information from the Deputy 

Assistant Secretary, and taking such 

actions for noncompliance as are set 

forth in § 60–250.66 as may be ordered 

by the Secretary or the Deputy Assistant 

Secretary. 

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 special disabled 

veteran, veteran of the Vietnam era, 

recently separated veteran, or other 

protected veteran. 

(b) Limiting, segregating and 

classifying. Unless otherwise permitted 

by this part, it is unlawful for the 

contractor to limit, segregate, or classify 

a job applicant or employee in a way 

that adversely affects his or her 

employment opportunities or status on 

the basis of that individual’s status as a 

special disabled veteran, veteran of the 

Vietnam era, recently separated veteran, 

or other protected veteran. For example, 

the contractor may not segregate 

qualified special disabled veterans, 

veterans of the Vietnam era, recently 

separated veterans, or other protected 

veterans into separate work areas or into 

separate lines of advancement. 

(c) Contractual or other arrangements. 

(1) In general. It is unlawful for the 

contractor to participate in a contractual 

or other arrangement or relationship 

that has the effect of subjecting the 

contractor’s own qualified applicant or 

employee who is a special disabled 

veteran, veteran of the Vietnam era, 

recently separated veteran, or other 

protected veteran to the discrimination 

prohibited by this part. 

(2) Contractual or other arrangement 

defined. The phrase ‘‘contractual or 

other arrangement or relationship’’

includes, but is not limited to, a 

relationship with: an employment or 

referral agency; a labor organization, 

including a collective bargaining 

agreement; an organization providing 

fringe benefits to an employee of the 

contractor; or an organization providing 

training and apprenticeship programs. 

(3) Application. This paragraph (c) 

applies to the contractor, with respect to 

its own applicants or employees, 

whether the contractor offered the 

contract or initiated the relationship, or 

whether the contractor accepted the 

contract or acceded to the relationship. 

The contractor is not liable for the 

actions of the other party or parties to 

the contract which only affect that other 

party’s employees or applicants. 

(d) Standards, criteria or methods of 

administration. It is unlawful for the 

contractor to use standards, criteria, or 

methods of administration, that are not 

job-related and consistent with business 

necessity, and that: 

(1) Have the effect of discriminating 

on the basis of status as a special 

disabled veteran, veteran of the Vietnam 

72156 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

era, recently separated veteran, or other 

protected veteran; or 

(2) Perpetuate the discrimination of 

others who are subject to common 

administrative control. 

(e) Relationship or association with a 

special disabled veteran, veteran of the 

Vietnam era, recently separated veteran, 

or other protected veteran. It is unlawful 

for the contractor to exclude or deny 

equal jobs or benefits to, or otherwise 

discriminate against, a qualified 

individual because of the known special 

disabled veteran, Vietnam era veteran, 

recently separated veteran, or other 

protected veteran status of an individual 

with whom the qualified individual is 

known to have a family, business, social 

or other relationship or association. 

(f) Not making reasonable 

accommodation. (1) It is unlawful for 

the contractor to fail to make reasonable 

accommodation to the known physical 

or mental limitations of an otherwise 

qualified applicant or employee who is 

a special disabled veteran, unless such 

contractor can demonstrate that the 

accommodation would impose an 

undue hardship on the operation of its 

business. 

(2) It is unlawful for the contractor to 

deny employment opportunities to an 

otherwise qualified job applicant or 

employee who is a special disabled 

veteran based on the need of such 

contractor to make reasonable 

accommodation to such an individual’s 

physical or mental impairments. 

(3) A qualified special disabled 

veteran is not required to accept an 

accommodation, aid, service, 

opportunity or benefit which such 

qualified individual chooses not to 

accept. However, if such individual 

rejects a reasonable accommodation, 

aid, service, opportunity or benefit that 

is necessary to enable the individual to 

perform the essential functions of the 

position held or desired, and cannot, as 

a result of that rejection, perform the 

essential functions of the position, the 

individual will not be considered a 

qualified special disabled veteran. 

(g) Qualification standards, tests and 

other selection criteria 

(1) In general. It is unlawful for the 

contractor to use qualification 

standards, employment tests or other 

selection criteria that screen out or tend 

to screen out individuals on the basis of 

their status as special disabled veterans, 

veterans of the Vietnam era, recently 

separated veterans, or other protected 

veterans, unless the standard, test or 

other selection criterion, as used by the 

contractor, is shown to be job-related for 

the position in question and is 

consistent with business necessity. 

Selection criteria that concern an 

essential function may not be used to 

exclude a special disabled veteran if 

that individual could satisfy the criteria 

with provision of a reasonable 

accommodation. Selection criteria that 

exclude or tend to exclude individuals 

on the basis of their status as special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans but 

concern only marginal functions of the 

job would not be consistent with 

business necessity. The contractor may 

not refuse to hire an applicant who is a 

special disabled veteran because the 

applicant’s disability prevents him or 

her from performing marginal functions. 

When considering a special disabled 

veteran, veteran of the Vietnam era, 

recently separated veteran, or other 

protected veteran for an employment 

opportunity, the contractor may not rely 

on portions of such veteran’s military 

record, including his or her discharge 

papers, which are not relevant to the 

qualification requirements of the 

opportunity in issue. 

(2) The Uniform Guidelines on 

Employee Selection Procedures, 41 CFR 

part 60–3, do not apply to 38 U.S.C. 

4212 and are similarly inapplicable to 

this part. 

(h) Administration of tests. It is 

unlawful for the contractor to fail to 

select and administer tests concerning 

employment in the most effective 

manner to ensure that, when a test is 

administered to a job applicant or 

employee who is a special disabled 

veteran with a disability that impairs 

sensory, manual, or speaking skills, the 

test results accurately reflect the skills, 

aptitude, or whatever other factor of the 

applicant or employee that the test 

purports to measure, rather than 

reflecting the impaired sensory, manual, 

or speaking skills of such employee or 

applicant, except where such skills are 

the factors that the test purports to 

measure. 

(i) Compensation. In offering 

employment or promotions to special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans, it 

is unlawful for the contractor to reduce 

the amount of compensation offered 

because of any income based upon a 

disability-related and/or militaryservice-related pension or other 

disability-related and/or militaryservice-related benefit the applicant or 

employee receives from another source. 

§ 60–250.22 Direct threat defense. 

The contractor may use as a 

qualification standard the requirement 

that an individual be able to perform the 

essential functions of the position held 

or desired without posing a direct threat 

to the health or safety of the individual 

or others in the workplace. (See § 60–

250.2(w) defining direct threat.) 

§ 60–250.23 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 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72157 

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 

Federal agencies regarding alcohol and 

the illegal use of drugs; and 

(6) May require that employees 

employed in sensitive positions comply 

with the regulations (if any) of the 

Departments of Defense and 

Transportation, and of the Nuclear 

Regulatory Commission, and other 

Federal agencies that apply to 

employment in sensitive positions 

subject to such regulations. 

(b) Drug testing. (1) General policy. 

For purposes of this part, a test to 

determine the illegal use of drugs is not 

considered a medical examination. 

Thus, the administration of such drug 

tests by the contractor to its job 

applicants or employees is not a 

violation of § 60–250.23. Nothing in this 

part shall be construed to encourage, 

prohibit, or authorize the contractor to 

conduct drug tests of job applicants or 

employees to determine the illegal use 

of drugs or to make employment 

decisions based on such test results. 

(2) Transportation employees. 

Nothing in this part shall be construed 

to encourage, prohibit, or authorize the 

otherwise lawful exercise by contractors 

subject to the jurisdiction of the 

Department of Transportation of 

authority to test employees in, and 

applicants for, positions involving 

safety-sensitive duties for the illegal use 

of drugs or for on-duty impairment by 

alcohol; and remove from safetysensitive positions persons who test 

positive for illegal use of drugs or onduty impairment by alcohol pursuant to 

paragraph (b)(1) of this section. 

(3) Any information regarding the 

medical condition or history of any 

employee or applicant obtained from a 

test to determine the illegal use of drugs, 

except information regarding the illegal 

use of drugs, is subject to the 

requirements of §§ 60–250.23(b)(5) and 

(c). 

§ 60–250.25 Health insurance, life 

insurance and other benefit plans. 

(a) An insurer, hospital, or medical 

service company, health maintenance 

organization, or any agent or entity that 

administers benefit plans, or similar 

organizations may underwrite risks, 

classify risks, or administer such risks 

that are based on or not inconsistent 

with state law. 

(b) The contractor may establish, 

sponsor, observe or administer the terms 

of a bona fide benefit plan that are based 

on underwriting risks, classifying risks, 

or administering such risks that are 

based on or not inconsistent with state 

law. 

(c) The contractor may establish, 

sponsor, observe, or administer the 

terms of a bona fide benefit plan that is 

not subject to state laws that regulate 

insurance. 

(d) The contractor may not deny a 

qualified special disabled veteran equal 

access to insurance or subject a 

qualified special disabled veteran to 

different terms or conditions of 

insurance based on disability alone, if 

the disability does not pose increased 

risks. 

(e) The activities described in 

paragraphs (a), (b) and (c) of this section 

are permitted unless these activities are 

used as a subterfuge to evade the 

purposes of this part. 

Subpart C—Affirmative Action 

Program 

§ 60–250.40 Applicability of the affirmative 

action program requirement. 

(a) The requirements of this subpart 

apply to every Government contractor 

that has 50 or more employees and a 

contract of $50,000 or more. 

(b) Contractors described in paragraph 

(a) of this section shall, within 120 days 

of the commencement of a contract, 

prepare and maintain an affirmative 

action program at each establishment. 

The affirmative action program shall set 

forth the contractor’s policies and 

procedures in accordance with this part. 

This program may be integrated into or 

kept separate from other affirmative 

action programs. 

(c) The affirmative action program 

shall be reviewed and updated 

annually. 

(d) The contractor shall submit the 

affirmative action program within 30 

days of a request from OFCCP, unless 

the request provides for a different time. 

The contractor also shall make the 

affirmative action program promptly 

available on-site upon OFCCP’s request. 

§ 60–250.41 Availability of affirmative 

action program. 

The full affirmative action program 

shall be available to any employee or 

applicant for employment for inspection 

upon request. The location and hours 

during which the program may be 

obtained shall be posted at each 

establishment. 

§ 60–250.42 Invitation to self-identify. 

(a) Special disabled veterans. The 

contractor shall invite applicants to 

inform the contractor whether the 

applicant believes that he or she is a 

special disabled veteran who may be 

covered by the Act and wishes to benefit 

under the affirmative action program. 

Such invitation shall be extended after 

making an offer of employment to a job 

applicant and before the applicant 

begins his or her employment duties, 

except that the contractor may invite 

72158 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

special disabled veterans to self-identify 

prior to making a job offer when: 

(1) The invitation is made when the 

contractor actually is undertaking 

affirmative action for special disabled 

veterans at the pre-offer stage; or 

(2) The invitation is made pursuant to 

a Federal, State or local law requiring 

affirmative action for special disabled 

veterans. 

(b) Veterans of the Vietnam era, 

recently separated veterans and other 

protected veterans. The contractor shall 

invite applicants to inform the 

contractor whether the applicant 

believes that he or she is a veteran of the 

Vietnam era, recently separated veteran 

or other protected veteran who may be 

covered by the Act and wishes to benefit 

under the affirmative action program. 

Such invitation may be made at any 

time before the applicant begins his or 

her employment duties. 

(c) The invitations referenced in 

paragraphs (a) and (b) of this section 

shall state that a request to benefit under 

the affirmative action program may be 

made immediately and/or at any time in 

the future. The invitations also shall 

summarize the relevant portions of the 

Act and the contractor’s affirmative 

action program. Furthermore, the 

invitations shall state that the 

information is being requested on a 

voluntary basis, that it will be kept 

confidential, that refusal to provide it 

will not subject the applicant to any 

adverse treatment, and that it will not be 

used in a manner inconsistent with the 

Act. (An acceptable form for such an 

invitation is set forth in Appendix B of 

this part. Because a contractor usually 

may not seek advice from a special 

disabled veteran regarding placement 

and accommodation until after a job 

offer has been extended, the invitation 

set forth in Appendix B of this part 

contains instructions regarding 

modifications to be made if it is used at 

the pre-offer stage.) 

(d) If an applicant so identifies 

himself or herself as a special disabled 

veteran, the contractor should also seek 

the advice of the applicant regarding 

proper placement and appropriate 

accommodation, after a job offer has 

been extended. The contractor also may 

make such inquiries to the extent they 

are consistent with the Americans with 

Disabilities Act of 1990 (ADA), 42 

U.S.C. 12101, (e.g., in the context of 

asking applicants to describe or 

demonstrate how they would perform 

the job). The contractor shall maintain 

a separate file in accordance with § 60–

250.23(d) on persons who have selfidentified as special disabled veterans. 

(e) The contractor shall keep all 

information on self identification 

confidential. The contractor shall 

provide the information to OFCCP upon 

request. This information may be used 

only in accordance with this part. 

(f) Nothing in this section shall relieve 

the contractor of its obligation to take 

affirmative action with respect to those 

applicants or employees who are known 

to the contractor to be special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, or other 

protected veterans. 

(g) Nothing in this section shall 

relieve the contractor from liability for 

discrimination under the Act. 

§ 60–250.43 Affirmative action policy. 

Under the affirmative action 

obligations imposed by the Act 

contractors shall not discriminate 

because of status as a special disabled 

veteran, veteran of the Vietnam era, 

recently separated veteran, or other 

protected veteran and shall take 

affirmative action to employ and 

advance in employment qualified 

special disabled veterans, veterans of 

the Vietnam era, recently separated 

veterans, and other protected veterans at 

all levels of employment, including the 

executive level. Such action shall apply 

to all employment activities set forth in 

§ 60–250.20. 

§ 60–250.44 Required contents of 

affirmative action programs. 

Acceptable affirmative action 

programs shall contain, but not 

necessarily be limited to, the following 

ingredients: 

(a) Policy statement. The contractor 

shall include an equal opportunity 

policy statement in its affirmative action 

program, and shall post the policy 

statement on company bulletin boards. 

The contractor must ensure that 

applicants and employees who are 

special disabled veterans are informed 

of the contents of the policy statement 

(for example, the contractor may have 

the statement read to a visually disabled 

individual, or may lower the posted 

notice so that it may be read by a person 

in a wheelchair). The policy statement 

should indicate the chief executive 

officer’s attitude on the subject matter, 

provide for an audit and reporting 

system (see paragraph (h) of this 

section) and assign overall 

responsibility for the implementation of 

affirmative action activities required 

under this part (see paragraph (i) of this 

section). Additionally, the policy should 

state, among other things, that the 

contractor will: Recruit, hire, train and 

promote persons in all job titles, and 

ensure that all other personnel actions 

are administered, without regard to 

special disabled veteran, Vietnam era 

veteran, recently separated veteran, or 

other protected veteran status; and 

ensure that all employment decisions 

are based only on valid job 

requirements. The policy shall state that 

employees and applicants shall not be 

subjected to harassment, intimidation, 

threats, coercion or discrimination 

because they have engaged in or may 

engage in any of the following activities: 

(1) Filing a complaint; 

(2) Assisting or participating in an 

investigation, compliance evaluation, 

hearing, or any other activity related to 

the administration of the affirmative 

action provisions of the Vietnam Era 

Veterans’ Readjustment Assistance Act 

of 1974, as amended (VEVRAA) or any 

other Federal, state or local law 

requiring equal opportunity for special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans; 

(3) Opposing any act or practice made 

unlawful by VEVRAA or its 

implementing regulations in this part or 

any other Federal, state or local law 

requiring equal opportunity for special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans; or 

(4) Exercising any other right 

protected by VEVRAA or its 

implementing regulations in this part. 

(b) Review of personnel processes. 

The contractor shall ensure that its 

personnel processes provide for careful, 

thorough, and systematic consideration 

of the job qualifications of applicants 

and employees who are known special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans for 

job vacancies filled either by hiring or 

promotion, and for all training 

opportunities offered or available. The 

contractor shall ensure that when a 

special disabled veteran, veteran of the 

Vietnam era, recently separated veteran, 

or other protected veteran is considered 

for employment opportunities, the 

contractor relies only on that portion of 

the individual’s military record, 

including his or her discharge papers, 

that is relevant to the requirements of 

the opportunity in issue. The contractor 

shall ensure that its personnel processes 

do not stereotype special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and other 

protected veterans in a manner which 

limits their access to all jobs for which 

they are qualified. The contractor shall 

periodically review such processes and 

make any necessary modifications to 

ensure that these obligations are carried 

out. A description of the review and any 

necessary modifications to personnel 

processes or development of new 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72159 

processes shall be included in any 

affirmative action programs required 

under this part. The contractor must 

design procedures that facilitate a 

review of the implementation of this 

requirement by the contractor and the 

Government. (Appendix C of this part is 

an example of an appropriate set of 

procedures. The procedures in 

Appendix C of this part are not required 

and contractors may develop other 

procedures appropriate to their 

circumstances.) 

(c) Physical and mental 

qualifications. (1) The contractor shall 

provide in its affirmative action 

program, and shall adhere to, a schedule 

for the periodic review of all physical 

and mental job qualification standards 

to ensure that, to the extent qualification 

standards tend to screen out qualified 

special disabled veterans, they are jobrelated for the position in question and 

are consistent with business necessity. 

(2) Whenever the contractor applies 

physical or mental qualification 

standards in the selection of applicants 

or employees for employment or other 

change in employment status such as 

promotion, demotion or training, to the 

extent that qualification standards tend 

to screen out qualified special disabled 

veterans, the standards shall be related 

to the specific job or jobs for which the 

individual is being considered and 

consistent with business necessity. The 

contractor shall have the burden to 

demonstrate that it has complied with 

the requirements of this paragraph 

(c)(2). 

(3) The contractor may use as a 

defense to an allegation of a violation of 

paragraph (c)(2) of this section that an 

individual poses a direct threat to the 

health or safety of the individual or 

others in the workplace. (See § 60–

250.2(w) defining direct threat.) 

(d) Reasonable accommodation to 

physical and mental limitations. As is 

provided in § 60–250.21(f), as a matter 

of nondiscrimination the contractor 

must make reasonable accommodation 

to the known physical or mental 

limitations of an otherwise qualified 

special disabled veteran unless it can 

demonstrate that the accommodation 

would impose an undue hardship on 

the operation of its business. As a matter 

of affirmative action, if an employee 

who is known to be a special disabled 

veteran is having significant difficulty 

performing his or her job and it is 

reasonable to conclude that the 

performance problem may be related to 

the known disability, the contractor 

shall confidentially notify the employee 

of the performance problem and inquire 

whether the problem is related to the 

employee’s disability; if the employee 

responds affirmatively, the contractor 

shall confidentially inquire whether the 

employee is in need of a reasonable 

accommodation. 

(e) Harassment. The contractor must 

develop and implement procedures to 

ensure that its employees are not 

harassed because of their status as a 

special disabled veteran, veteran of the 

Vietnam era, recently separated veteran, 

or other protected veteran. 

(f) External dissemination of policy, 

outreach and positive recruitment. The 

contractor shall undertake appropriate 

outreach and positive recruitment 

activities such as those listed in 

paragraphs (f)(1) through (f)(8) of this 

section that are reasonably designed to 

effectively recruit qualified special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, and other protected veterans. 

It is not contemplated that the 

contractor will necessarily undertake all 

the activities listed in paragraphs (f)(1) 

through (f)(8) of this section or that its 

activities will be limited to those listed. 

The scope of the contractor’s efforts 

shall depend upon all the 

circumstances, including the 

contractor’s size and resources and the 

extent to which existing employment 

practices are adequate. 

(1) The contractor should enlist the 

assistance and support of the following 

persons and organizations in recruiting, 

and developing on-the-job training 

opportunities for, qualified special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, and other protected veterans, 

to fulfill its commitment to provide 

meaningful employment opportunities 

to such veterans: 

(i) The Local Veterans’ Employment 

Representative or his or her designee in 

the local employment service office 

nearest the contractor’s establishment; 

(ii) The Department of Veterans 

Affairs Regional Office nearest the 

contractor’s establishment; 

(iii) The veterans’ counselors and 

coordinators (‘‘Vet-Reps’’) on college 

campuses; 

(iv) The service officers of the 

national veterans’ groups active in the 

area of the contractor’s establishment; 

and 

(v) Local veterans’ groups and 

veterans’ service centers near the 

contractor’s establishment. 

(2) Formal briefing sessions should be 

held, preferably on company premises, 

with representatives from recruiting 

sources. Plant tours, clear and concise 

explanations of current and future job 

openings, position descriptions, worker 

specifications, explanations of the 

company’s selection process, and 

recruiting literature should be an 

integral part of the briefing. Formal 

arrangements should be made for 

referral of applicants, follow up with 

sources, and feedback on disposition of 

applicants. 

(3) The contractor’s recruitment 

efforts at all educational institutions 

should incorporate special efforts to 

reach students who are special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, or other 

protected veterans. An effort should be 

made to participate in work-study 

programs with Department of Veterans 

Affairs rehabilitation facilities which 

specialize in training or educating 

disabled veterans. 

(4) The contractor should establish 

meaningful contacts with appropriate 

veterans’ service organizations which 

serve special disabled veterans, veterans 

of the Vietnam era, recently separated 

veterans, or other protected veterans for 

such purposes as advice, technical 

assistance, and referral of potential 

employees. Technical assistance from 

the resources described in this 

paragraph may consist of advice on 

proper placement, recruitment, training 

and accommodations contractors may 

undertake, but no such resource 

providing technical assistance shall 

have authority to approve or disapprove 

the acceptability of affirmative action 

programs. 

(5) Special disabled veterans, veterans 

of the Vietnam era, recently separated 

veterans, and other protected veterans 

should be made available for 

participation in career days, youth 

motivation programs, and related 

activities in their communities. 

(6) The contractor should send 

written notification of company policy 

to all subcontractors, vendors and 

suppliers, requesting appropriate action 

on their part. 

(7) The contractor should take 

positive steps to attract qualified special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, and other protected veterans 

not currently in the work force who 

have requisite skills and can be 

recruited through affirmative action 

measures. These persons may be located 

through the local chapters of 

organizations of and for Vietnam era 

veterans, veterans with disabilities, 

recently separated veterans, and other 

protected veterans. 

(8) The contractor, in making hiring 

decisions, should consider applicants 

who are known special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, or other 

protected veterans for all available 

positions for which they may be 

72160 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

qualified when the position(s) applied 

for is unavailable. 

(g) Internal dissemination of policy. 

(1) A strong outreach program will be 

ineffective without adequate internal 

support from supervisory and 

management personnel and other 

employees. In order to assure greater 

employee cooperation and participation 

in the contractor’s efforts, the contractor 

shall develop internal procedures such 

as those listed in paragraph (g)(2) of this 

section for communication of its 

obligation to engage in affirmative 

action efforts to employ and advance in 

employment qualified special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and other 

protected veterans. It is not 

contemplated that the contractor will 

necessarily undertake all the activities 

listed in paragraph (g)(2) of this section 

or that its activities will be limited to 

those listed. These procedures shall be 

designed to foster understanding, 

acceptance and support among the 

contractor’s executive, management, 

supervisory and other employees and to 

encourage such persons to take the 

necessary actions to aid the contractor 

in meeting this obligation. The scope of 

the contractor’s efforts shall depend 

upon all the circumstances, including 

the contractor’s size and resources and 

the extent to which existing practices 

are adequate. 

(2) The contractor should implement 

and disseminate this policy internally as 

follows: 

(i) Include it in the contractor’s policy 

manual; 

(ii) Inform all employees and 

prospective employees of its 

commitment to engage in affirmative 

action to increase employment 

opportunities for qualified special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, and other protected veterans. 

The contractor should periodically 

schedule special meetings with all 

employees to discuss policy and explain 

individual employee responsibilities; 

(iii) Publicize it in the company 

newspaper, magazine, annual report and 

other media; 

(iv) Conduct special meetings with 

executive, management, and 

supervisory personnel to explain the 

intent of the policy and individual 

responsibility for effective 

implementation, making clear the chief 

executive officer’s attitude; 

(v) Discuss the policy thoroughly in 

both employee orientation and 

management training programs; 

(vi) Meet with union officials and/or 

employee representatives to inform 

them of the contractor’s policy, and 

request their cooperation; 

(vii) Include articles on 

accomplishments of special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and other 

protected veterans in company 

publications; and 

(viii) When employees are featured in 

employee handbooks or similar 

publications for employees, include 

special disabled veterans. 

(h) Audit and reporting system. (1) 

The contractor shall design and 

implement an audit and reporting 

system that will: 

(i) Measure the effectiveness of the 

contractor’s affirmative action program; 

(ii) Indicate any need for remedial 

action; 

(iii) Determine the degree to which 

the contractor’s objectives have been 

attained; 

(iv) Determine whether known special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, and other protected veterans 

have had the opportunity to participate 

in all company sponsored educational, 

training, recreational and social 

activities; and 

(v) Measure the contractor’s 

compliance with the affirmative action 

program’s specific obligations. 

(2) Where the affirmative action 

program is found to be deficient, the 

contractor shall undertake necessary 

action to bring the program into 

compliance. 

(i) Responsibility for implementation. 

An official of the contractor shall be 

assigned responsibility for 

implementation of the contractor’s 

affirmative action activities under this 

part. His or her identity should appear 

on all internal and external 

communications regarding the 

company’s affirmative action program. 

This official shall be given necessary top 

management support and staff to 

manage the implementation of this 

program. 

(j) Training. All personnel involved in 

the recruitment, screening, selection, 

promotion, disciplinary, and related 

processes shall be trained to ensure that 

the commitments in the contractor’s 

affirmative action program are 

implemented. 

Subpart D—General Enforcement and 

Complaint Procedures 

§ 60–250.60 Compliance evaluations. 

(a) OFCCP may conduct compliance 

evaluations to determine if the 

contractor is taking affirmative action to 

employ, advance in employment and 

otherwise treat qualified individuals 

without discrimination based on their 

status as a special disabled veteran, 

veteran of the Vietnam era, recently 

separated veteran, or other protected 

veteran in all employment practices. A 

compliance evaluation may consist of 

any one or any combination of the 

following investigative procedures: 

(1) Compliance review. A 

comprehensive analysis and evaluation 

of the hiring and employment practices 

of the contractor, the written affirmative 

action program, and the results of the 

affirmative action efforts undertaken by 

the contractor. A compliance review 

may proceed in three stages: 

(i) A desk audit of the written 

affirmative action program and 

supporting documentation to determine 

whether all elements required by the 

regulations in this part are included, 

whether the affirmative action program 

meets agency standards of 

reasonableness, and whether the 

affirmative action program and 

supporting documentation satisfy 

agency standards of acceptability. The 

desk audit is conducted at OFCCP 

offices; 

(ii) An on-site review, conducted at 

the contractor’s establishment to 

investigate unresolved problem areas 

identified in the affirmative action 

program and supporting documentation 

during the desk audit, to verify that the 

contractor has implemented the 

affirmative action program and has 

complied with those regulatory 

obligations not required to be included 

in the affirmative action program, and to 

examine potential instances or issues of 

discrimination. An on-site review 

normally will involve an examination of 

the contractor’s personnel and 

employment policies, inspection and 

copying of documents related to 

employment actions, and interviews 

with employees, supervisors, managers, 

hiring officials; and 

(iii) Where necessary, an off-site 

analysis of information supplied by the 

contractor or otherwise gathered during 

or pursuant to the on-site review; 

(2) Off-site review of records. An 

analysis and evaluation of the 

affirmative action program (or any part 

thereof) and supporting documentation, 

and other documents related to the 

contractor’s personnel policies and 

employment actions that may be 

relevant to a determination of whether 

the contractor has complied with the 

requirements of the Executive Order and 

regulations; 

(3) Compliance check. A 

determination of whether the contractor 

has maintained records consistent with 

§ 60–250.80; at the contractor’s option 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72161 

the documents may be provided either 

on-site or off-site; or 

(4) Focused review. An on-site review 

restricted to one or more components of 

the contractor’s organization or one or 

more aspects of the contractor’s 

employment practices. 

(b) Where deficiencies are found to 

exist, reasonable efforts shall be made to 

secure compliance through conciliation 

and persuasion pursuant to § 60–250.62. 

(c) VETS–100 Report. During a 

compliance evaluation, OFCCP may 

verify whether the contractor has 

complied with its obligation, pursuant 

to 41 CFR part 61–250, to file its annual 

Veterans’ Employment Report (VETS–

100 Report) with the Veterans’

Employment and Training Service 

(VETS). If the contractor has not filed its 

report, OFCCP will request a copy from 

the contractor. If the contractor fails to 

provide a copy of the report to OFCCP, 

OFCCP will notify VETS. 

§ 60–250.61 Complaint procedures. 

(a) Place and time of filing. Any 

applicant for employment with a 

contractor or any employee of a 

contractor may, personally, or by an 

authorized representative, file a written 

complaint alleging a violation of the Act 

or the regulations in this part. The 

complaint may allege individual or 

class-wide violation(s). Such complaint 

must be filed within 300 days of the 

date of the alleged violation, unless the 

time for filing is extended by OFCCP for 

good cause shown. Complaints may be 

submitted to the OFCCP, 200 

Constitution Avenue, NW., Washington, 

DC 20210, or to any OFCCP regional, 

district, or area office. Complaints may 

also be submitted to the Veterans’

Employment and Training Service of the 

Department of Labor directly, or through 

the Local Veterans’ Employment 

Representative (LVER) or his or her 

designee at the local employment 

service office. Such parties will assist 

veterans in preparing complaints, 

promptly refer such complaints to 

OFCCP, and maintain a record of all 

complaints which they receive and 

forward. OFCCP shall inform the party 

forwarding the complaint of the 

progress and results of its complaint 

investigation. The state employment 

security agency shall cooperate with the 

Deputy Assistant Secretary in the 

investigation of any complaint. 

(b) Contents of complaints. (1) In 

general. A complaint must be signed by 

the complainant or his or her authorized 

representative and must contain the 

following information: 

(i) Name and address (including 

telephone number) of the complainant; 

(ii) Name and address of the 

contractor who committed the alleged 

violation; 

(iii) Documentation showing that the 

individual is a special disabled veteran, 

veteran of the Vietnam era, recently 

separated veteran, or other protected 

veteran. Such documentation must 

include a copy of the veteran’s form 

DD–214, and, where applicable, a copy 

of the veteran’s Benefits Award Letter, 

or similar Department of Veterans 

Affairs certification, updated within one 

year prior to the date the complaint is 

filed, indicating the veteran’s level (by 

percentage) of disability, and whether 

the veteran has been determined by the 

Department of Veterans Affairs to have 

a serious employment handicap under 

38 U.S.C. 3106; 

(iv) A description of the act or acts 

considered to be a violation, including 

the pertinent dates (in the case of an 

alleged continuing violation, the earliest 

and most recent date that the alleged 

violation occurred should be stated); 

and 

(v) Other pertinent information 

available which will assist in the 

investigation and resolution of the 

complaint, including the name of any 

known Federal agency with which the 

employer has contracted. 

(2) Third party complaints. A 

complaint filed by an authorized 

representative need not identify by 

name the person on whose behalf it is 

filed. The person filing the complaint, 

however, shall provide OFCCP with the 

name, address and telephone number of 

the person on whose behalf it is made, 

and the other information specified in 

paragraph (b)(1) of this section. OFCCP 

shall verify the authorization of such a 

complaint by the person on whose 

behalf the complaint is made. Any such 

person may request that OFCCP keep 

his or her identity confidential, and 

OFCCP will protect the individual’s 

confidentiality wherever that is possible 

given the facts and circumstances in the 

complaint. 

(c) Incomplete information. Where a 

complaint contains incomplete 

information, OFCCP shall seek the 

needed information from the 

complainant. If the information is not 

furnished to OFCCP within 60 days of 

the date of such request, the case may 

be closed. 

(d) Investigations. The Department of 

Labor shall institute a prompt 

investigation of each complaint. 

(e) Resolution of matters. (1) If the 

complaint investigation finds no 

violation of the Act or this part, or if the 

Deputy Assistant Secretary decides not 

to refer the matter to the Solicitor of 

Labor for enforcement proceedings 

against the contractor pursuant to § 60–

250.65(a)(1), the complainant and 

contractor shall be so notified. The 

Deputy Assistant Secretary, on his or 

her own initiative, may reconsider his 

or her determination or the 

determination of any of his or her 

designated officers who have authority 

to issue Notifications of Results of 

Investigation. 

(2) The Deputy Assistant Secretary 

will review all determinations of no 

violation that involve complaints that 

are not also cognizable under Title I of 

the Americans with Disabilities Act. 

(3) In cases where the Deputy 

Assistant Secretary decides to 

reconsider the determination of a 

Notification of Results of Investigation, 

the Deputy Assistant Secretary shall 

provide prompt notification of his or her 

intent to reconsider, which is effective 

upon issuance, and his or her final 

determination after reconsideration, to 

the person claiming to be aggrieved, the 

person making the complaint on behalf 

of such person, if any, and the 

contractor. 

(4) If the investigation finds a 

violation of the Act or this part, OFCCP 

shall invite the contractor to participate 

in conciliation discussions pursuant to 

§ 60–250.62. 

§ 60–250.62 Conciliation agreements. 

If a compliance evaluation, complaint 

investigation or other review by OFCCP 

finds a material violation of the Act or 

this part, and if the contractor is willing 

to correct the violations and/or 

deficiencies, and if OFCCP determines 

that settlement on that basis (rather than 

referral for consideration of formal 

enforcement) is appropriate, a written 

conciliation agreement shall be 

required. The agreement shall provide 

for such remedial action as may be 

necessary to correct the violations and/ 

or deficiencies noted, including, where 

appropriate (but not necessarily limited 

to) such make whole remedies as back 

pay and retroactive seniority. The 

agreement shall also specify the time 

period for completion of the remedial 

action; the period shall be no longer 

than the minimum period necessary to 

complete the action. 

§ 60–250.63 Violation of conciliation 

agreements. 

(a) When OFCCP believes that a 

conciliation agreement has been 

violated, the following procedures are 

applicable: 

(1) A written notice shall be sent to 

the contractor setting forth the violation 

alleged and summarizing the supporting 

evidence. The contractor shall have 15 

days from receipt of the notice to 

72162 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

respond, except in those cases in which 

OFCCP asserts that such a delay would 

result in irreparable injury to the 

employment rights of affected 

employees or applicants. 

(2) During the 15-day period the 

contractor may demonstrate in writing 

that it has not violated its commitments. 

(b) In those cases in which OFCCP 

asserts that a delay would result in 

irreparable injury to the employment 

rights of affected employees or 

applicants, enforcement proceedings 

may be initiated immediately without 

proceeding through any other 

requirement contained in this chapter. 

(c) In any proceedings involving an 

alleged violation of a conciliation 

agreement OFCCP may seek 

enforcement of the agreement itself and 

shall not be required to present proof of 

the underlying violations resolved by 

the agreement. 

§ 60–250.64 Show cause notices. 

When the Deputy Assistant Secretary 

has reasonable cause to believe that the 

contractor has violated the Act or this 

part, he or she may issue a notice 

requiring the contractor to show cause, 

within 30 days, why monitoring, 

enforcement proceedings or other 

appropriate action to ensure compliance 

should not be instituted. The issuance 

of such a notice is not a prerequisite to 

instituting enforcement proceedings (see 

§ 60–250.65). 

§ 60–250.65 Enforcement proceedings. 

(a) General. (1) If a compliance 

evaluation, complaint investigation or 

other review by OFCCP finds a violation 

of the Act or this part, and the violation 

has not been corrected in accordance 

with the conciliation procedures in this 

part, or OFCCP determines that referral 

for consideration of formal enforcement 

(rather than settlement) is appropriate, 

OFCCP may refer the matter to the 

Solicitor of Labor with a 

recommendation for the institution of 

enforcement proceedings to enjoin the 

violations, to seek appropriate relief, 

and to impose appropriate sanctions, or 

any of the above in this sentence. 

OFCCP may seek back pay and other 

make whole relief for aggrieved 

individuals identified during a 

complaint investigation or compliance 

evaluation. Such individuals need not 

have filed a complaint as a prerequisite 

to OFCCP seeking such relief on their 

behalf. Interest on back pay shall be 

calculated from the date of the loss and 

compounded quarterly at the percentage 

rate established by the Internal Revenue 

Service for the underpayment of taxes. 

(2) In addition to the administrative 

proceedings set forth in this section, the 

Deputy Assistant Secretary may, within 

the limitations of applicable law, seek 

appropriate judicial action to enforce 

the contractual provisions set forth in 

§ 60–250.5, including appropriate 

injunctive relief. 

(b) Hearing practice and procedure. 

(1) In administrative enforcement 

proceedings the contractor shall be 

provided an opportunity for a formal 

hearing. All hearings conducted under 

the Act and this part shall be governed 

by the Rules of Practice for 

Administrative Proceedings to Enforce 

Equal Opportunity Under Executive 

Order 11246 contained in 41 CFR part 

60–30 and the Rules of Evidence set out 

in the Rules of Practice and Procedure 

for Administrative Hearings Before the 

Office of Administrative Law Judges 

contained in 29 CFR part 18, subpart B: 

Provided, That a final administrative 

order shall be issued within one year 

from the date of the issuance of the 

recommended findings, conclusions and 

decision of the Administrative Law 

Judge, or the submission of exceptions 

and responses to exceptions to such 

decision (if any), whichever is later. 

(2) Complaints may be filed by the 

Solicitor, the Associate Solicitor for 

Civil Rights, Regional Solicitors and 

Associate Regional Solicitors. 

(3) For the purposes of hearings 

pursuant to this part, references in 41 

CFR part 60–30 to ‘‘Executive Order 

11246’’ shall mean the Vietnam Era 

Veterans’’ Readjustment Assistance Act 

of 1974, as amended (38 U.S.C. 4212 

(2001)); to ‘‘equal opportunity clause’’

shall mean the equal opportunity clause 

published at § 60–250.5; and to 

‘‘regulations’’ shall mean the regulations 

contained in this part. 

§ 60–250.66 Sanctions and penalties. 

(a) Withholding progress payments. 

With the prior approval of the Deputy 

Assistant Secretary, so much of the 

accrued payment due on the contract or 

any other contract between the 

Government contractor and the Federal 

Government may be withheld as 

necessary to correct any violations of 

the provisions of the Act or this part. 

(b) Termination. A contract may be 

canceled or terminated, in whole or in 

part, for failure to comply with the 

provisions of the Act or this part. 

(c) Debarment. A contractor may be 

debarred from receiving future contracts 

for failure to comply with the provisions 

of the Act or this part subject to 

reinstatement pursuant to § 60–250.68. 

Debarment may be imposed for an 

indefinite period, or may be imposed for 

a fixed period of not less than six 

months but no more than three years. 

(d) Hearing opportunity. An 

opportunity for a formal hearing shall be 

afforded to a contractor before the 

imposition of any sanction or penalty. 

§ 60–250.67 Notification of agencies. 

The Deputy Assistant Secretary shall 

ensure that the heads of all agencies are 

notified of any debarments taken against 

any contractor. 

§ 60–250.68 Reinstatement of ineligible 

contractors. 

(a) Application for reinstatement. A 

contractor debarred from further 

contracts for an indefinite period under 

the Act may request reinstatement in a 

letter filed with the Deputy Assistant 

Secretary at any time after the effective 

date of the debarment; a contractor 

debarred for a fixed period may make 

such a request following the expiration 

of six months from the effective date of 

the debarment. In connection with the 

reinstatement proceedings, all debarred 

contractors shall be required to show 

that they have established and will carry 

out employment policies and practices 

in compliance with the Act and this 

part. Additionally, in determining 

whether reinstatement is appropriate for 

a contractor debarred for a fixed period, 

the Deputy Assistant Secretary also 

shall consider, among other factors, the 

severity of the violation which resulted 

in the debarment, the contractor’s 

attitude towards compliance, the 

contractor’s past compliance history, 

and whether the contractor’s 

reinstatement would impede the 

effective enforcement of the Act or this 

part. Before reaching a decision, the 

Deputy Assistant Secretary may conduct 

a compliance evaluation of the 

contractor and may require the 

contractor to supply additional 

information regarding the request for 

reinstatement. The Deputy Assistant 

Secretary shall issue a written decision 

on the request. 

(b) Petition for review. Within 30 days 

of its receipt of a decision denying a 

request for reinstatement, the contractor 

may file a petition for review of the 

decision with the Secretary. The 

petition shall set forth the grounds for 

the contractor’s objections to the Deputy 

Assistant Secretary’s decision. The 

petition shall be served on the Deputy 

Assistant Secretary and the Associate 

Solicitor for Civil Rights and shall 

include the decision as an appendix. 

The Deputy Assistant Secretary may file 

a response within 14 days to the 

petition. The Secretary shall issue the 

final agency decision denying or 

granting the request for reinstatement. 

Before reaching a final decision, the 

Secretary may issue such additional 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72163 

orders respecting procedure as he or she 

finds appropriate in the circumstances, 

including an order referring the matter 

to the Office of Administrative Law 

Judges for an evidentiary hearing where 

there is a material factual dispute that 

cannot be resolved on the record before 

the Secretary. 

§ 60–250.69 Intimidation and interference. 

(a) The contractor shall not harass, 

intimidate, threaten, coerce, or 

discriminate against, any individual 

because the individual has engaged in 

or may engage in any of the following 

activities: 

(1) Filing a complaint; 

(2) Assisting or participating in any 

manner in an investigation, compliance 

evaluation, hearing, or any other activity 

related to the administration of the Act 

or any other Federal, state or local law 

requiring equal opportunity for special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans; 

(3) Opposing any act or practice made 

unlawful by the Act or this part or any 

other Federal, state or local law 

requiring equal opportunity for special 

disabled veterans, veterans of the 

Vietnam era, recently separated 

veterans, or other protected veterans, or 

(4) Exercising any other right 

protected by the Act or this part. 

(b) The contractor shall ensure that all 

persons under its control do not engage 

in such harassment, intimidation, 

threats, coercion or discrimination. The 

sanctions and penalties contained in 

this part may be exercised by the 

Deputy Assistant Secretary against any 

contractor who violates this obligation. 

§ 60–250.70 Disputed matters related to 

compliance with the Act. 

The procedures set forth in the 

regulations in this part govern all 

disputes relative to the contractor’s 

compliance with the Act and this part. 

Any disputes relating to issues other 

than compliance, including contract 

costs arising out of the contractor’s 

efforts to comply, shall be determined 

by the disputes clause of the contract. 

Subpart E—Ancillary Matters 

§ 60–250.80 Recordkeeping 

(a) General requirements. Any 

personnel or employment record made 

or kept by the contractor shall be 

preserved by the contractor for a period 

of two years from the date of the making 

of the record or the personnel action 

involved, whichever occurs later. 

However, if the contractor has fewer 

than 150 employees or does not have a 

Government contract of at least 

$150,000, the minimum record retention 

period shall be one year from the date 

of the making of the record or the 

personnel action involved, whichever 

occurs later. Such records include, but 

are not necessarily limited to, records 

relating to requests for reasonable 

accommodation; the results of any 

physical examination; job 

advertisements and postings; 

applications and resumes; tests and test 

results; interview notes; and other 

records having to do with hiring, 

assignment, promotion, demotion, 

transfer, lay-off or termination, rates of 

pay or other terms of compensation, and 

selection for training or apprenticeship. 

In the case of involuntary termination of 

an employee, the personnel records of 

the individual terminated shall be kept 

for a period of two years from the date 

of the termination, except that 

contractors that have fewer than 150 

employees or that do not have a 

Government contract of at least 

$150,000 shall keep such records for a 

period of one year from the date of the 

termination. Where the contractor has 

received notice that a complaint of 

discrimination has been filed, that a 

compliance evaluation has been 

initiated, or that an enforcement action 

has been commenced, the contractor 

shall preserve all personnel records 

relevant to the complaint, compliance 

evaluation or action until final 

disposition of the complaint, 

compliance evaluation or action. The 

term personnel records relevant to the 

complaint, compliance evaluation or 

action would include, for example, 

personnel or employment records 

relating to the aggrieved person and to 

all other employees holding positions 

similar to that held or sought by the 

aggrieved person, and application forms 

or test papers completed by an 

unsuccessful applicant and by all other 

candidates for the same position as that 

for which the aggrieved person applied 

and was rejected. 

(b) Failure to preserve records. Failure 

to preserve complete and accurate 

records as required by paragraph (a) of 

this section constitutes noncompliance 

with the contractor’s obligations under 

the Act and this part. Where the 

contractor has destroyed or failed to 

preserve records as required by this 

section, there may be a presumption 

that the information destroyed or not 

preserved would have been unfavorable 

to the contractor: Provided, That this 

presumption shall not apply where the 

contractor shows that the destruction or 

failure to preserve records results from 

circumstances that are outside of the 

contractor’s control. 

§ 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 and accounts and 

records, including computerized 

records, and other material as may be 

relevant to the matter under 

investigation and pertinent to 

compliance with the Act or this part. 

Information obtained in this manner 

shall be used only in connection with 

the administration of the Act and in 

furtherance of the purposes of the Act. 

§ 60–250.82 Labor organizations and 

recruiting and training agencies. 

(a) Whenever performance in 

accordance with the equal opportunity 

clause or any matter contained in the 

regulations in this part may necessitate 

a revision of a collective bargaining 

agreement, the labor organizations 

which are parties to such agreement 

shall be given an adequate opportunity 

to present their views to OFCCP. 

(b) OFCCP shall use its best efforts, 

directly or through contractors, 

subcontractors, local officials, the 

Department of Veterans Affairs, 

vocational rehabilitation facilities, and 

all other available instrumentalities, to 

cause any labor organization, recruiting 

and training agency or other 

representative of workers who are 

employed by a contractor to cooperate 

with, and to assist in, the 

implementation of the purposes of the 

Act. 

§ 60–250.83 Rulings and interpretations. 

Rulings under or interpretations of the 

Act and this part shall be made by the 

Deputy Assistant Secretary. 

§ 60–250.84 Responsibilities of local 

employment service offices. 

(a) Local employment service offices 

shall refer qualified special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and other 

protected veterans to fill employment 

openings listed by contractors with such 

local offices pursuant to the mandatory 

listing requirements of the equal 

opportunity clause, and shall give 

priority to special disabled veterans, 

veterans of the Vietnam era, recently 

separated veterans, and other protected 

veterans in making such referrals. 

(b) Local employment service offices 

shall contact employers to solicit the job 

orders described in paragraph (a) of this 

section. The state employment security 

agency shall provide OFCCP upon 

request information pertinent to 

72164 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

whether the contractor is in compliance 

with the mandatory listing requirements 

of the equal opportunity clause. 

Appendix A to Part 60–250—Guidelines on 

a Contractor’s Duty To Provide Reasonable 

Accommodation 

The guidelines in this appendix are in 

large part derived from, and are consistent 

with, the discussion regarding the duty to 

provide reasonable accommodation 

contained in the Interpretive Guidance on 

Title I of the Americans with Disabilities Act 

(ADA) set out as an appendix to the 

regulations issued by the Equal Employment 

Opportunity Commission (EEOC) 

implementing the ADA (29 CFR part 1630). 

Although the following discussion is 

intended to provide an independent ‘‘freestanding’’ source of guidance with respect to 

the duty to provide reasonable 

accommodation under this part, to the extent 

that the EEOC appendix provides additional 

guidance which is consistent with the 

following discussion, it may be relied upon 

for purposes of this part as well. See § 60–

250.1(c). Contractors are obligated to provide 

reasonable accommodation and to take 

affirmative action. Reasonable 

accommodation under VEVRAA, like 

reasonable accommodation required under 

section 503 and the ADA, is a part of the 

nondiscrimination obligation. See EEOC 

appendix cited in this paragraph. Affirmative 

action is unique to VEVRAA and section 503, 

and includes actions above and beyond those 

required as a matter of nondiscrimination. 

An example of this is the requirement 

discussed in paragraph 2 of this appendix 

that a contractor shall make an inquiry of a 

special disabled veteran who is having 

significant difficulty performing his or her 

job. 

1. A contractor is required to make 

reasonable accommodations to the known 

physical or mental limitations of an 

‘‘otherwise qualified’’ special disabled 

veteran, unless the contractor can 

demonstrate that the accommodation would 

impose an undue hardship on the operation 

of its business. As stated in § 60–250.2(o), a 

special disabled veteran is qualified if he or 

she satisfies all the skill, experience, 

education and other job-related selection 

criteria, and can perform the essential 

functions of the position with or without 

reasonable accommodation. A contractor is 

required to make a reasonable 

accommodation with respect to its 

application process if the special disabled 

veteran is qualified with respect to that 

process. One is ‘‘otherwise qualified’’ if he or 

she is qualified for a job, except that, because 

of a disability, he or she needs a reasonable 

accommodation to be able to perform the 

job’s essential functions. 

2. Although the contractor would not be 

expected to accommodate disabilities of 

which it is unaware, the contractor has an 

affirmative obligation to provide a reasonable 

accommodation for applicants and 

employees who are known to be special 

disabled veterans. As stated in § 60–250.42 

(see also Appendix B of this part), the 

contractor is required to invite applicants 

who have been provided an offer of 

employment, before they are placed on the 

contractor’s payroll, to indicate whether they 

are covered by the Act and wish to benefit 

under the contractor’s affirmative action 

program. That section further provides that 

the contractor should seek the advice of 

special disabled veterans who ‘‘self-identify’’

in this way as to proper placement and 

appropriate accommodation. Moreover, § 60–

250.44(d) provides that if an employee who 

is a known special disabled veteran is having 

significant difficulty performing his or her 

job and it is reasonable to conclude that the 

performance problem may be related to the 

disability, the contractor is required to 

confidentially inquire whether the problem is 

disability related and if the employee is in 

need of a reasonable accommodation. 

3. An accommodation is any change in the 

work environment or in the way things are 

customarily done that enables a special 

disabled veteran to enjoy equal employment 

opportunities. Equal employment 

opportunity means an opportunity to attain 

the same level of performance, or to enjoy the 

same level of benefits and privileges of 

employment, as are available to the average 

similarly situated employee without a 

disability. Thus, for example, an 

accommodation made to assist an employee 

who is a special disabled veteran in the 

performance of his or her job must be 

adequate to enable the individual to perform 

the essential functions of the position. The 

accommodation, however, does not have to 

be the ‘‘best’’ accommodation possible, so 

long as it is sufficient to meet the job-related 

needs of the individual being accommodated. 

There are three areas in which reasonable 

accommodations may be necessary: (1) 

Accommodations in the application process; 

(2) accommodations that enable employees 

who are special disabled veterans to perform 

the essential functions of the position held or 

desired; and (3) accommodations that enable 

employees who are special disabled veterans 

to enjoy equal benefits and privileges of 

employment as are enjoyed by employees 

without disabilities. 

4. The term ‘‘undue hardship’’ refers to any 

accommodation that would be unduly costly, 

extensive, substantial, or disruptive, or that 

would fundamentally alter the nature or 

operation of the contractor’s business. The 

contractor’s claim that the cost of a particular 

accommodation will impose an undue 

hardship requires a determination of which 

financial resources should be considered—

those of the contractor in its entirety or only 

those of the facility that will be required to 

provide the accommodation. This inquiry 

requires an analysis of the financial 

relationship between the contractor and the 

facility in order to determine what resources 

will be available to the facility in providing 

the accommodation. If the contractor can 

show that the cost of the accommodation 

would impose an undue hardship, it would 

still be required to provide the 

accommodation if the funding is available 

from another source, e.g., the Department of 

Veterans Affairs or a state vocational 

rehabilitation agency, or if Federal, state or 

local tax deductions or tax credits are 

available to offset the cost of the 

accommodation. In the absence of such 

funding, the special disabled veteran should 

be given the option of providing the 

accommodation or of paying that portion of 

the cost which constitutes the undue 

hardship on the operation of the business. 

5. Section 60–250.2(t) lists a number of 

examples of the most common types of 

accommodations that the contractor may be 

required to provide. There are any number of 

specific accommodations that may be 

appropriate for particular situations. The 

discussion in this appendix is not intended 

to provide an exhaustive list of required 

accommodations (as no such list would be 

feasible); rather, it is intended to provide 

general guidance regarding the nature of the 

obligation. The decision as to whether a 

reasonable accommodation is appropriate 

must be made on a case-by-case basis. The 

contractor generally should consult with the 

special disabled veteran in deciding on the 

appropriate accommodation; frequently, the 

individual will know exactly what 

accommodation he or she will need to 

perform successfully in a particular job, and 

may suggest an accommodation which is 

simpler and less expensive than the 

accommodation the contractor might have 

devised. Other resources to consult include 

the appropriate state vocational rehabilitation 

services agency, the Equal Employment 

Opportunity Commission (1–800–669–4000 

(voice), 1–800–669–6820 (TTY)), the Job 

Accommodation Network (JAN) operated by 

the Office of Disability Employment Policy in 

the U.S. Department of Labor (1–800-JAN–

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

organizations (including those that serve 

veterans), and other employers. 

6. With respect to accommodations that 

can permit an employee who is a special 

disabled veteran to perform essential 

functions successfully, a reasonable 

accommodation may require the contractor 

to, for instance, modify or acquire 

equipment. For the visually-impaired such 

accommodations may include providing 

adaptive hardware and software for 

computers, electronic visual aids, braille 

devices, talking calculators, magnifiers, audio 

recordings and braille or large-print 

materials. For persons with hearing 

impairments, reasonable accommodations 

may include providing telephone handset 

amplifiers, telephones compatible with 

hearing aids and telecommunications devices 

for the deaf (TDDs). For persons with limited 

physical dexterity, the obligation may require 

the provision of goose neck telephone 

headsets, mechanical page turners and raised 

or lowered furniture. 

7. Other reasonable accommodations of 

this type may include providing personal 

assistants such as a reader, interpreter or 

travel attendant, permitting the use of 

accrued paid leave or providing additional 

unpaid leave for necessary treatment. The 

contractor may also be required to make 

existing facilities readily accessible to and 

usable by special disabled veterans—

including areas used by employees for 

purposes other than the performance of 

essential job functions such as restrooms, 

break rooms, cafeterias, lounges, 

auditoriums, libraries, parking lots and credit 

Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 72165 

unions. This type of accommodation will 

enable employees to enjoy equal benefits and 

privileges of employment as are enjoyed by 

employees who do not have disabilities. 

8. Another of the potential 

accommodations listed in § 60–250.2(t) is job 

restructuring. This may involve reallocating 

or redistributing those nonessential, marginal 

job functions which a qualified special 

disabled veteran cannot perform to another 

position. Accordingly, if a clerical employee 

who is a special disabled veteran is 

occasionally required to lift heavy boxes 

containing files, but cannot do so because of 

a disability, this task may be reassigned to 

another employee. The contractor, however, 

is not required to reallocate essential 

functions, i.e., those functions that the 

individual who holds the job would have to 

perform, with or without reasonable 

accommodation, in order to be considered 

qualified for the position. For instance, the 

contractor which has a security guard 

position which requires the incumbent to 

inspect identity cards would not have to 

provide a blind special disabled veteran with 

an assistant to perform that duty; in such a 

case, the assistant would be performing an 

essential function of the job for the special 

disabled veteran. Job restructuring may also 

involve allowing part-time or modified work 

schedules. For instance, flexible or adjusted 

work schedules could benefit special 

disabled veterans who cannot work a 

standard schedule because of the need to 

obtain medical treatment, or special disabled 

veterans with mobility impairments who 

depend on a public transportation system 

that is not accessible during the hours of a 

standard schedule. 

9. Reasonable accommodation may also 

include reassignment to a vacant position. In 

general, reassignment should be considered 

only when accommodation within the 

special disabled veteran’s current position 

would pose an undue hardship. 

Reassignment is not required for applicants. 

However, in making hiring decisions, 

contractors are encouraged to consider 

applicants who are known special disabled 

veterans for all available positions for which 

they may be qualified when the position(s) 

applied for is unavailable. Reassignment may 

not be used to limit, segregate, or otherwise 

discriminate against employees who are 

special disabled veterans by forcing 

reassignments to undesirable positions or to 

designated offices or facilities. Employers 

should reassign the individual to an 

equivalent position in terms of pay, status, 

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

position is vacant within a reasonable 

amount of time. A ‘‘reasonable amount of 

time’’ should be determined in light of the 

totality of the circumstances. 

10. The contractor may reassign an 

individual to a lower graded position if there 

are no accommodations that would enable 

the employee to remain in the current 

position and there are no vacant equivalent 

positions for which the individual is 

qualified with or without reasonable 

accommodation. The contractor may 

maintain the reassigned special disabled 

veteran at the salary of the higher graded 

position, and must do so if it maintains the 

salary of reassigned employees who are not 

special disabled veterans. It should also be 

noted that the contractor is not required to 

promote a special disabled veteran as an 

accommodation. 

11. With respect to the application process, 

appropriate accommodations may include 

the following: (1) Providing information 

regarding job vacancies in a form accessible 

to special disabled veterans who are vision 

or hearing impaired, e.g., by making an 

announcement available in braille, in large 

print, or on audio tape, or by responding to 

job inquiries via TDDs; (2) providing readers, 

interpreters and other similar assistance 

during the application, testing and interview 

process; (3) appropriately adjusting or 

modifying employment-related examinations, 

e.g., extending regular time deadlines, 

allowing a special disabled veteran who is 

blind or has a learning disorder such as 

dyslexia to provide oral answers for a written 

test, and permitting an applicant, regardless 

of the nature of his or her ability, to 

demonstrate skills through alternative 

techniques and utilization of adapted tools, 

aids and devices; and (4) ensuring a special 

disabled veteran with a mobility impairment 

full access to testing locations such that the 

applicant’s test scores accurately reflect the 

applicant’s skills or aptitude rather than the 

applicant’s mobility impairment. 

Appendix B to Part 60–250—Sample 

Invitation To Self-Identify 

Note: When the invitation to self-identify 

is being extended to special disabled veterans 

prior to an offer of employment, as is 

permitted in limited circumstances under 

§§ 60–250.42(a)(1) and (2), paragraph 7(ii) of 

this appendix, relating to identification of 

reasonable accommodations, should be 

omitted. This will avoid a conflict with the 

EEOC’s ADA Guidance, which in most cases 

precludes asking a job applicant (prior to a 

job offer being made) about potential 

reasonable accommodations. 

[Sample Invitation to Self-Identify] 

1. This employer is a Government 

contractor subject to the Vietnam Era 

Veterans’ Readjustment Assistance Act of 

1974, as amended, which requires 

Government contractors to take affirmative 

action to employ and advance in 

employment qualified special disabled 

veterans, veterans of the Vietnam era, 

recently separated veterans, and other 

protected veterans. 

2. [The following text should be used when 

extending an invitation to veterans of the 

Vietnam era, recently separated veterans, and 

other protected veterans only.] If you are a 

veteran of the Vietnam era, recently 

separated veteran, or other protected veteran, 

we would like to include you under our 

affirmative action program. If you would like 

to be included under the affirmative action 

program, please tell us. The term ‘‘veteran of 

the Vietnam era’’ refers to a person who 

served on active duty for a period of more 

than 180 days, and was discharged or 

released therefrom with other than a 

dishonorable discharge, if any part of such 

active duty occurred in the Republic of 

Vietnam between February 28, 1961, and 

May 7, 1975 or between August 5, 1964, and 

May 7, 1975, in all other cases. The term also 

refers to a person who was discharged or 

released from active duty for a serviceconnected disability if any part of such active 

duty was performed in the Republic of 

Vietnam between February 28, 1961, and 

May 7, 1975, or between August 5, 1964, and 

May 7, 1975, in all other cases. The term 

‘‘recently separated veteran’’ refers to any 

veteran during the one-year period beginning 

on the date of such veteran’s discharge or 

release from active duty. The term ‘‘other 

protected veteran’’ refers to a person who 

served on active duty during a war or in a 

campaign or expedition for which a 

campaign badge has been authorized, under 

laws administered by the Department of 

Defense. 

[The following text should be used when 

extending an invitation to special disabled 

veterans only.] If you are a special disabled 

veteran, we would like to include you in our 

affirmative action program. If you would like 

to be included under the affirmative action 

program, please tell us. This information will 

assist us in placing you in an appropriate 

position and in making accommodations for 

your disability. The term ‘‘special disabled 

veteran’’ refers to a veteran who is entitled 

to compensation (or who, but for the receipt 

of military retired pay, would be entitled to 

compensation) under laws administered by 

the Department of Veterans Affairs for a 

disability rated at 30 percent or more, or 

rated at 10 or 20 percent in the case of a 

veteran who has been determined by the 

Department of Veterans Affairs to have a 

serious employment handicap. The term also 

refers to a person who was discharged or 

released from active duty because of a 

service-connected disability. 

[The following text should be used when 

extending an invitation to veterans of the 

Vietnam era, special disabled veterans, 

recently separated veterans, and other 

protected veterans. If you are a veteran of the 

Vietnam era, a special disabled veteran, a 

recently separated veteran, or other protected 

veteran, we would like to include you under 

our affirmative action program. If you would 

like to be included under the affirmative 

action program, please tell us. [The 

contractor should include here the 

definitions of ‘‘veteran of the Vietnam era,’’

‘‘special disabled veteran,’’ ‘‘recently 

separated veteran’’ and ‘‘other protected 

veteran’’ found in the two preceding 

paragraphs.] 

3. You may inform us of your desire to 

benefit under the program at this time and/ 

or at any time in the future. 

4. Submission of this information is 

voluntary and refusal to provide it will not 

subject you to any adverse treatment. The 

information provided will be used only in 

ways that are not inconsistent with the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended. 

5. The information you submit will be kept 

confidential, except that (i) supervisors and 

managers may be informed regarding 

restrictions on the work or duties of special 

disabled veterans, and regarding necessary 

accommodations; (ii) first aid and safety 

personnel may be informed, when and to the 

72166 Federal Register / Vol. 70, No. 230 / Thursday, December 1, 2005 / Rules and Regulations 

extent appropriate, if you have a condition 

that might require emergency treatment; and 

(iii) Government officials engaged in 

enforcing laws administered by OFCCP, or 

enforcing the Americans with Disabilities 

Act, may be informed. 

6. [The contractor should here insert a brief 

provision summarizing the relevant portion 

of its affirmative action program.] 

7. [The following text should be used only 

when extending an invitation to special 

disabled veterans, either by themselves or in 

combination with veterans of the Vietnam 

era, recently separated veterans, and other 

protected veterans. Paragraph 7(ii) should be 

omitted when the invitation to self-identify is 

being extended prior to an offer of 

employment.] If you are a special disabled 

veteran it would assist us if you tell us about 

(i) any special methods, skills, and 

procedures which qualify you for positions 

that you might not otherwise be able to do 

because of your disability so that you will be 

considered for any positions of that kind, and 

(ii) the accommodations which we could 

make which would enable you to perform the 

job properly and safely, including special 

equipment, changes in the physical layout of 

the job, elimination of certain duties relating 

to the job, provision of personal assistance 

services or other accommodations. This 

information will assist us in placing you in 

an appropriate position and in making 

accommodations for your disability. 

Appendix C to Part 60–250—Review of 

Personnel Processes 

The following is a set of procedures which 

contractors may use to meet the requirements 

of § 60–250.44(b): 

1. The application or personnel form of 

each known applicant who is a special 

disabled veteran, veteran of the Vietnam era, 

recently separated veteran, or other protected 

veteran should be annotated to identify each 

vacancy for which the applicant was 

considered, and the form should be quickly 

retrievable for review by the Department of 

Labor and the contractor’s personnel officials 

for use in investigations and internal 

compliance activities. 

2. The personnel or application records of 

each known special disabled veteran, veteran 

of the Vietnam era, recently separated 

veteran, or other protected veteran should 

include (i) the identification of each 

promotion for which the covered veteran was 

considered, and (ii) the identification of each 

training program for which the covered 

veteran was considered. 

3. In each case where an employee or 

applicant who is a special disabled veteran, 

veteran of the Vietnam era, recently 

separated veteran, or other protected veteran 

is rejected for employment, promotion, or 

training, the contractor should prepare a 

statement of the reason as well as a 

description of the accommodations 

considered (for a rejected special disabled 

veteran). The statement of the reason for 

rejection (if the reason is medically related), 

and the description of the accommodations 

considered, should be treated as confidential 

medical records in accordance with § 60–

250.23(d). These materials should be 

available to the applicant or employee 

concerned upon request. 

4. Where applicants or employees are 

selected for hire, promotion, or training and 

the contractor undertakes any 

accommodation which makes it possible for 

him or her to place a special disabled veteran 

on the job, the contractor should make a 

record containing a description of the 

accommodation. The record should be 

treated as a confidential medical record in 

accordance with § 60–250.23(d). 

[FR Doc. 05–23403 Filed 11–30–05; 8:45 am] 

BILLING CODE 4510–CM–P