[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Rules and Regulations]
[Pages 19366-19369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9661]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AA62
Affirmative Action Obligations of Contractors and Subcontractors
for Disabled Veterans and Veterans of the Vietnam Era; Invitation to
Self-Identify
AGENCY: Office of Federal Contract Compliance Programs (OFCCP), Labor.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule modifies the OFCCP regulation requiring
Government contractors to invite job applicants to inform the
contractor whether the applicant believes that he or she may be covered
by the affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, and wishes to benefit under the
contractor's affirmative action program. These changes are
substantively identical to OFCCP revisions, published elsewhere in this
issue of the Federal Register, to the rule requiring invitations to
self-identify under Section 503 of the Rehabilitation Act of 1973.
Issuing identical rule changes will minimize regulatory burdens,
because Government contractors will not need separate forms, notices
and posters for inviting self-identification under the two affirmative
action laws.
DATES: This interim rule will take effect on August 29, 1996.
OFCCP invites comments on this interim rule. To be assured of
consideration, comments must be in writing and must be received on or
before July 1, 1996.
ADDRESSES: Comments should be sent to Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, Room C--3325-200
Constitution Avenue, N.W., Washington, D.C. 20210.
As a convenience to commenters, OFCCP will accept public comments
transmitted by facsimile (FAX) machine. The telephone number of the FAX
receiver is (202) 219-6195. Only public comments of six or fewer pages
will be accepted via FAX transmittal. This limitation is necessary in
order to assure access to the equipment. Receipt of FAX transmittals
will not be acknowledged, except that the sender may request
confirmation of receipt by calling OFCCP at (202) 219-9430 (voice) or 1
(800) 326-2577 (TDD).
Comments received will be available for public inspection in Room
C-3325, from 9 a.m. to 5 p.m., Monday through Friday, except legal
holidays, from May 15, 1996 until this interim rule is published in
final form. Persons who need assistance to review the comments will be
provided with appropriate aids such as readers or print magnifiers. To
schedule an appointment, call (202) 219-9430 (voice) or 1 (800) 326-
2577 (TDD).
Copies of this interim rule are available in the following
alternative formats: large print, electronic file on computer disk and
audio-tape. Copies may be obtained from OFCCP by calling (202) 219-9430
(voice) or 1 (800) 326-2577 (TDD).
FOR FURTHER INFORMATION CONTACT: Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, Room C-3325, 200
Constitution Avenue NW., Washington, D.C. 20210. Telephone: (202) 219-
9475 (voice), 1 (800) 326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Background
The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212
(Section 4212, VEVRAA, or the Act), require parties holding Government
contracts and 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.'' OFCCP enforces Section 4212
and has published implementing regulations at 41 CFR Part 60-250.
Covered disabled veterans include persons entitled to disability
compensation under the laws administered by the Department of Veterans
Affairs for disability rated at 30 percent or more, and persons whose
discharge or release from active duty was for a disability incurred or
aggravated in the line of duty. 41 CFR 250.2.
Today's interim rule regarding the invitation to self-identify in
41 CFR 60-250.5(d), described in detail below, is prompted by OFCCP's
publication, elsewhere in today's Federal Register, of a final rule
revising the regulations at 41 CFR Part 60-741 implementing Section 503
of the Rehabilitation Act of 1973. Section 503 requires that Government
contractors and subcontractors take affirmative action to employ and
advance in employment qualified individuals with disabilities.
Because of the close similarity between VEVRAA and Section 503 in
terms of their substantive protections and jurisdictional requirements,
these two laws have been treated in tandem by OFCCP and often by
Government contractors as well. For instance, OFCCP's regulations
implementing the two laws historically have been parallel. Many
contractors use the same notices and forms to comply with their
regulatory duties under each law. One such obligation is that
contractors extend to their employees and applicants an invitation to
identify themselves as being covered under the law and wishing to
benefit under the contractor's affirmative action program. Under the
existing VEVRAA regulation at 41 CFR 60-250.5(d), contractors must
extend the invitation to all job
[[Page 19367]]
applicants. By contrast, the new Section 503 rule at 41 CFR 60-
741.42(a) explicitly requires contractors to invite applicants to self-
identify after making offers of employment and before applicants begin
their employment duties. The new Section 503 rule, which is consistent
with standards set under the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. 12112(d); 29 CFR 1630.13-.14), permits inviting an
applicant to self-identify before a job offer is made only in two
limited circumstances: (i) if the invitation is made when the
contractor actually is undertaking affirmative action at the pre-offer
stage; and (ii) if the invitation is made pursuant to a Federal, state
or local law requiring affirmative action for individuals with
disabilities.
Representatives of Government contractors have expressed concern
that if contractors are faced with a self-identification requirement
under VEVRAA that is different than the requirement under Section 503,
each contractor will have to revise its forms, notices, and posters
when the Section 503 final regulations take effect, and then change
these same forms, notices, and posters again when OFCCP promulgates its
contemplated revisions to the VEVRAA regulations. Consistent with
suggestions by the regulated community, this interim rule modifies the
VEVRAA self-identification regulation to mirror the parallel regulation
under Section 503 and makes these changes effective at the same time as
the new Section 503 regulations.
The Department believes that there is good cause under the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), to issue
today's interim rule without first issuing a proposed rule and
undergoing rulemaking procedures. As noted above, if this interim rule
is not effective at the same time as the Section 503 regulations,
covered contractors will need to have separate forms, notices and
posters for inviting self-identification under the two laws. Delaying
uniformity among these OFCCP rules, as well as with the ADA, will waste
resources within the regulated community and confuse the public as to
the law. In addition, the issues concerning Government contractors'
inviting individuals with disabilities to self-identify to obtain the
benefits of affirmative action programs, and conformance with the Equal
Employment Opportunity Commission's (EEOC) implementation of the ADA,
were already subject to public scrutiny during the Section 503
rulemaking. See, e.g., 57 FR 48084, 48095, 48097, Oct. 21, 1992. The
modifications made to Sec. 60-250.5(d) are in accordance with the
Congressional mandate expressed in the ADA regarding pre-employment
inquiries of the existence of disabilities.
For these reasons, publication of this interim rule in proposed
form prior to the effective date of the Section 503 invitation to self-
identify regulation is impracticable, unnecessary and contrary to the
public interest. Thus, good cause exists under the APA to dispense with
notice of proposed rulemaking.
Summary of the Interim Rule
This interim rule, 41 CFR 60-250.5(d), is substantively the same as
the new Section 503 regulation at 41 CFR 60-741.42; it adopts the
standards contained in the ADA implementing regulations regarding
disability discrimination, but applies these standards to covered
disabled veterans and veterans of the Vietnam era. Much of Sec. 60-
250.5(d), however, will remain the same as it has been since it was
published 20 years ago. (41 FR 26386, 26389, June 25, 1976.) A summary
of the major changes to the previous rule follows.
Paragraph (d)(1) of the interim rule mirrors language in the
Section 503 final rule at Sec. 60-741.42(a). Paragraph (d)(1) requires
the contractor, after making an offer of employment and before the
applicant begins his or her employment duties, to invite applicants to
self-identify in order to benefit from the contractor's affirmative
action program for disabled veterans and veterans of the Vietnam era.
This approach is consistent with the ADA and the EEOC regulation at 29
CFR 1630.14(b), which provides that an employer may require a medical
inquiry after making an offer of employment to a job applicant and
before the applicant begins his or her job duties, if all entering
employees in the same job category are subjected to such an inquiry
regardless of disability.
Paragraphs (d)(2) and (d)(3) provide limited exceptions to the
general requirement of paragraph (d)(1). In paragraph (d)(2),
contractors are permitted to invite disabled veterans to self-identify
before an employment offer has been made only in two limited
circumstances: (i) if the invitation is made when the contractor
actually is undertaking affirmative action for disabled veterans at the
pre-offer stage; or (ii) if the invitation is made under a Federal,
state or local law requiring affirmative action for disabled veterans.
EEOC's October 10, 1995, ``ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations'' also authorizes
pre-employment inquiries in these circumstances. In paragraph (d)(3),
contractors are similarly permitted to make pre-offer invitations to
Vietnam-era veterans to self-identify in limited circumstances: (i) if
the invitation is made when the contractor actually is undertaking
affirmative action for Vietnam-era veterans at the pre-offer stage; or
(ii) if the invitation is made under a Federal, state or local law
requiring affirmative action for Vietnam-era veterans.
Paragraph (d)(4) of the interim rule requires that the invitation
inform the individual that the request to benefit under the
contractor's affirmative action program may be made immediately or at
any time in the future. This revision will help ensure that the
individual is aware that he or she is not precluded from making the
request at a later time whether or not an initial request was made. For
example, a covered veteran simply may choose not to self-identify
before beginning work, but may wish to do so later.
Paragraph (d)(4) also requires that the contractor maintain a
separate file on applicants and employees who have identified
themselves as covered disabled veterans or Vietnam-era veterans and
provide that file to OFCCP upon request. This requirement parallels 41
CFR Sec. 60-741.42(b), and is consistent with separate file
requirements already existing under the ADA (42 U.S.C. 12112(d)(3)(B);
29 CFR 1630.14(b)(1)). For many years, the VEVRAA regulations have
required contractors to maintain the confidentiality of this
information, and the explicit requirement for separate files of such
information aids in the protection of the records' confidentiality.
Paragraph (d)(5) of the interim rule mirrors Sec. 60-741.42(c).
This provision clarifies that nothing in this section relieves the
contractor of its obligation to take affirmative action with respect to
those applicants or employees who are known to the contractor to be
disabled veterans or Vietnam-era veterans. The invitation to self-
identify is not the only affirmative action requirement under VEVRAA.
This provision merely helps to ensure that contractors are not confused
about this important point. For example, as stated in current Sec. 60-
250.6(b), ``[c]ontractors shall review their personnel processes to
determine whether their present procedures assure careful, thorough and
systematic consideration of the job qualifications of known disabled
veteran applicants and Vietnam era veteran applicants for job vacancies
filled either by hiring or promotion, and for all training
opportunities offered or available.''
[[Page 19368]]
Paragraph (d)(6) provides that nothing in this section relieves the
contractor from liability for discrimination under the Act. This
provision is identical to language in the current VEVRAA regulation and
to the language in Sec. 60-741.42(d), and is merely organized into its
own subparagraph.
The contractor may develop its own invitation for complying with
Sec. 60-250.5(d), although an acceptable form of such invitation is set
forth in revised Appendix A to Part 60-250. This amended appendix is
substantially similar to the current Appendix A, but incorporates a
number of changes to the appendix to conform it to the requirements of
revised Sec. 60-250.5(d). For instance, amended Appendix A clarifies
that the information submitted to the contractor will be used to assist
it in placing the individual in an appropriate position and in making
appropriate accommodations, and that the information will be used only
in accordance with the Act and the regulations. New Appendix A also
specifies that the contractor should incorporate into the invitation a
brief summary of the relevant portion of its affirmative action
program.
Regulatory Procedures
Executive Order 12866
This interim rule is issued in conformance with Executive Order
12866. This interim rule has been determined not to be significant for
purposes of Executive Order 12866 and therefore need not be reviewed by
OMB. This interim rule does not meet the criteria of Section 3(f)(1) of
Executive Order 12866 and therefore the information listed in Section
6(a)(3)(C) of that Order is not required.
This conclusion is based on the fact that this interim rule does
not substantively change the existing obligation of Federal contractors
to apply a policy of nondiscrimination and affirmative action in their
employment of qualified special disabled veterans and veterans of the
Vietnam era. Although the rule generally conforms the existing Section
4212 regulation regarding the invitation to self-identify to the new
Section 503 rule, it does not significantly alter the substance of the
existing provisions.
Regulatory Flexibility Act
The interim rule will retain consistency, and avoid confusion and
conflict, between the Section 4212 regulation requiring larger
Government contractors to provide an invitation to self-identify and
the parallel Section 503 regulation. Moreover, these two regulations
conform to the ADA nondiscrimination requirements applicable to private
and State and local government employers with 15 or more employees. In
view of this regulatory consistency and because the interim 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, under the
Regulatory Flexibility Act, 5 U.S.C. 605(b), a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act
This interim rule does not include any Federal mandate that may
result in the expenditure by State, local and tribal governments in the
aggregate, or by the private sector, of $100,000,000 or more in any one
year.
Paperwork Reduction Act
The interim rule requires those contractors who, for affirmative
action purposes, invite applicants and employees to identify themselves
as covered disabled veterans or veterans of the Vietnam era to maintain
a separate file on such applicants and employees. This recordkeeping
provision is the same as that contained in the Section 503 final rule,
41 CFR Sec. 60-741.42(b). Approximately 89,000 Federal service and
supply contractors and 100,000 Federal construction contractors are
subject to VEVRAA and Section 503.
OFCCP does not believe that this requirement will result in
increased recordkeeping burdens for contractors. OFCCP believes that a
number of contractors may already have maintained separate files on
such applicants and employees in order to implement the VEVRAA
confidentiality requirements. In addition, the ADA presently requires
employers with 15 or more employees to maintain on separate forms and
in separate medical files information obtained regarding the medical
condition or history of applicants and to treat this information as
confidential medical records (42 U.S.C. 12112(d)(3)(B); 29 CFR
1630.14(b)(1)). Furthermore, because the invitation to self-identify is
only required by the interim rule to occur after a job offer has been
made, and not to all applicants, there will be fewer records of self-
identification being generated than in the past. Therefore, although
the recordkeeping language in the interim rule is more expansive than
that in the current VEVRAA regulations, OFCCP does not believe it will
result in increased recordkeeping burdens.
As noted above, OFCCP believes that by issuing this interim rule to
be effective at the same time as the Section 503 regulations, the
covered contractors' paperwork requirements will be minimized because
there will not be a need to have separate forms, notices and posters
for inviting self-identification under VEVRAA and Section 503.
Uniformity among the implementing regulations of VEVRAA, Section 503
and the ADA, will also minimize confusion and, therefore, help to
ensure the greatest public benefit associated with these Federal
programs.
It is also important to note that the interim rule retains a sample
invitation in Appendix A to Part 60-250. Thus, the interim rule
minimizes the burden on contractors of designing their own invitations,
while preserving flexibility for those contractors who currently use,
or decide to develop, different but otherwise effective and appropriate
forms of invitation.
Information collection under the VEVRAA regulations, and under the
Section 503 regulations, is covered by OMB control numbers 1215-0072
and 1215-0163. The interim rule's recordkeeping requirements have been
submitted to OMB under the Paperwork Reduction Act (PRA), 44 U.S.C.
3501. OFCCP solicits comments concerning the interim rule's collection
of information to: (i) evaluate whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (ii) evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of methodology and assumptions used; (iii) enhance the
quality, utility and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. The new recordkeeping requirement in the
interim rule is not effective until OFCCP displays a currently valid
OMB control number. Upon receipt of that number, which OFCCP
anticipates will take between 90 and 120 days, OFCCP will publish a
document in the Federal Register.
Request for Public Comments
OFCCP requests public comment on the provisions of the interim
rule. OFCCP invites written views from all interested parties,
including public and
[[Page 19369]]
private disability organizations, veterans representatives, private and
State and local government contractors with the Federal Government,
Federal contracting agencies, and concerned individuals. OFCCP will
consider the public comments in developing a final rule.
List of Subjects in 41 CFR Part 60-250
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Investigations, Reporting and recordkeeping requirements,
Veterans.
Signed at Washington, D.C. this 12th day of April, 1996.
Robert B. Reich,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
For the reasons set forth above, 41 CFR Part 60-250 is amended as
set forth below.
PART 60-250--AFFIRMATIVE ACTION OBLIGATIONS OF CONTRACTORS AND
SUBCONTRACTORS FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM
ERA
1. The authority citation for Part 60-250 is revised to read as
follows:
Authority: 29 U.S.C. 793; 38 U.S.C. 4211 and 4212; Executive
Order 11758 (3 CFR, 1971-1975 Comp., p. 841).
2. Section 60-250.5 is amended by revising paragraph (d) to read as
follows:
Sec. 60-250.5 Applicability of the affirmative action program
requirement.
* * * * *
(d) Invitation to self-identify. (1) Except as provided in
paragraphs (d) (2) and (3) of this section, the contractor shall, after
making an offer of employment to a job applicant and before the
applicant begins his or her employment duties, invite the applicant to
inform the contractor whether the applicant believes that he or she may
be covered by the Act and wishes to benefit under the affirmative
action program.
(2) The contractor may invite disabled veterans to self-identify
prior to making a job offer only when:
(i) The invitation is made when the contractor actually is
undertaking affirmative action for disabled veterans at the pre-offer
stage; or
(ii) The invitation is made pursuant to a Federal, state or local
law requiring affirmative action for disabled veterans.
(3) The contractor may invite veterans of the Vietnam era to self-
identify prior to making a job offer only when:
(i) The invitation is made when the contractor actually is
undertaking affirmative action for veterans of the Vietnam era at the
pre-offer stage; or
(ii) The invitation is made pursuant to a Federal, state or local
law requiring affirmative action for veterans of the Vietnam era.
(4) The invitation referenced in paragraphs (d)(1) through (3) 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 invitation also shall summarize the relevant
portions of the Act and the contractor's affirmative action program.
Furthermore, the invitation 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. If an applicant so identifies himself or herself, 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 on persons who have self-
identified and provide that file to OFCCP upon request. This
information may be used only in accordance with this part. (An
acceptable form for such an invitation is set forth in Appendix A of
this part. Because a contractor usually may not seek advice from an
applicant regarding placement and accommodation until after a job offer
has been extended, the invitation set forth in Appendix A of this part
contains instructions regarding modifications to be made if it is used
at the pre-offer stage.)
(5) 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 be disabled veterans or
veterans of the Vietnam era.
(6) Nothing in this section shall relieve the contractor from
liability for discrimination under the Act.
3. Appendix A to Part 60-250 is revised to read as follows:
Appendix A to Part 60-250--Sample Invitation to Self-Identify
Note: When the invitation to self-identify is being extended
prior to an offer of employment, as is permitted in limited
circumstances under Sec. 60-250.5(d)(2) and (3), paragraph 2(ii) of
this appendix, relating to identification of reasonable
accommodations, should be omitted. This will avoid a conflict with
the EEOC's Americans with Disabilities Act (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 disabled
veterans and veterans of the Vietnam era covered by the Act. If you
are a disabled veteran or veteran of the Vietnam era covered by the
Act and would like to be considered under the affirmative action
program, please tell us. You may inform us of your desire to benefit
under the program at this time and/or at any time in the future.
This information will assist us in placing you in an appropriate
position and in making accommodations for your disability if you are
a disabled veteran. [The contractor should here insert a brief
provision summarizing the relevant portion of its affirmative action
program.] Submission of this information is voluntary and refusal to
provide it will not subject you to any adverse treatment.
Information you submit will be kept confidential, except that (i)
supervisors and managers may be informed regarding restrictions on
the work or duties of disabled veterans, and regarding necessary
accommodations; (ii) first aid and safety personnel may be informed,
when and to the extent appropriate, if the condition might require
emergency treatment; and (iii) Government officials engaged in
enforcing laws administered by OFCCP or the Americans with
Disabilities Act, may be informed. 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.
2. If you are a disabled veteran or a veteran of the Vietnam era
covered by the Act, we would like to include you under the
affirmative action program. If you are a 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.
[FR Doc. 96-9661 Filed 4-30-96; 8:45 am]
BILLING CODE 4510-27-P
