Affirmative action regulations regarding veterans just became a bit more complicated. The U.S. Department of Labor has issued a new set of regulations covering federal contracts and contract modifications made on or after December 1, 2003. The final regulations incorporate amendments that Congress made to the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA") when it passed the Jobs for Veterans Act of 2002 ("JVA").

Contracts signed before December 1, 2003 remain governed by pre-JVA regulations. The result is that federal contractors may be forced to comply with two distinct sets of regulations if they have both pre- and post-December 1, 2003 contracts. The older regulations are codified at 41 CFR Part 60-250. The new regulations are codified at 41 CFR Part 60-300. Both sets of regulations prohibit discrimination and obligate federal contractors to take affirmative action with regard to protected veterans.

The new JVA regulations contain three major changes: (1) the contract threshold has increased from $25,000 to $100,000; (2) the categories of protected veterans has been modified; and (3) the mandatory job listing requirement has been revised. A comparison of the two sets of regulations appears at the end of this summary.

Contract Threshold

The JVA regulations apply only to government contracts of $100,000 or more that were entered into or modified on December 1, 2003 or since then. The dollar threshold establishes both coverage under the regulations and the requirement to prepare an affirmative action plan ("AAP"). Regulations governing pre-December 1, 2003 contracts attach when a contractor has a contract of $25,000 or more, but there is no requirement for the contractor to prepare an AAP unless the contract is valued at $50,000 or more.

Veterans Categories

The JVA regulations remove the Vietnam-era veterans category, but adds an "Armed Forces service medal veteran." Thus, Vietnam-era veterans may or may not be covered under the new regulations; coverage depends on whether they meet the criteria for the "service medal" or other protected categories. Also under the new regulations, coverage of "recently separated veterans" was extended from one year to three years. Finally, the JVA regulations eliminate the disability rating found in the pre-JVA regulations.

Mandatory Job Postings

The pre-JVA regulations allowed federal contractors to satisfy job listing requirements by posting covered positions with either the local employment service or with America's Job Bank, which was abolished earlier this year. The new regulations eliminate the option to post positions on any subsequent nationwide job bank. Instead, contractors may either post covered positions with the appropriate local employment service or with the state workforce agency job bank (e.g., Pennsylvania Career Link). Links to state job banks may be found at http://careeronestop.org. Contractors are required to post all positions with the employment service except positions lasting fewer than three days, positions filled from within the existing workforce, and senior management positions. The new regulations provide that the standard for determining a senior management employee is the same as the standard for determining an "executive employee" under the Fair Labor Standards Act. The posting requirement extends to employment agencies that federal contractors may use to fill positions, a point clarified in the new regulations.

VETS-100 Report

The VETS-100 Report, which tracks a federal contractor's employment of veterans, has not yet incorporated the new JVA definitions of veterans. The form instead uses the pre-JVA definitions. In August 2006, the Veterans Employment and Training Service proposed a regulation to create the VETS-100A form to capture data consistent with the JVA definitions of veterans. Once the regulation is adopted, contractors subject to both the pre-JVA regulations and the new JVA regulations will be required to complete both reports.

Next Steps

Contractors should review their contracts to determine whether they must follow pre-JVA regulations, the JVA regulations, or both. Because the obligations are different, a contractor may need to modify its Affirmative Action Plan and related forms, including its self-identification form required by the regulations and any VETS-100 self-identification form, both of which should be provided to new hires. Contractors also may need to modify the provisions of purchase orders or other vendor contracts to incorporate citation to the new regulations.

VEVRAA

(contracts before 12/1/03)

JVA

(contracts on or after 12/1/03)

Coverage: $25,000 contract; contractor must prepare affirmative action plan if contract is valued at $50,000 and contractor has 50 or more employees.

Coverage: $100,000 contract; contractor must prepare affirmative action plan if it has 50 or more employees.

Special disabled veteran: Refers to (1) 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 Veteran Affairs to have a serious employment handicap; or (2) a person who was discharged or released from active duty because of a service-connected disability.

Disabled veteran: Refers to (1) 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, or (2) a person who was discharged or released from active duty because of a service-connected disability.

Recently separated veteran: Refers to any veteran who was separated from military service during the one-year period beginning on the date of the veteran's discharge or release from active duty.

Recently separated veteran: Refers to any veteran who was separated from military service during the three-year period beginning on the date of the veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.

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.

Other protected veteran: Same. (The Department of Labor has agreed to provide a link on its web site to identify qualifying campaigns.)

 

Armed Forces service medal veteran: Refers to a veteran who participated in a U.S. military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985. A veteran's discharge form (DD Form 214) indicates whether the veteran received a service medal.

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 from active duty 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 service-connected disability if any part of such active duty was performed in the Republic of Vietnam between February 28, 1961, and May 7, 1975, or between August 5, 1964, and May 7, 1975, in all other cases.

Vietnam-era veterans are no longer covered under the JVA as a separate group. Individuals may be covered if they qualify under another category.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.