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DOL-VETS Seeking Input on VETS-4212 Report

November 19, 2020 By Matt Nusbaum

The Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) is currently seeking to extend approval for the current VETS-4212 form for another three years and is soliciting public comment regarding whether and to what extent the agency should make any changes to the current form. Note that the agency itself is not proposing any changes at this time, but may do so in response to public comment.

Federal contractor employers that are subject to affirmative action regulations pertaining to certain veteran categories defined by the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) are also required to annually file the VETS-4212 report consisting of summary data regarding veteran utilization and hiring activity. Although DOL-VETS administers the reporting, the requirement is enforced by the Office of Federal Contract Compliance Programs (OFCCP), traditionally only by requesting a copy of the latest VETS-4212 report from contractors under audit.

The VETS-4212 report is an “information collection” subject to the Paperwork Reduction Act which, among other things, requires the administering agency to obtain approval from the White House Office of Management and Budget (OMB). Contractors cannot be required to respond to a covered information collection unless a valid OMB “control number” and expiration date are displayed on the collection instrument (typically a form). OMB approval is usually granted for three-year periods, after which the agency must obtain an extension. Agencies often use the (re)approval process as an opportunity to make any changes to the information collection, if necessary, but can do so at any time.

OMB approval for the current VETS-4212 form is set to expire on March 31, 2021, so DOL-VETS has plenty of time to obtain approval for its continued use. Note, however, that as long as the agency submits its approval request to OMB prior to the expiration date of the current approval period, approval is automatically extended while OMB completes its review process. At this time, DOL-VETS is seeking public input regarding whether or not the agency should include any modifications in its eventual request for review by OMB. That request has not yet been submitted.

According to the notice in the Federal Register, DOL-VETS is soliciting comments generally, but is particularly interested in comments that:

Evaluate whether the report is necessary, including whether the information has practical utility;
Evaluate the accuracy of the agency’s burden estimate;
Enhance the quality, utility, and clarity of the information collected; and
Minimize the burden on those who are required to respond.

In a somewhat unusual and so far unexplained move, DOL-VETS appears to only be accepting comments by mail, email, or fax. It is unclear why the agency is not using the federal government’s online portal at www.regulations.gov. Submitted comments will be available for public inspection at the DOL-VETS home office in Washington, D.C., but it does not appear that comments will be posted at regulations.gov, which has been the usual practice for a number of years now.

Comments are due by January 14, 2021. BCGi does not intend to file comments at this time. If you have questions about this information collection or any EEO/AA requirements, contact us at bcgi@biddle.com.

OFCCP Lowers Veteran Hiring Benchmark to 5.7% Effective 03/31/2020

April 16, 2020 By Matt Nusbaum

Effective March 31, 2020, the national percentage of veterans in the civilian labor force, as published on the OFCCP website, is now 5.7%.

If your organization adopts the national percentage as the annual protected veteran benchmark, and your AAP start date is on or after March 31, you should use the 5.7% figure.

Although the OFCCP’s guidance here has been spotty and often less than clear, the agency expects contractors to adopt the “current” percentage as of the AAP start date. If the agency reports a lowering (or raising) of the national percentage during the course of a contractor’s AAP cycle, the OFCCP does not expect contractors to change the benchmark adopted at the start of the AAP year. However, the OFCCP’s regulations do not actually prohibit that.

So, if your AAP cycle started before March 31, the OFCCP would expect you to have adopted the percentage that was “current” at the start of your cycle, 5.9%, and to maintain that benchmark until the start of your next AAP cycle, despite the fact that during the year the percentage dropped 0.2%.

For a more detailed discussion of the protected veteran hiring benchmark, see the free BCGi encyclopedia article on Section 503 and VEVRAA Affirmative Action Program Requirements.

OFCCP Proposes to Collect Detailed Applicant- and Employee-Level Transaction and Compensation Data in 503 and VEVRAA Focused Reviews

April 12, 2019 By Matt Nusbaum

Yesterday OFCCP Director Craig Leen and ODEP Deputy Assistant Secretary Jennifer Sheehy participated in a National Industry Liaison Group (NILG) webinar entitled, “OFCCP and ODEP: Section 503 Compliance & Focused Reviews.” The presentation provided a road map of sorts for what OFCCP will be looking for in upcoming 503 (disability) focused reviews. A recording of the webinar will be made available on the NILG website, but a much clearer road map was submitted to the White House Office of Management and Budget (OMB) today.

Director Leen stated during the webinar that OFCCP intends to “look at” contractors’ hiring, promotion, termination, and compensation data for evidence of potential discrimination against individuals with disabilities. While contractors are currently required to prepare (and submit for audit) summary employment transaction data with regard to individuals with disabilities, the proposed 503 (and VEVRAA) focused review scheduling letters would, if approved in current form, require contractors to submit detailed applicant- and employee-level data regarding hiring, promotion, termination, and compensation activity, along with disability (or veteran) self-identification data.

When OFCCP significantly overhauled the regulations implementing Section 503 of the Rehabilitation Act in 2013, the agency noted in the preamble to the Final Rule published in the Federal Register that OFCCP “will not be using the applicant and hiring data [regarding individuals with disabilities] to conduct underutilization or impact ratio analyses.” However, the agency also noted that “enforcement actions will not be brought solely on the basis of statistical disparities between individuals with, and without, disabilities” (emphasis added), potentially leaving the door open to statistical disparities playing some role.

Of further note, the proposed focus review scheduling letters would require contractors that receive the letter six months or more into their current AAP cycle to also submit transaction data for “every completed month of the current AAP year,” as opposed to “at least six months” of “update” data requested by OFCCP’s current compliance evaluation scheduling letters.

OFCCP has also published its proposed compliance check scheduling letter for supply and service contractors. Public comments regarding OFCCP’s proposed scheduling letters are due June 11, 2019.

During the NILG webinar, Director Leen had some additional revelations that should be of immediate interest to federal contractor employers. For instance, he spent a significant amount of time talking about OFCCP’s efforts to clear the books of “aged” cases, defined as audits that have been ongoing for more than two years. Director Leen noted that the agency has “hundreds” of cases that are past the two-year mark, a “big chunk” that have been ongoing for six years or more, and plenty in the nine- to ten-year range. He has directed all OFCCP Regional Directors to close their aged audits, to the extent possible, by the end of OFCCP’s current fiscal year (which ends September 30, 2019).

He recommended that contractors with aged cases contact their regional director and “make an offer.” While Director Leen’s suggestion was certainly made with the best intentions, Biddle Consulting Group recommends that contractors with aged cases proceed with more caution and consult with legal counsel regarding what, if any, opportunity Leen’s directive might provide to resolve long-running audits.