VEVRAA and VETS 4212
VEVRAA or the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 is a federal law that provides protection to Veterans from employment discrimination. It prohibits federal contractors and subcontractors from discriminating in employment against protected Veterans. VEVRAA also requires these employers to take affirmative action to recruit, hire, promote and retain these Veterans.
Which Employers have to comply with VEVRAA?
Another law that protects Veterans, the Uniformed Services Employment and Reemployment Rights Act (USERRA), was passed in 1994 and amended in 2005. Virtually all U.S. employers must comply with USERRA. Employers who are federal contractors or subcontractors must comply with VEVRAA. Though VEVRAA and USERRA are not limited to veterans’ disability issues, these two laws do provide protections for veterans with disabilities. For more on USERRA: HR Law: What is USERRA?
VEVRAA Final Rules impact employers who have federal contracts or subcontracts of $100,000 or more, if entered into their contract prior to 10/1/15. The threshold for contracts entered after 10/1/15 is $150,000. ($150,000 was increased from $100,000 due to inflation starting in 2016 reports)
Here is a Breakdown of the Employer Thresholds as updated 10/1/15 from the OFCCP: (Box 3 in Infographic)
» Basic VEVRAA Coverage: Any Number of Employees plus A Contract of $150,000 or more
» Affirmative Action Plan (AAP) Coverage: 50 or More Employees plus A Contract of $150,000 or more. (must also develop a VEVRAA AAP, as described in 41 CFR 60-300, Subpart C.)
Who are “Protected Veterans”?
Despite its name, VEVRAA protections are not limited to Vietnam era veterans (those veterans who served in Vietnam between February 28, 1961, and May 7, 1975). VEVRAA also protects the employment rights of several categories of veterans who are called “Protected Veterans.” Here are the categories:
» Disabled veterans: Those who are “entitled to compensation…under laws administered by the Secretary of Veterans Affairs” or “those who were released from active duty because of a service-connected disability.”
» Recently separated veterans
» Active duty wartime or campaign veterans
» Campaign badge veterans
» Armed Forces service medal veterans.
1)Set Benchmarks – Covered Employers must create a plan to set and meet benchmarks regarding employment of protected veterans. Employers can choose from these two options:
» Adopt the benchmark based on the national percentage of veterans currently in the workforce (see grid below)
» Create an individualized benchmark based on employer’s own interpretation of the best available data nationally and within their state and region. (use this site https://ofccp.dol-esa.gov/errd/VEVRAA.jsp)
» For more on setting benchmarks – the DOL sets new benchmarks every year. Here is the 2016 benchmarks: This grid is from the DOL’s website. “This chart will be updated annually and is intended for use by contractors who choose to set a VEVRAA hiring benchmark using the annual national percentage of veterans in the civilian labor force.”
|Percentage (based on Census Population)||Effective Date (If using the annual national percentage of veterans as a benchmark, then a contractor would select whichever percentage is effective when the AAP year begins. )|
2)Request Voluntary Self-ID Forms – Covered employers must request each applicant to complete a Voluntary Self-ID Form for Veteran Protection.
» Pre-offer self-identify will involve asking whether the applicant believes that s/he is a protected veteran under VEVRAA without asking about the particular category of protection. Sample Form for Pre Offer Self-ID (EEO & Veteran Status)
» Post-offer self-identification will request information regarding the specific category of protected veteran status. Sample Form for Post Offer Self-ID (EEO & Veteran Status)
3) Be Compliant with OFCCP Audits – Provide necessary information during on-site and off-site audits.
4) Track Veteran Recruiting and Hiring Efforts – Using self-Id forms, create a plan to track your efforts in attracting and hiring protected veterans. These reports should be kept for three years.
» Pre-Offer: Collect “the number of protected veteran applicants”; “total number of job openings and filled” and “the total number of applicants for each position opened.”
» Post-Offer: collect “the number of protected of veteran applicants that were hired” and “the total number of applicants hired.”
5) Post Job Advertisements – Post ads to where Veterans can view and access them. Here is an option: Employment Service Delivery Systems (ESDS) (formerly referred to in the regulations as State Workforce System)
6) Communicate to Subcontractors – Place specific wording in contracts and subcontracts that communicate the obligation to hire and employ protected Veterans
7) Recruit Veterans – Use appropriate outreach and positive recruitment activities. Here are a few, but contractors should find other sources to identify and attract Veterans: Department of Defense Transition Assistance Program AND National Resource Directory.
VETS 4212 Required Reporting
VEVRAA requires federal contractors and subcontractors with contracts of $100,000 or more (if entered into contract before 10/1/15) and $150,000 (if entered into contract after 10/1/15) are required to file reports annually with Veterans’ Employment and Training Service (VETS). (The previously used VETS-100 and VETS-100A forms have been discontinued and are no longer being accepted by VETS. VETS 4212 have made reporting more flexible in order to reduce the time and cost burden on contractors.)
» Form VETS-4212 is the updated form that should be used for reporting the Federal Contractor’s Veterans’ Employment Report. Sample form: Form VETS-4212
» Must file between August and September of each year
» Upon the successful submission of a VETS-4212 report(s), federal contractors will receive an email confirmation of receipt notification for their records. These confirmation notifications should be used as verification of submission by Federal Contracting Officers when obligating funds to an awarded contract. The copy of a submitted report is not required by VETS to suffice for a confirmation / validation of submission.
Enforcement and Penalties for VEVRAA
VEVRAA Regulations are enforced by the Office of Federal Contract Compliance Programs (OFCCP).
From the Department of Labor: “OFCCP investigates for violations of the Act either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts succeed, the contractor will enter into a binding conciliation agreement with OFCCP that includes corrective action the contractor will take, and may also include the submission of follow-up reports from the contractor, for a fixed period of time, to assure compliance. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the matter will be referred to an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The DOL’s Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ’s decision, it may appeal the decision to the Board.
If the Board finds that the contractor or subcontractor has violated VEVRAA, it may order the contractor or subcontractor to provide appropriate relief, which may include:
» Restoration of back pay;
» Restoration of employment status; and
» Restoration of benefits for the victim(s) of discrimination
» Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, or debarment.” Sourced from the DOL
There are no related state or local laws to VEVRAA. VEVRAA and VETS 4212