Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The DOL’s Veterans’ Employment and Training Service (VETS) has published a Notice of Proposed Rulemaking to rescind the filing of the annual VETS-100 form and revise the filing of the VETS-100A reports. The proposal would make the following six changes:
1) Rescind 41 CFR Part 61-250; 2) Rescind the VETS-100 form; 3) Re-label the VETS-100A form the VETS-4212 Report; 4) Update the definitions used in the VETS-4212 Report; 5) Eliminate the need for contractors to collect information on each of the four protected veteran sub-categories; and 6) Remove the requirement to collect this data from the regulations themselves so that future edits will not have to go through notice and comment.
The first four changes are not controversial.
The old VETS-100 report arose out of the regulations that implemented the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA). The current VETS-100A report arises out of amendments to VEVRAA made in 2002, and it is the form used by every government contractor with a contract of $100,000 or more that was entered into or modified since December 1, 2003. As of 2014, there is no evidence that any company continues to have an old, unmodified contract covered by the prior regulations and thus no need for the old VETS-100 form. Accordingly, the VETS is proposing to (1) rescind the regulations (41 CFR Part 61-250) governing the old VETS-100 form, and (2) rescind the form itself (VETS-100).
Third, the VETS proposes to rename the current VETS-100A form the “VETS-4212 Report.”
Fourth, to conform the VETS-4212 Report to the OFCCP’s new final regulations that become effective on March 24, 2014, the definition section of the VETS-4212 Report will make some changes. Specifically, the old catch-all term of “covered veteran” will be replaced with the new catch-all category, “protected veteran.” In addition, the old sub-category definition of “protected veteran” will be replaced with “active duty wartime or campaign badge veteran.”
The final two changes could be somewhat controversial.
The most burdensome proposal is the manner in which protected veterans will be tallied in the 2014 and 2015 VETS-4212 Reports. Under the current VETS-100A form, government contractors are collecting data at the time of hire on each possible sub-category of veterans: recently separated veterans, disabled veterans, (the old) protected veterans, and armed forces service medal veterans.
Because the OFCCP modified its definitions of those sub-categories, and its regulations take effect March 24, 2014, some government contractors with affirmative action plan cycles that begin in April 2014 already are taking steps to modify their self-identification forms to update them using the OFCCP’s new sub-categories. They are changing their current self-id forms in two respects: (1) dropping the old catch-all term of covered veteran and replacing it with the new catch-all term of “protected veteran;” and (2) dropping the old “protected” veteran sub-category and replacing it with the new sub-category of “active duty wartime or campaign badge veteran.”
Once the VETS proposed regulatory changes become final, however, the VETS agency does not want employers to collect data on each individual sub-category any longer. Some veterans fall into multiple sub-categories, and the VETS is concerned that the double-counting issue will result in an inaccurate count of new protected veteran hires. In addition, under another law passed in 2012, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Pub. L. 122-154), the VETS is required to publicly disclose on the agency’s website the information that contractors report on the VETS-100A report. In their current format of reporting data on each sub-category of veterans, the reports disclose the number of disabled veteran new hires, and the VETS is concerned that it may be possible for others to discern the identity of disabled veteran new hires.
Thus, if the proposed regulations are published in their final form some time in 2014, they will become effective a year later, possibly in 2015, and therefore all the self-identification forms being modified now in 2014 will have to be modified again in 2015 to collect information only on the catch-all category of “protected veteran,” and not for each individual sub-category.1
In the long run, this information collection will be good for contractors. The self-identification forms will be significantly streamlined, and it will also enable contractors to maintain less data per new hire. In the short-term, however, it will cause some employers to have to change their self-identification forms twice within a year’s time.
Finally, the VETS proposes to remove the filing requirement from the regulations themselves so that future modifications to the form would not be subject to notice and comment rulemaking. According to the VETS, this change would make it easier for the agency to make future revisions to the annual report, and the public still would have an opportunity to comment on subsequent changes to the annual report under the Paperwork Reduction Act clearance procedures.
The proposal also reproduces language from the VETS’s current rule requiring federal contractors and subcontractors to include language in their covered subcontracts ($100,000 or more) obligating subcontractors to submit reports and emphasizing that this required clause is “considered as an addition to the equal opportunity clause required by 41 CFR 60-300.5.” Although this language does not represent a change in the law, it does serve as a good reminder of an obligation that tends to get overlooked.
1 In the new rules regarding affirmative action for veterans that the OFCCP published in September 2013, the agency made it clear that it would have no objections to such a simplification of the self-identification form. In its preamble to the new rules, the OFCCP explained a revision to its own requirements regarding self-identification as “clarify[ing] that the contractor’s . . . obligation to ask applicants to identify their specific protected veteran classification(s) is contingent upon their having an obligation to report that information on the VETS–100A, or other future form, pursuant to 41 CFR part 61–300. 78 Fed. Reg. 58630 (Sept. 24, 2013).”