LAW REVIEW 1137
Federal Contractor Affirmative Action
for Hiring Veterans
By Captain Samuel F. Wright, JAGC, USN
1.8—Relationship Between USERRA and other
On April 26, 2011, the Office
of Federal Contract Compliance Programs (OFCCP), in the United States
Department of Labor (DOL), published in the Federal
Register a proposed new rule intended to strengthen the affirmative action
requirements for federal contractors and subcontractors for employing
veterans. The deadline for comments on
the proposed rule is June 25, 2011. To
submit comments, visit the federal e-rulemaking portal at http://www.regulations.gov. After the
comment period, OFCCP will consider the submitted comments, perhaps make some
adjustments in the proposed rule, and then publish the final rule in the Federal Register and the Code of Federal Regulations.
Under section 4212 of title
38, United States Code (38 U.S.C. 4212), federal contractors and subcontractors
are required to take affirmative action to employ and advance in employment
special disabled veterans (generally 30% or more disabled), Vietnam era
veterans, and other veterans who served on active duty during a war or in a
campaign or expedition for which a campaign badge has been authorized. OFCCP is responsible for enforcing section
The proposed rule clarifies
mandatory job listing requirements, under which a contractor must provide job
vacancy and contact information for each of its locations to an appropriate
employment service delivery system. The
rule proposes requiring contractors to engage in at least three specified types
of outreach and recruitment efforts each year.
In addition, the proposed rule would require that all applicants be
invited to self-identify as “protected veteran” before they are offered a
job. Increasing data collection on job
referrals, applicants and hires, and requiring contractors to establish hiring
benchmarks to assist in measuring the effectiveness of their affirmative action
efforts also are proposed.
Many of the young men and
women returning from military service in Iraq and Afghanistan are having
difficulty in finding suitable employment, and this is particularly a problem
for those returning with serious disabilities incurred in service. Improved enforcement of 38 U.S.C. 4212 will
likely be most helpful in addressing this problem.
Please do not conflate 38
U.S.C. 4212 with the Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301-4335. USERRA
applies to private employers regardless of size, and without regard to whether
those employers do business with the Federal Government. USERRA forbids employer discrimination
against those who serve or have served in our nation’s uniformed services, including
the Reserve and National Guard, but USERRA does not require employers to take
affirmative action for veterans. Under
USERRA, a person who leaves a civilian job for voluntary or involuntary service
in the uniformed services is entitled to reemployment with the pre-service
employer, after release from the period of service, provided the individual
meets the USERRA eligibility criteria.
DOL’s Veterans’ Employment
and Training Service (VETS) is responsible for enforcing USERRA, while OFCCP is
responsible for enforcing section 4212.
The two DOL agencies work closely together to protect the rights of
veterans. It is entirely possible that a
single veteran could simultaneously have rights under section 4212 and
OFCCP also has authority under Executive Order 11246 and section 503 of the
Rehabilitation Act of 1973. Those who do
business with the Federal Government, as contractors or subcontractors, are
held to the fair and reasonable standard that they not discriminate in
employment on the basis of gender, race, color, religion, national origin,
disability, or status as a protected veteran.
For general information, call OFCCP’s toll-free helpline at 800-397-6251
or visit http://www.dol.gov/ofccp.
USERRA also applies to federal, state and local governments, as employers.
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