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If you are a federal contractor, you may be feeling a bit picked on by the Department of Labor of late. It seems as though every regulatory change increases the burden for federal contractors. But not so with the Final Rule issued yesterday by the DOL's Veterans' Employment and Training Service (VETS) revising the reporting requirements under the Vietnam Era Veterans' Readjustment Assistance Act. These changes will actually provide some relief by simplifying the data that must be reported to VETS.
First, the Final Rule rescinds the reporting requirements applicable to contracts entered into before December 1, 2003, for a simple reason -- they are obsolete. This will be the final year for those contractors that still file the VETS-100 Report.
The second, and most significant change, will allow contractors to report the number of employees and new hires who are protected veterans in the aggregate, in lieu of breaking them down into their specific categories.
The form that will replace the VETS-100 and VETS-100A is called the VETS-4212 Report. (The part of VEVRAA that requires annual reporting on protected veterans, as well as affirmative action, is Section 4212.) As it has done in other contexts, the DOL did not include the VETS-4212 Report form in the Final Rule, stating that by excluding the form itself, it will be easier for the agency to make changes to the form in the future because such changes will not be subject to formal notice and comment rulemaking.
What will the VETS-4212 provide that the previous reports did not?
The new form is designed to protect the privacy of employees who have identified as disabled veterans. The existing VETS-100 and VETS-100A Reports require contractors to disclose the number of protected veterans at a hiring location by specific veteran category within each job category. In light of the reporting requirements under Section 708 of the Camp Lejeune Families Act, which amended the VEVRAA to require VETS to publicly disclose the information reported in the VETS-100 and VETS-100A Reports, submitting numbers of protected veterans in the aggregate will help protect the privacy of disabled veterans. Information collected from the VETS-100 and the VETS-100A reports is currently available to the public on the Data.gov website.
Because contractors will no longer be required to break out the separate veterans categories, the new reporting requirements eliminate the scenario that arises under the current reporting obligations -- where protected veterans may be counted multiple times if they meet the definition for more than one category of protected veteran. In light of OFCCP's Final Rule modifying the affirmative action requirements for federal contractors under VEVRAA, which went into effect on March 24, 2014, VETS says it believes allowing contractors to report the total number of protected veterans employed and hired will be "a more useful tool for employers to access the effectiveness of their applicable affirmative action programs."
Other Items Addressed by the Final Rule
Definitions:
For purposes of consistency, VETS has replaced the term "covered veteran" with the term "protected veteran." "Protected Veteran" is defined as a veteran who may be classified as a "disabled veteran," "recently separated veteran," "activity duty wartime or campaign badge veteran," or an "Armed Forces service medal veteran." "Active duty wartime or campaign badge veteran" will replace the term "other protected veteran" and is defined as "a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense." This change is consistent with the definitions contained in the Final Rule issued by the OFCCP on September 23, 2013, addressing affirmative action requirements under VEVRAA.
Electronic Filing:
Contractors with fewer than 10 hiring locations can file electronically or submit paper reports. Contractors with 10 or more hiring locations will be required to file their VETS-4212 reports electronically. This can be accomplished by using VETS' web-based filing system or by using an "alternate electronic format" such as email, compact disc, or other electronic storage media.
Contract Clause:
The text of the reporting requirements clause to be included in federal contracts and subcontracts has been modified to reflect the new requirement to report total numbers of employees and new hires who are protected veterans, as well as incorporate the definitions described above.
Effective Date for Implementation:
Contractors will begin filing the VETS-4212 with the annual report filed in 2015. Contractors must still file the VETS-100 and/or VETS-100A by September 30 of this year. In the meantime, steps should be taken to review data collection systems to ensure data is being collected and stored in a manner consistent with the new reporting requirements.
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.
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