Constangy, Brooks & Smith

ATTENTION, FEDERAL CONTRACTORS!
NEW JOB POSTING REQUIREMENT UNDER VEVRAA
(. . . AND DON’T FORGET ABOUT THOSE EO SURVEYS)

On November 7, 2003, the President signed the new Jobs for Veterans Act (JVA), which amends the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) in a number of ways. One of the amendments resulting from the JVA provides for changes in the way federal contractors with contracts of $100,000 or more post job openings. The new language slated to go into effect on December 1, 2003, provides that a covered federal contractor "shall immediately list all of its employment openings with the appropriate employment service delivery system . . . and may also list such openings with one-stop career centers . . . or America’s Job Bank . . ." 38 U.S.C. § 4212(a)(2)(A) (emphasis added).

Since 1997, federal contractors have been able to satisfy their job listing requirements under VEVRAA by posting job vacancies on America’s Job Bank. The Job Bank is a service provided by the United States Department of Labor that publicizes job openings nationwide over the Internet.

The JVA has raised questions as to whether posting with the Job Bank will still satisfy VEVRAA requirements. By its terms, the JVA says no. However, other signals have been mixed.

The JVA clearly provides that an employer’s listing of job openings with the Job Bank will no longer satisfy the requirement that government contractors post their job openings. And the Department of Labor has announced its intention to provide a "Veterans Jobs Clearinghouse" – a website available starting December 1, 2003 – on which employers are to post job openings that will then be distributed to the appropriate local employment service. (The Clearinghouse website will be at www.jobsforveterans.org.)

But the Job Bank recently directed an e-mail communication to federal contractors stating that contractors will be in compliance after December 1 by continuing to post with the Job Bank. The Job Bank says that it will forward postings to the Clearinghouse website, which in turn will distribute them to the appropriate local employment services. The Job Bank says that its link to the Clearinghouse website will be working by the end of the month.

It is not at all clear whether the Department of Labor will sign off on the Job Bank’s proposed "link" plan. TheDOL seems to be focusing on the Clearinghouse website. Two DOL agencies will be responsible for implementing the JVA and will have ultimate responsibility for enforcing the new job listing requirements – the Office of Federal Contract Compliance Programs (OFCCP) and the Veterans Employment and Training Service. Neither was notified of the Job Bank e-mail, and neither has confirmed approval of the Job Bank plan. The final decision will be OFCCP’s.

The JVA also made changes to the categories of covered veterans for government contracts entered into on or after December 1. Accordingly, we recommend that federal contractors update the forms that they provide to employees on which the employees may self-identify as protected veterans. If you need assistance in preparing or revising this form, please contact the Constangy attorney of your choice.

AND FINALLY, as we have previously advised, OFCCP has been given the authority to continue issuing the controversial EO Survey to randomly selected contractors. The Agency has stated that it intends to send the EO Survey to 10,000 contractors in 2003 and 10,000 more in 2004. Approximately 20 percent of those contractors who receive an EO Survey can expect to be audited. Last year’s EO Surveys began arriving in mailboxes in December, so be on the lookout for yours!