Two DOL agencies have modified some government contractor obligations in light of the turmoil resulting from recent hurricanes. First, federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely VETS-4212 Report or failure to comply with federal regulations, an announcement the DOL’s Veterans’ Employment and Training Service (VETS) webpage for VETS-4212 Federal Contractor Reporting states. The announcement clarifies that it applies to all federal contractors. Second, in light of “the special circumstances in the national interest” presented by the destruction caused by recent hurricanes, OFCCP Acting Director/Deputy Director Thomas M. Dowd has granted, in regard to Hurricanes Irma and Maria, additional limited exemptions and waivers relating to the requirements to develop written affirmative action programs (AAPs) under the laws administered by the OFCCP on top of the one he issued on August 31 as to Hurricane Harvey.
VETS-4212 Reporting. The VETS-4212 reporting cycle for 2017 began as usual on August 1. The filing deadline technically remains September 30 per VETS regulations at 41 CFR Section 61-300.10(c); however, as the announcement indicates, the agency, in order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, is using its discretionary authority to allow late reporting by November 15.
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), 38 USC Section 4212(d), requires federal contractors and subcontractors subject to the Act’s affirmative action provisions in 38 USC Section 4212(a) to track and report annually to the Secretary of Labor the number of employees and new hires that are covered veterans, by job category and hiring location, who belong to the specified categories of veterans protected under the statute. Under the most recent amendments to the statute, those categories are: (1) disabled veterans; (2) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; (3) veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209); and (4) recently separated veterans (veterans within 36 months from discharge or release from active duty). The reporting form for this requirement is administered by VETS, and generally, the reporting cycle begins annually on or around August 1 and ends September 30. The coverage threshold for contracts entered into on or after October 1, 2015 is $150,000; for contracts entered into prior to October 1, 2015, the coverage threshold is $100,000.
Reporting period. To determine the “reporting period” for the purposes of completing the VETS-4212 Reports, the contractor must first select a date in the current year between July 1 and August 31 that represents the end of a payroll period. The 12-month period preceding the selected payroll period ending date is the 12-month reporting period. Item 14 of the DOL’s updated FAQ regarding the report clarifies that “[a] contractor that has approval from the [EEOC] to use December 31 as the ending date for the EEO-1 Report may also use December 31 as the ending date for the payroll period selected for the VETS-4212 Reports” (see also, VETS regulations at 41 CFR § 61-300(d)(2)). This will allow contractors to keep in-line with current EEO-1 Reporting requirements, which, pursuant to a September 15, 2017 EEOC notice in the Federal Register (82 FR 43362-43363), provide that employers should count employees during a “workforce snapshot period” between October 1 and December 31, 2017 for the 2017 EEO-1 Report due by March 31, 2018.
Temporary waiver of written AAP requirements. In light of “the special circumstances in the national interest” presented by the destruction caused by recent hurricanes, OFCCP Acting Director/Deputy Director Thomas M. Dowd has granted, in regard to Hurricanes Irma and Maria, additional limited exemptions and waivers relating to the requirements to develop written affirmative action programs (AAPs) under the laws administered by the OFCCP on top of the one he issued on August 31 as to Hurricane Harvey.
These exemptions and waivers are detailed in three memoranda, posted on the OFCCP’s website, which are addressed to all federal government contracting agencies. Federal contractors will continue to be subject to the nondiscrimination requirements under the three laws that the OFCCP enforces—Executive Order 11246, as amended, Section 503 of the Rehabilitation Act, as amended, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA).
The memoranda also provide three equal employment opportunity clauses that federal contracting agencies may utilize in covered contracts entered into to provide hurricane relief. Each of the exemptions and waivers are for a period of three months from the date of the corresponding memorandum, subject to an extension “should special interests in the national interest so require,” and pertain only to the three programs administered by OFCCP.
Notwithstanding these exemptions and waivers, the following regulatory requirements will continue: (1) posting of the “Equal Opportunity is the Law” notice under all three laws; (2) record keeping and record retention under all three laws; and (3) employment listings with appropriate employment service delivery system as required under VEVRAA.
The Hurricane Harvey memo, originally issued on August 31 and revised on September 1, 2017, provides that exemption and waiver will run from September 1 to December 1, 2017.
The Hurricane Irma memo, issued on September 7, states that exemption and waiver will run from September 8 to December 8, 2017.
The Hurricane Maria memo, issued on September 20, provides that exemption and waiver will run from September 21 to December 21, 2017.
Corresponding FAQs regarding each of the three exemptions and waivers are posted on the OFCCP website.
For questions or additional clarification on a specific contract, contractors are instructed to contact Marika Litras, Director of Enforcement at (202) 693-0101 or litras.marika@dol.gov.
In September 2005, then OFCCP Director Charles James, Sr. issued a similar waiver and exemption in light of Hurricane Katrina.
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