EQUAL EMPLOYMENT ADVISORY COUNCIL

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1 EQUAL EMPLOYMENT ADVISORY COUNCIL SUITE FIFTEENTH STREET, NW WASHINGTON, DC TEL 202/ FAX 202/ VIA AND REGULAR MAIL Norman G. Lance Chief, Division of Investigations and Compliance Veterans Employment and Training Service U.S. Department of Labor Room S Constitution Ave., N.W. Washington, D.C Re: Federal Contractor Program Comments Notice of Preclearance Consultation Program 41 C.F.R. Chapter 61, Part , Annual Report from Federal Contractors (67 Fed. Reg et seq.) Dear Mr. Lance: The Equal Employment Advisory Council (EEAC) welcomes the opportunity to file these comments on the Veterans Employment and Training Service s (DOL-VETS) Federal Contractor Veterans Employment Report VETS-100 (OMB Number ). Our letter responds to the Department of Labor s (DOL) invitation to participate in the Paperwork Reduction Act (PRA) preclearance consultation program for this DOL-VETS information collection, notice of which was published in the Federal Register on November 12, Fed. Reg Specifically, the agency asked for comments on (1) the practical utility of the information collection, (2) the accuracy of the agency s estimate of the burden to complete the information collection, (3) ways to enhance the quality, utility, and clarity of the information collection, and (4) how to minimize the burden on respondents of the information collection. We appreciate DOL providing this opportunity for interested parties to express their views on the current VETS-100 form and for acknowledging that some changes to the present system could improve its effectiveness for the agency and covered contractors alike. Indeed, this preclearance consultation process presents DOL with a valuable opportunity to make the overall veterans reporting requirements program both more effective in accomplishing its important objectives and, at the same time, less burdensome for covered employers.

2 Page 2 Statement of Interest EEAC is a national nonprofit association of major employers formed in 1976 to promote sound approaches to the elimination of employment discrimination. Its members include over 340 of the nation s largest private sector corporations that, collectively, employ more than 20 million workers in the United States alone. A substantial majority of EEAC s member companies are federal contractors subject to the VETS-100 reporting requirements, all of which are fully committed to meeting their compliance obligations with respect to protected veterans. Statutory Basis For Federal Contractors Veterans Reporting Obligations Since 1982, the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) has mandated that all covered federal contracts include a provision in which the contractor pledges to take affirmative action to employ and advance in employment covered veterans without discrimination based upon their disability or veterans status in all employment practices, and required covered contractors and subcontractors to file annually with DOL a VETS-100 form listing the number of covered veterans in their workforces by EEO-1 job category and hiring location. During the last five years, Congress has changed federal contractors veterans reporting obligations under VEVRAA three times. The first change occurred in 1998 when Congress passed the Veterans Employment Opportunities Act (VEOA) amending VEVRAA to (1) expand the class of protected veterans to include any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized; (2) require contractors to include their maximum number and minimum number of employees during a specific period of time on the VETS-100 report; (3) increase VEVRAA s contract coverage threshold from $10,000 to $25,000; and (4) prohibit the federal government from contracting with or paying contractors who fail to file the VETS-100 report. Final implementing regulations that added the VEOA veterans reporting requirements to the VETS-100 form took effect on November 13, These regulations made reporting other protected veterans and the minimum and maximum number of employees mandatory for the 2002 reporting cycle. The second change in contractors veterans reporting obligations occurred in 2000 when the Veterans Benefit and Health Care Improvement Act of 2000 (VBHCIA) added recently separated veterans as an additional reporting category. That law defined the new category as any veteran during the one year period beginning on the date of such veteran s discharge or release from active duty. DOL-VETS made reporting of the new category optional for the 2002 reporting cycle and has not yet issued VBHCIA implementing regulations. Congress changed the veterans reporting requirements for federal contractors a third time last year. The 2002 Jobs for Veterans Act (JVA) revised VEVRAA s definition of covered veteran to delete the term veterans of the Vietnam era, add a new category of veterans who

3 Page 3 receive an Armed Forces Service Medal, and expand the category of recently separated veterans to include anyone discharged within the last three years. In addition, the JVA added a new VETS-100 requirement to report the number of all current employees by job category and hiring location, and raised the threshold of VEVRAA contract coverage from $25,000 to $100,000. These changes are scheduled to take effect on December 1, 2003 and will require yet further modifications to the VETS-100 form and regulations. Reporting Newly Separated Veterans Should Remain Optional for 2003 Reporting Cycle EEAC respectfully requests that reporting Newly Separated Veterans remain optional for the 2003 reporting cycle. The 2002 VETS-100 report gave contractors the option, for the first time, of reporting the number of new hires who were newly separated veterans. The VETS-100 form defined members of this group as veterans who served on active duty during the one-year period beginning on their date of discharge or release from duty. According to a notation on the 2002 VETS-100 form, this category is expected to be required for the 2003 reporting cycle. In anticipation of this requirement, many federal contractors already have made changes to their tracking and reporting systems to monitor the number of new hires who are within one year of their separation date. With the JVA-expanded definition of newly separated veterans to include anyone within three years of their discharge date, the efforts these contractors already have made to comply with the VBHCIA will be of little practical use. If reporting new hires who are newly separated veterans is made mandatory for the 2003 reporting cycle, covered contractors will face an unwelcome choice. They will have to either ask new hires if they are newly separated veterans under the old one-year definition, knowing that the data will not be used, or start using the new three-year definition, which will not comply with the instructions on the VETS-100 form. Moreover, which method contractors use may not be clear from their VETS-100 submissions. In any event, the agency will not be able to rely on the data as an accurate account of the number of new hires who are newly separated veterans. Therefore, EEAC respectfully requests that the reporting requirement concerning newly separated veterans continue to be optional for at least the 2003 reporting cycle until regulations implementing the JVA-mandated changes have been issued. At that time, it will be clear that the three-year definition will be used. JVA-Mandated Changes to VETS-100 Should Be Deferred Pending Issuance of Implementing Regulations The JVA s requirement to delete Vietnam era veterans, add veterans who receive an Armed Forces Service Medal, and expand recently separated veterans comes on the heels of the significant time and resources contractors already have devoted to restructuring their computer and administrative systems to track the new class of covered veterans included in the VEOA, changes on which they had two years to work while awaiting the issuance of

4 Page 4 implementing regulations. Many contractors do not have the extra human or monetary resources to address this issue again on such short notice, particularly when budgets have already been set and resources allocated for the current and upcoming fiscal years. Moreover, the burden for them to comply with the reporting requirements increases each time the veterans definitions change or new categories of covered veterans are added to or deleted from the VETS-100 form. The frequency of the changes to federal contractors veterans reporting obligations over the past few years has put contractors in the difficult position of making some changes to their computer and administrative systems to track the new classes of covered veterans, all the while anticipating that future changes will be necessary as well. Each modification requires companies to train their staff on the changes, develop and print new forms to give new hires and current employees the opportunity to self-identify as covered veterans, resurvey their entire employee population, and update electronic personnel records, often manually. In addition, even after a company spends the time and resources to gather and store this data, it still must purchase and implement expensive system upgrades to track the data to make their VETS-100 reports compliant. Companies that rely on outside vendors to supply their reporting system must wait for the vendor to make these revisions, retrieve the forms used to gather the new data, and enter the results manually into their system. This is a time-consuming and costly process. Therefore, even if regulations implementing JVA s changes are issued this year in time to apply to the 2004 reporting cycle, requiring federal contractors to implement these changes immediately would significantly increase the burden on them. EEAC respectfully requests that contractors be given at least one year from the date regulations implementing the JVA-mandated changes become final to comply with them. In other words, if the regulations are issued this year, they should not go into effect until the 2005 reporting cycle. Eliminating the Various Categories of Covered Veterans and Simply Tracking All Veterans Would Allow Contractors To Focus On Affirmative Action Efforts A number of federal contractors have told EEAC that eliminating the various categories of covered veterans in favor of simply tracking and reporting on all veterans would increase their ability to take affirmative action on behalf of all veterans. By reducing the staff time and monetary resources that contractors now expend to keep track of and report in the multiple veterans categories for the VETS-100 report, particularly given how often the requirements change, contractors instead could focus on enhancing their affirmative action efforts to all veterans. Moreover, many companies typically provide new hires with a package of forms to complete income tax forms, health insurance applications, and emergency contact information. Often included in these packages are forms that ask new hires whether they want to voluntarily self-identify as a covered veteran in accordance with VEVRAA. One member

5 Page 5 company speculated to EEAC that the multiple choices of veterans categories on the selfidentification form and lengthy definition of each category dissuade individuals from identifying themselves as being covered veterans. Instead, asking new hires simply whether they are veterans may yield a higher response rate, which may be more useful to both the contractor and the federal government in tracking veterans employment. The VETS-100 Regulations Should Be Amended to Clarify That Contractors May Invite Current Employees to Self-Identify As Covered Veterans Without Violating the ADA The current VETS-100 regulations do not resolve the question of whether contractors are required or permitted periodically to invite current employees to self-identify as covered veterans, including special disabled veterans. This question arises due to a possible conflict with the Americans with Disabilities Act (ADA), which prohibits an employer from mak[ing] inquiries of an employee as to whether such employee is an individual with a disability... unless such... inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C (d)(4)(A). According to the Equal Employment Opportunity Commission (EEOC), an employer may invite current employees to self-identify when the employer is required to do so to comply with affirmative action laws or voluntarily uses the information to benefit individuals with disabilities. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act (ADA) (July 26, 2000) at Q. 23 (available at DOL and EEOC officials have said publicly that federal contractors subject to affirmative action requirements may resurvey current employees as to their status as special disabled veterans (and individuals with disabilities) without violating the ADA s prohibition against disability-related inquiries. However, neither agency has yet issued formal written guidance on this specific question. Therefore, we request that the DOL-VETS clarify in writing that a contractor that voluntarily elects periodically to extend to its current workforce an invitation to self-identify as a special disabled veteran is doing so to voluntarily use the information to benefit individuals with disabilities, and thus not in violation of the ADA. Many contractors feel that having accurate data to complete the VETS-100 form is also essential to conducting an internal analysis to evaluate whether or not the contractor is satisfying VEVRAA s mandate to take affirmative action to employ and advance in employment qualified special disabled veterans. 38 U.S.C. 4212(a). Contractors Should Have the Option of Filing Electronically Completed Hard Copy VETS-100 Reports The current VETS-100 regulations require contractors that submit computer-generated output for more than ten hiring locations to submit the information in the form of an electronic file. 41 C.F.R (b). This requirement has generated considerable concern on the part of our members because their computer systems may not conform to the DOL specifications for

6 Page 6 electronic file VETS-100 submissions. Many companies have designed their electronicallygenerated VETS-100 forms to mirror DOL s hard copy format. Unfortunately, only electronic VETS-100 submissions in the electronic file format are acceptable to DOL. The obvious question is if manually completed hard copy submissions are acceptable to DOL, why are not electronically completed hard copy submissions acceptable as well? It makes no sense to require companies to incur significant reprogramming costs simply to conform to an electronic file format when the hard copy format is acceptable in a nonelectronic environment. Accordingly, we recommend that contractors be given the option to submit hard copies of computer-generated VETS-100 reports or an electronic file, until contractors and the respective government agencies gain more experience and facility with managing electronic systems and the Internet. Flexibility In The Calculation Method For Minimum and Maximum Number of Employees Needs To Be Maintained DOL-VETS issued an Interim Final Rule on December 19, 2001 that responded to concerns EEAC had raised that the new VETS-100 regulations as promulgated imposed unintended burdens on some federal contractors by mandating a method to calculate minimum and maximum employment for inclusion in the VETS-100 report (66 Fed. Reg ). This data set was one of the new requirements that the 1998 VEOA added to the VETS-100 report. In response to the agency s public request for comments, EEAC twice polled its membership and summarized the results in two comment letters to the agency. The response from our members reconfirms that federal contractors are using a variety of methods to calculate minimum and maximum employment to fulfill their VETS-100 reporting requirements, fully consistent with the intent of the VEOA. This range of methods illustrates that federal contractors need flexibility to fulfill their VETS-100 reporting obligation. Should DOL-VETS decide to issue technical guidance on how to calculate minimum and maximum employment, we believe the guidance should sanction different options for contractors to use without requiring a specific mandated method. That way, a company would not be prohibited from choosing a method of calculation that may be more consistent with its corporate structure and data systems. Conclusion EEAC members are committed to protecting and reporting on covered veterans to the full extent of the law. However, we respectfully submit that the recommendations we make herein could improve the effectiveness of the VETS-100 information collection for both the agency and covered contractors alike.

7 Page 7 We appreciate the opportunity to submit comments on federal contractors VETS-100 reporting obligations. If EEAC can be of further assistance on this matter, please do not hesitate to contact us. Sincerely, Jeffrey A. Norris President cc: Steven J. Law Chief of Staff U.S. Department of Labor Charles E. James, Sr. Deputy Assistant Secretary U.S. Department of Labor

EQUAL EMPLOYMENT ADVISORY COUNCIL

EQUAL EMPLOYMENT ADVISORY COUNCIL SUITE 400 1501 M STREET, NW WASHINGTON, DC 20005 TEL 202/629-5650 FAX 202/629-5651 VIA FACSIMILE TO (202) 693-4755 Robert M. Wilson Chief, Division of Investigation and