Articles Posted in Veterans

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Yarelyn Mena

Employers are often hostile to employees who must leave their job for extended periods of time, sometimes even terminating employees while they are on leave or upon their return to work. Such conduct, if permissible, would significantly impact military personnel, as members of the Armed Forces—particularly members of the Active Reserve and of the National Guard— are frequently required to leave their civilian jobs for service. To assure service members that their jobs will be secure, in 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA). The USERRA prohibits discrimination against service members in all employment decisions and requires employers to reemploy service members without losing their seniority.

As Elaine Chao, former Secretary of Labor explains:

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On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) established final rules defining Section 503 of the Rehabilitation Act of 1973 (“RA”) and the Jobs for Veterans Act of 2002, which amended the Vietnam Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). The RA and VEVRAA prohibit employers from discriminating against veterans and disabled persons and require federal contractors to pursue affirmative steps to hire individuals belonging to these categories. The final rules, codified at 41 C.F.R. §§60-300 and 60-741, went into effect on March 24, 2014 and establish affirmative action and non-discrimination requirements for government contractors and subcontractors. Employers are expected to take necessary steps within the next six months to comply with their new obligations.

The new obligations established by the DOL include non-binding hiring benchmarks for veterans and disabled persons. Federal contractors are now required to take necessary steps to meet a benchmark of 7% in hiring individuals with disabilities, and to set an annual goal for hiring veterans that matches the national percentage of veterans in the labor force, which is currently at 8%, or calculate its veteran benchmark according to state-specific data published by he OFCCP and the employer’s own experience with application, hiring and recruiting. Federal contractors with 100 or fewer employees may be in compliance with these new rules if they meet the benchmark across their entire workforce instead of each job group. However, an employer may not be penalized solely based on their failure to meet these benchmarks or if they have a legitimate reason for not being able to meet these requirements. For instance, employers located in areas with a very low veteran population and contractors who need specialized type of training that is not available in the veteran community may be able to justify lower affirmative action goals. Employers that cannot meet the benchmarks established by these new rules are required to maintain a three-year record of the reasons for setting lower goals.

Aside from these hiring benchmarks, the new rules require federal contractors and subcontractors to invite individuals to self-identify as veterans or disabled during the application process, the offer period and post-hiring period, during the first year of employment and at least once every five years. Contractors must use specific language while inviting individuals to identify themselves as disabled, and they may follow the DOL’s recommended language for identification of veterans. Additionally, contractors must regularly inform employees that they may update their disability status at any time. Furthermore, these employers must keep record of this information, maintain these disclosures confidential and provide records to the OFCCP upon request.

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The Department of Labor (“DOL”) recently issued a Final Rule amending portions of the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act of 1973. The Rule creates new obligations for certain employers in relation to affirmative action and nondiscrimination of veterans and disabled individuals. It is designed to provide relief to these employees, who often face difficulties in finding a job as a result of their status. The Rule establishes requirements aiming to increase the number of workers hired by federal contractors who fall under these categories.

Pursuant to the new changes, employers and their subcontractors engaged in employment contracts with the federal government in excess of $10,000 must take affirmative steps to hire, employ and provide equal employment opportunities to veterans and disabled individuals. Employers will have the obligation to record their efforts and results in an Affirmative Action Plan (AAP), which may be reviewed and analyzed by the DOL’s Office of Federal Contract Compliance Programs (OFCCP). This office has established a nationwide employment benchmark of seven percent (7%) for qualified disabled individuals and eight percent (8%) for veterans for qualifying employers.

Furthermore, employers must conduct an annual utilization analysis ensuring that these benchmarks are met, and identifying problem areas to establish specific programs tackling any issues. Contractors must create and maintain a record of quantitative comparisons for a period of three-years, reflecting the number of disabled individuals and veterans who apply for jobs and are employed by the con. To keep track of these figures, contractors must also encourage applicants to identify themselves as disabled individuals or veterans while applying for the jobs and after accepting employment offers. Additionally, employers must invite these employees to self-identify every five years, according to the language specified on the OFCCP website. Moreover, the Final Rule requires contractors to allow review of documents and records by the OFCCP per request, and maintain the Office informed of all formats in which it maintains records. Employers subject to the VEVRAA will also be under the oversight of the DOL’s Veterans’ Employment and Training Service (VETS).

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