OFCCP recently released a series of new FAQs relating to the revised 503 and VEVRAA regulations. This blog will address the FAQ addressing the definition of “hires” to be used when assessing compliance with the hiring benchmark under VEVRAA. In two previous posts (here and here), we attempted to understand this “hiring benchmark.” In both instances, despite contradictory statements across the regulations, the preamble, the FAQs and the responses given to questions during the OFCCP webinar on the topic, DCI interpreted the benchmark as a tool to be used as a yardstick, assisting in assessing the appropriateness and effectiveness of outreach and recruitment efforts. Unfortunately, based on the information in this FAQ from OFCCP, the “hiring benchmark” is going to be useless as a tool for assessing outreach and recruitment.
Before we delve into what has gone wrong with this FAQ, let us take a step back and revisit the general purpose of the hiring benchmark, as described in the preamble for VEVRAA: “The primary intent of the benchmark proposal was to provide the contractor a yardstick that could be used to measure progress in employing protected veterans.” This sentiment was reiterated by Keir Bickerstaffe, Senior Attorney with the Office of the Solicitor during the OFCCP webinar when he said, “…look at the hiring data you’ve accumulated for the year. If the percentage of protected veterans you’ve hired is equal to or above your benchmark, then you have met your benchmark…want contractors to really look at outreach and recruitment…and tailor accordingly going forward.” Despite the other confusing language discussed in our previous blogs, these statements are in line with what we would expect from an administration that is actively seeking to encourage public and private sectors to hire veterans, especially as we draw down from two wars.
So what is the problem? Read the new FAQ below:
When applying the hiring benchmark, should contractors use the same definition of "hires" that is used for purposes of the data collection analysis required by 60-300.44(k)?
Yes. Since neither the new regulations, nor its preamble, specify a different definition of "hires" for the VEVRAA hiring benchmark, contractors should use the definition of hires that is applicable to the data collection analysis obligation. That definition encompasses those applicants (both internal and external to the contractor) who are hired through a competitive process, including promotions. This will ensure consistency in the interpretations of these key provisions of the new regulations.
The problem is that OFCCP is including internal hires and promotions in the definition of “hires” and expecting to be able to draw meaningful conclusions about the effectiveness of outreach and recruitment efforts. Let’s walk through an example with a fictitious Contractor, Vets&Me and their fictitious Washington, DC establishment. Over the course of the year, Vets&Me hired 20 external applicants, none of whom were protected veterans. In addition, Vets&Me had 20 competitive internal openings and promotional opportunities, and six of those opportunities were filled by protected veterans. Has Vets&Me met the 7.2% hiring benchmark?
|
Protected Veteran Applicants Hired |
Total Applicants Hired |
Percentage Protected Veterans Hired |
|
| External Applicants |
0 |
20 |
0% |
| Internal Applicants |
6 |
20 |
30% |
| Total Applicants |
6 |
40 |
15% |
As you can see in the table above, when using this definition of “hires,” a contractor can meet the “hiring benchmark” through internal movement of already employed protected veterans, without hiring a single external, unemployed veteran. In addition, if Vets&Me looks at the hiring benchmark results for assessing outreach and recruitment, the 15% result would indicate that these activities were effective – even though they resulted in 0 external hires.
By Kristen Pryor, M.S., Associate Consultant, and David Cohen, President, DCI Consulting Group
