By Mitchell Chamberlin
The rescission of Executive Order 11246, along with shifts in focus and significant changes at the Office of Federal Contract Compliance Programs (OFCCP) has led to a period of confusion for federal contractors.
Many requirements, such as creating affirmative action programs for minorities and women, have gone away. However, Executive Order 11246 was only one of three major pieces that make up affirmative action requirements for federal contractors. And unlike Executive Order 11246, the laws protecting individuals with disabilities, Section 503 of the Rehabilitation Act of 1973, and certain types of veterans, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, were passed by Congress and cannot be undone via an executive order.
What types of requirements remain for federal contractors?
Contractors that meet jurisdictional thresholds must still create written affirmative action programs for individuals with disabilities and protected veterans that include narratives and certain analytics. They must engage in targeted outreach when they have open positions, and reasonable accommodations must be made in certain situations for individuals with disabilities and disabled veterans.
However, one of the most robust requirements for covered federal contractors is the requirement to list open positions with state-operated employment offices referred to in the regulations as employment service delivery systems (ESDS), often called “state job banks." This requirement is meant to allow veterans to apply to open positions as early as possible in partnership with veteran-specific resources like local veteran employment representatives (LVERS), as well as to allow states to send priority veteran referrals to contractors.
Covered Employers
When passed in 1974, VEVRAA required any employer with a single supply and service contract or subcontract of $100,000 or more to comply with various affirmative action obligations, including Mandatory Job Listings. However, since 2004, the contract value threshold has been reviewed every 5 years by the Federal Acquisition Council (FAR) to determine if the threshold should be adjusted for inflation. The current threshold to adhere to mandatory job listing requirements for federal contractors is a single contract of $150,000 or more. It is important to note that there is no minimum employee count for this requirement.
Mandatory Job Listing Requirements
Federal contractors who meet this minimum contract threshold must list open positions with the appropriate ESDS concurrently with the use of any other type of recruitment source, including company career pages. Employers crossing the contract threshold for the first time must list all open positions that exist at the time of the execution of the contract. Covered contractors are required to post these open positions in a “…manner and format permitted by the appropriate ESDS which will allow the system to provide priority referral” of protected veterans. Typically, state ESDS websites have a portal in which employers can register and post open positions, though some states offer additional methods such as RSS feeds.
Covered contractors are required to list most open positions with the relevant ESDS. This includes openings for positions that are located where no work on the relevant contract is performed and for positions that do not do work pursuant to the completion of the contract. However, there are some exceptions to the posting requirement, including:
- Executive and senior management roles
- Positions filled internally without external consideration, which include jobs filled solely from recall lists
- Positions lasting three days or less
Openings must be listed with the ESDS that correspond with the company location where the work is set to occur. For example, a position that is open in a company’s satellite office in San Diego should be listed with CalJobs, California’s state job bank. Remote positions should be listed where the company headquarters is located, or the location where the employee who fills the role will report.
Notifications to Employment Service Delivery Systems
When an employer becomes a covered contractor or opens a new location, it must notify the ESDS office in that state. In this notification, the contractor must include the following information:
- The organization’s status as a federal contractor
- That the organization is requesting priority referrals of veterans from the state
- The name and location of each hiring location in the state and the contact information for the organization’s hiring official at each location
- Information regarding whether the contractor uses an external third party or job search organization to assist in its hiring
Covered contractors must continue to update the relevant ESDS whenever changes are made to hiring locations for as long it has an eligible contract (i.e., a contract of $150,000 or more).
Record Keeping Requirements
Covered contractors with fewer than 150 employees must retain documentation of job postings for one year. For those with 150 or more employees, documentation of postings must be retained for two years. While the regulations do not specify what types of documentation should be kept, organizations should consider retaining the following in case of compliance reviews or other requests by the Department of Labor:
- Screenshots of postings on ESDS sites
- List of unique identifiers of individual posts on ESDS sites
- Information on when open positions are posted and removed from ESDS sites
- Information regarding any failures to post open positions to ESDS sites
Looking Ahead
As mentioned previously, the requirement for covered federal contractors to list open positions with the relevant ESDS and other affirmative action requirements for protected veterans are statutory in nature and are unlikely to go away any time soon. While a great many things regarding affirmative action requirements remain uncertain, it is clear that federal contractors will continue to be required by law to comply with this requirement for the foreseeable future.
If your organization is required to post open positions with state employment service delivery systems pursuant to VEVRAA, DCI is here to help. More information can be found on our Mandatory Job Listing page.
