EQUAL EMPLOYMENT ADVISORY COUNCIL SUITE 400 1501 M STREET, NW WASHINGTON, DC 20005 TEL 202/629-5650 FAX 202/629-5651 Via Electronic Mail to: Torrans.William@dol.gov Mr. William Torrans Office of National Programs (ONP) Veterans Employment and Training Service Room S-1316 200 Constitution Avenue, NW Washington, DC 20210 Re: Comments of the Equal Employment Advisory Council on the Veterans Employment and Training Service Annual Report From Federal Contractors Notice of Proposed Rulemaking (RIN 1293-AA20) Dear Mr. Torrans: The Equal Employment Advisory Council ( EEAC ) respectfully submits these comments on the Veterans Employment and Training Service s ( DOL-VETS ) Notice of Proposed Rulemaking ( NPRM ) pertaining to the reporting obligations of federal contractors under Section 4212 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended ( Section 4212 or VEVRAA ), notice of which was published in the Federal Register on February 24, 2014. 1 OVERVIEW EEAC commends DOL-VETS s efforts to improve the quality and utility of the information collected on protected veterans in the federal contractor workforce. Among other things, the proposed rule would significantly change the way in which federal contractors currently report on protected veterans by eliminating the requirement to indicate an individual's classification in one or more specific protected veteran categories. This along with other proposed changes will not only simplify the data collection and reporting obligations of federal contractors, but also will aid contractors in their efforts to employ and advance in employment qualified protected veterans. In addition, the proposed changes will eliminate the risk that the identity of individuals with disabilities could be discerned through the public disclosure requirements of Section 708 of the Honoring America s Veterans and Caring for Camp Lejeune Families Act of 2012. Many of the proposed changes in the NPRM are necessary to harmonize DOL-VETS s veteran reporting regulations with the newly revised veteran nondiscrimination, affirmative action, and recordkeeping obligations promulgated by the Department of Labor s Office of 1 79 Fed. Reg. 10063.
Page 2 Federal Contract Compliance Programs ( OFCCP ). Indeed, DOL-VETS s proposed rescission of its regulations at 41 C.F.R. Part 61-250 and its proposed changes to the definitions included in 41 C.F.R. 61-300.2 would promote enhanced compliance by providing federal contractors with needed efficiency, consistency, and clarity. With respect to the proposed VETS-4212 form and instructions, EEAC respectfully submits that DOL-VETS can further improve upon the form and instructions to make the reporting process even less burdensome for federal contractors while resulting in additional cost savings for both DOL-VETS and the federal contracting community. Specifically, EEAC recommends that: 1) The Final Rule and accompanying VETS-4212 form be modified to more closely align with the current reporting requirements of the Employer Information Report EEO-1, Standard Form 100 ( EEO-1 Report ), administered by the Equal Employment Opportunity Commission ( EEOC ). In particular, we recommend that: a. The job category numbers on the new VETS-4212 form mirror the same numbering system used on the EEO-1 Report; and b. The regulations be modified to allow contractors to choose a payroll period reporting date that aligns with their EEO-1 reporting date (currently any pay period from July 1 through September 30); 2) The VETS-4212 instructions be modified to clarify, consistent with VEVRAA and DOL- VETS s implementing regulations, that only certain fields on the report are mandatory; and 3) The proposed regulations be modified to state that paper forms are acceptable for contractors required to file electronically when electronic filing is not available. EEAC believes that these modest, additional changes to the federal contractor veteran reporting obligations will further reduce the compliance burden on federal contractors without having a negative impact on data integrity or utility, and potentially will increase the accuracy of the data collected. STATEMENT OF INTEREST EEAC is the nation s largest nonprofit association of major employers dedicated exclusively to the advancement of practical and effective programs to eliminate employment discrimination. Formed in 1976, EEAC s membership includes approximately 300 of the nation s largest private-sector corporations, who collectively employ more than 19 million workers in the United States alone.
Page 3 EEAC s directors and officers include many of the nation s leading experts in the field of equal employment opportunity, affirmative action, and diversity. Their combined experience gives EEAC a strong base of both knowledge and real-world experience concerning the proper interpretation and implementation of fair employment policies and practices. EEAC s members are firmly committed to the principle of equal employment opportunity. Nearly all of EEAC s member companies are federal contractors subject to the affirmative action and reporting requirements of VEVRAA. Because they are among the nation s largest federal contractors and subcontractors, our members have a significant stake and interest in ensuring that DOL- VETS s regulations efficiently and effectively accomplish their most important underlying policy objectives, which in this case is the collection and reporting of meaningful data on protected veterans in the workforce. ELIMINATION OF REPORTING By SPECIFIC PROTECTED VETERAN CATEGORY Is A SIGNIFICANT POSITIVE CHANGE The most significant change proposed by the NPRM elimination of reporting by specific protected veteran category will not only simplify federal contractors reporting obligations, but also will simplify federal contractor data collection and recordkeeping obligations, potentially improve protected veteran self-identification response rates, increase the utility of the data collected, and better assist federal contractors to meet new veteran affirmative action obligations. Indeed, if finalized as proposed, this change would no longer require federal contractors to collect and maintain burdensome data by specific protected veteran category, and instead require them to collect and report data on the total number of individuals whom VEVRAA protects. This will significantly simplify the data collection requirements for federal contractors, and also reduce the burden on DOL-VETS to process the data. Moreover, the proposed rule will also have the secondary benefit of reducing costs of complying with OFCCP s affirmative action requirements with respect to protected veterans, for example by eliminating the need to maintain separate forms for pre- and post-offer invitations to self-identify. We believe the proposed changes will help eliminate confusion and improve protected veteran self-identification response rates. Federal contractors have for many years been required to invite applicants to inform the contractor whether he or she believes that they are a disabled veteran who may be covered by Section 4212 of VEVRAA. However, there has been ongoing confusion regarding differences between determining whether an individual is a disabled veteran and whether an individual is disabled under the Rehabilitation Act, and in particular when an individual identifies as a disabled veteran but does not also identify as an individual with a disability. To the extent that federal contractors opt to eliminate self-identification in the specific protected veteran categories, this will resolve the perceived contradiction if and when an individual self-identifies as a protected veteran because he or she is a disabled veteran, but not self-identify as an individual with a disability. Individuals also might feel more comfortable self-identifying as a protected veteran if they do not also have to reveal their disability status.
Page 4 The proposed rule will also have the important benefit of producing more relevant data than is currently collected. Current reporting requirements do not provide an accurate estimate of the number of protected veteran employees or new hires because veterans may be protected under more than one category. For example, a recently separated veteran with a disability who earned a campaign badge may be counted in three separate categories. By simply collecting data on the number of protected veterans, DOL-VETS will be able to determine the actual number of protected veterans employed or newly hired by contractors, thus providing a more accurate understanding of veteran participation in the workforce. In addition, as DOL-VETS points out, data showing the total number of protected veterans in federal contractor workforces from year to year would show trends in the employment of protected veterans, and analyses of those trends could be used to better assess the extent to which federal contractors are providing employment opportunities to protected veterans. THE VETS-4212 JOB CATEGORIES AND AVAILABLE REPORTING PERIODS SHOULD ALIGN WITH THOSE OF THE EEO-1 REPORT EEAC recommends that DOL-VETS make two minor changes to the VETS-4212 reporting obligation that more closely align the veterans reporting requirements to those found under the EEO-1 report. First, we recommend the job category numbers on the proposed VETS- 4212 form conform to the numbering of the very same categories found on the current EEO-1 report. The current VETS-100A report and proposed VETS-4212 report ask contractors to provide specific information on veterans employment by the ten occupational categories and subcategories found on the EEO-1 report. These categories are: Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Laborers and Helpers; and Service Workers. However, the EEO-1 report and the DOL-VETS s reports use slightly different numbering. Specifically, the EEO-1 report designates the first two categories, Executive/Senior Level Officials and Managers, and First/Mid-Level Officials and Managers, as job categories 1.1 and 1.2 respectively, followed by Professionals, numbered job category 2, Technicians numbered 3, and so on through number 9. The current VETS-100A Report and the proposed VETS-4212 Report designate Executive/Senior Level Officials and Managers as job category number 1, First/Mid-Level Officials and Managers as job category 2, and so on through number 10. Every federal contractor required to submit VETS-100A Reports also files annual EEO-1 Reports. Based on feedback from our members, this difference in the numbering of the same ten job categories between the current VETS-100/100A reports and the EEO-1 report, while seemingly minor, creates more than a minor degree of frustration among federal contractors and can lead to errors in reporting for one or both reports. Accordingly, we respectfully submit that aligning the categories would reduce the recordkeeping burdens on federal contractors and also improve the accuracy of the data being collected by DOL-VETS. EEAC also recommends that the proposed regulations be modified so that the ending date used for the employment activity report can be pulled from the same period permitted by the EEOC for EEO-1 reporting purposes. Currently, EEOC s Joint Reporting Committee permits
Page 5 employers to pull data reflecting a pay period from July, August or September, while DOL- VETS s regulations require a pay period ending in July or August. Aligning the reporting periods would allow all federal contractors to use a single dataset to complete both the VETS- 4212 and the EEO-1 reports. Specifically, we recommend that the proposed paragraph at 41 C.F.R. 61-300.10(d)(1), which details the end date to be used, be modified to read: As of the end of any pay period during the period July 1 through September 30 of the year the report is due; In the alternative, the paragraph could be revised to simply mirror whatever current reporting period the EEO-1 Joint Reporting Committee permits for the EEO-1 report, for example: As of the end of any pay period allowed by the EEO-1 Joint Reporting Committee for the filing of Employer Information Report EEO-1, Standard Form 100; Many of our member companies have repeatedly expressed their desire for this alignment change, and we can state with near certainty that it will be well received by the federal contracting community at large. THE INSTRUCTIONS FOR THE NEW VETS-4212 FORM SHOULD CLARIFY WHICH FIELDS ARE MANDATORY The proposed instructions for preparing the new VETS-4212 form arguably include contradictory statements regarding which data fields are mandatory. Specifically, the instructions state that Answers to questions in all areas of the VETS-4212 Report are mandatory. However, users are then instructed to leave the Company Number field blank. Further, consistent with past practice, users are only required to complete the DUNS Number field if the company has a Dun and Bradstreet Identification Number. A company filing a VETS-4212 Report may not have a DUNS Number and would properly leave this field blank. Moreover, the instructions for completing the DUNS Number field do not address situations in which neither the parent company nor the hiring location for which the report is being filed have an assigned DUNS Number, but multiple other establishments in the company have different DUNS Numbers. In such instances where an appropriate DUNS Number is difficult or impossible to identify, the DUNS Number field is also properly left blank. To address these inconsistencies, EEAC respectfully proposes that the first sentence in the How to Prepare the VETS-4212 Report section in the instructions be revised to read: Answers to questions in all areas of the VETS-4212 Report are mandatory unless otherwise specified below.
Page 6 We recommend that the instructions be further revised to ensure that mandatory fields are those required either by VEVRAA or DOL-VETS s implementing regulations, or are necessary for the collection of the data required by those authorities. For example, we propose that the instructions for completing the DUNS Number field read as follows: DUNS Number: If there is a specific Dun and Bradstreet Identification Number applicable to the hiring location for which the report is being filed, please enter the nine (9) digit number in the space provided. If the hiring location does not have a DUNS Number, enter the number for the parent company. If an appropriate DUNS Number cannot be identified for any reason, leave this field blank. Other mandatory fields accompanying the new VETS-4212 form also appear to be inconsistent with VEVRAA requirements, the proposed regulations, and the agency s past practice with the VETS-100 and VETS-100A forms. In particular, the proposed instructions appear to require contractors to break down new hires by job category. While this has always been an option on the VETS-100/100A reports, it has never been required. Nor is it required by VEVRAA or DOL-VETS s current regulations. In relevant part, 38 U.S.C. 4212(d)(1) requires contractors to provide: The number of employees in the workforce of such contractor, by job category and hiring location, and the number of such employees, by job category and hiring location, who are qualified covered veterans; and The number of new employees hired by the contractor during the period covered by the report and the number of such employees who are qualified covered veterans. The current implementing regulations at 41 C.F.R. 61-300.10(a) and the instructions for filling out the VETS-100-A form are consistent with the underlying statute, requiring contractors to provide: The number of covered veterans in each veteran category and the number of employees (including covered veterans) for each of the ten (10) occupational categories in lines 1-10 in columns L-P; and Just the total number of covered veteran new hires in each veteran category and the total number of new hires (including covered veterans) on line 11 in columns Q-U. Accordingly, the total number of covered veterans in each veteran category and the total number of employees (including covered veterans) may be reported on line 11 in columns L-P. More importantly, the number of covered veteran new hires in each veteran category and the
Page 7 number of new hires (including covered veterans) in each of the ten (10) occupational categories may be reported on lines 1-10 in columns Q-U, but providing information in these fields is optional. In fact, past versions of the VETS-100 form shaded these optional fields, 2 and the instructions referenced the shaded areas and explicitly stated that the shaded fields were optional. 3 We respectfully submit that compliance with the public disclosure requirements of Section 708 of the Honoring America s Veterans Act will be greatly simplified with clear instructions that contractors are not required to report new hires by job category. Specifically, EEAC recommends that the last sentence of the Number of Employees section of the proposed instructions be revised to read: Blank spaces on Lines 1-10 in columns A and B will be considered zeroes. Further, EEAC suggests that the New Hires (Previous 12 Months) section of the proposed instructions be redrafted in accordance with the proposed revised regulations and the underlying statute, as follows: New Hires (Previous 12 Months): Report the total number of full-time and parttime employees who were hired and who were included in the payroll for the first time during the 12-month period preceding the ending date of the selected payroll period. Report the total number of new hires who are protected veterans on line 11 in column C. Report the total number of new hires, including protected veterans, on line 11 in column D. EEAC further suggests that lines 1-10 in columns C and D, and line 11 of columns A and B of the proposed VETS-4212 form be shaded to further clarify that these fields are not required. Lastly, we believe that DOL-VETS could even further simply the proposed regulations and new VETS-4212 form to collect only what is required by VEVRAA. Specifically, VEVRAA at 38 U.S.C. 4212(d)(1) requires the Department of Labor to collect only three data elements from federal contractors: (A) the number of employees in the workforce of such contractor, by job category and hiring location, and the number of such employees, by job category and hiring location, who are qualified covered veterans; (B) the total number of new employees hired by the contractor during the period covered by the report and the number of such employees who are qualified covered veterans; and (C) the maximum number and the minimum number of employees of such contractor during the period covered by the report. 2 See 66 Fed. Reg. 51,998, 52,007 (October 11, 2001). 3 Id. at 52,005 ( Entries in lines 1 through 9 (shaded area) or columns O through R are optional. ).
Page 8 The only element that VEVRAA actually requires by location or by job category is the total number of employees and covered veterans. The other two data elements, the total number of hires by contractor and the maximum and minimum of employees by contractor, could be collected with the other identifying information for the contractor (company name, etc.) and removed from the VETS-4212 form altogether. This would simplify the reporting obligations of federal contractors, and subsequently, the reporting obligations of DOL-VETS pursuant to the public disclosure requirements of Section 708 of the Honoring America s Veterans and Caring for Camp Lejeune Families Act of 2012. THE REVISED REGULATIONS AND INSTRUCTIONS SHOULD BE REVISED TO CLARIFY THAT CONTRACTORS WITH TEN OR MORE HIRING LOCATIONS MAY FILE USING PAPER FORMS IF THEY ARE UNABLE TO FILE ELECTRONICALLY EEAC recommends that DOL-VETS clarify arguably conflicting statements in the proposed regulations regarding the use of paper forms. The proposed 61-300.11(c)(1)(ii) states that contractors with ten (10) or more hiring locations must submit the VETS-4212 Reports in the form of an electronic data file, and provides that these files may be submitted through the web-based filing system, transmitted electronically as an e-mail attachment (subject to certain restrictions), or submitted on a compact disc or other electronic storage media. Proposed paragraph 61-300.11(c)(2)(i) provides, apparently without limitation, that the VETS-4212 Report may also be filed in paper format. It is not immediately clear, however, whether contractors with ten (10) or more hiring locations can satisfy the Section 4212 reporting requirement by submitting paper forms. While we believe the vast majority of EEAC members subject to veterans reporting requirements will utilize one of the several electronic filing options, we also are aware that electronic systems can and will fail. Accordingly, EEAC recommends that the revised regulations and corresponding VETS-4212 Report instructions clarify that paper filing is still an option for contractors with ten (10) or more locations by revising proposed 61-300. 11(c)(1)(ii) to read as follows: Contractors and subcontractors doing business at 10 or more locations must submit their VETS-4212 Reports in the form of an electronic data file that complies with current Department of Labor specifications for the format of these records, and any other specifications established by the Department for the applicable reporting year. However, if a contractor with 10 or more locations is unable to submit an electronic data file, such contractor may satisfy this requirement by submitting paper forms in accordance with paragraph (c)(2) below. Contractors and subcontractors with fewer than 10 hiring locations are strongly encouraged to submit their VETS-4212 Reports in the form of an electronic data file, but are not required to do so. In these cases, state consolidated reports count as one location each. Contractors and subcontractors may submit VETS-4212 Reports in the form of electronic data files through the web-based filing system. Electronic data files also may be transmitted
Page 9 electronically as an e-mail attachment (if they do not exceed the size stated in the specifications), or submitted on compact discs or other commonly used electronic storage media. Finally, as a matter of further clarification, EEAC recommends that the proposed language in the new 61-300.11(c)(1)(ii) be revised to read, 10 or more locations, consistent with the current 61-300.11(b) and the Section-by-Section Analysis of the NPRM, rather than more than 10 locations as stated in the proposal. CONCLUSION EEAC appreciates the opportunity to submit these comments and commends DOL-VETS on its efforts to streamline the federal contractor veteran reporting process. We believe the proposed changes, with the minor adjustments we are recommending, will not only ease the data collection, recordkeeping, and reporting obligations for federal contractors, but will have a positive impact on protected veterans in the labor force by better assisting contractors in their veterans affirmative action efforts. Please feel free to contact me if you have any questions, or if we can provide you with any additional information. Sincerely, Danny E. Petrella Vice President, Compliance Policy