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Earlier this year, the Department of Labor’s Office of Federal Contracts Compliance Programs (OFCCP) announced a proposal to revise regulations implementing the affirmative action provisions of the Vietnam Era Veteran’s Readjustment Assistance Act of 1974.  The notice of proposed rulemaking can be found in a document entitled “Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans”.  As you might imagine, there was considerable wailing and gnashing of teeth regarding the proposed changes, most centered on how the changes will significantly add to the already considerable administrative burden companies undertake to demonstrate compliance. If you’d like to read the comments submitted by various associations, employers, law firms and concerned individuals, go to www.Regulations.gov and type in key word “RIN 1250-AA00” (without quotes).

I want to take a moment and wail and gnash my teeth, too.  However, you may be surprised to know that my frustration is not with the OFCCP – it is with the affirmative action / equal opportunity compliance (AA/EO) professionals and the corporate legal folks. 

Let’s address the AA/EO folks first.   The reason the OFCCP makes you jump through hoops regarding the number of qualified veterans applying to and being hired by your company is because you are receiving tax payer dollars, in the form of a government contract; as such, the government wants to ensure your company provides affirmative action and equal opportunity in its hiring and retention practices.  Veterans and persons with disabilities are just two of the groups of workers on which OFCCP focuses. 

The Vietnam Era Veteran’s Readjustment Assistance Act of 1974 states:  “Any contract in the amount of $25,000 (amended to $100,00 in 2003) or more entered into by any department or agency for the procurement of personal property and non-personal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era and 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.”

So, the Act directs a contractor to take “affirmative action to employ”.  The Act also requires an employer to submit an annual report (the VETS-100/A) on the number of veterans (as described above) employed and the number of new veterans hired in the last report period.  The vast majority of military members who have served since 9/11 will fall into the third category, and a good percentage will fall into the first category, so you might think that this would be a particularly easy group of people to find and hire.  And yet, we continue to have a significant unemployment rate for post-9/11 veterans.

(Note:  if you would like a list of the campaign badges and service medals that qualify a service member for category #3 and a paper on how to confirm this information on a DD-214 / Transcript of Military Service, please email me.)

My frustration is that AA/EO professionals seem to be singularly focused on the administrative aspect of this requirement.  Their primary concern is proving positions were listed in the state employment database, which is an action considered to be the bare minimum step to take towards affirmative action.  The AA/EO pro’s seem to be far less interested in taking any other steps toward “affirmative action to employ”.  This drives me nuts, as producing an audit trail that proves the bare minimum effort to be compliant was done is not the same thing as taking “affirmative action to employ”.

I participate in several OFCCP-related groups on LinkedIn , and when I see AA/EO folks posting questions about audits and tracking and outreach to veterans, I chime in with proven tactics for both finding and attracting military service members.    My suggestions go well beyond the “post and pray” method of trying to find a targeted demographic.  These tactics, if executed, have been proven to result in a greater number of veterans applying and being hired.  And, I almost always get a virtual slap down for my suggestions and a “we’re just interested in knowing where to post the jobs” retort.

Look, I know AA/EO pros are not recruiters/sourcers.  It is not your job to go out and actually execute the tactics I am suggesting.  However – you are supposed to be a critical component of the HR team, so if you come across info that will help your team take “affirmative action to employ” , I would think you would be interested in hearing it and sharing it with those who will execute the ideas. 

And, since AA/EO pro’s are the one’s getting beaten about the head and shoulders during the OFCCP audit, I would think, as a matter of pure self interest, you would want the team to collectively do things will allow you to show real hiring progress and not just administrative compliance.  Wouldn’t that make an audit a more pleasant experience?

My second frustration is with the corporate legal folks.  They have a job to protect the organization from lawsuits on many fronts, including hiring.  My frustration comes from the zealousness with which some of them dismiss ideas that are proven to attract military veterans.  “Hold an open house?  Can’t show favoritism!”  “Ask the veteran to self-identify when applying?  Smacks of a hiring preference!”  Many techniques that would definitely be taking “affirmative action to employ” veterans, and tactics that are proven to work, are summarily dismissed under the premise of protecting the company.

No wonder human resource professionals are frustrated!  They are being told to improve recruitment of military members, there are solid business reasons for hiring veterans, and yet they are being hamstringed in their efforts to connect with this population.

I’d like to hear from AA/EO pro’s on this.  How do you view your role in the affirmative action process?  What is holding you back from moving beyond the administrative work?  Please add your comments below.

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