As discussed in Chapter 1, contractors must prepare, maintain and update on an annual basis, an AAP for protected veterans under VEVRAA. COs use the on-site review to investigate problem areas they identified during the desk audit, to gather further information regarding the AAPs and their implementation, and to learn more about the contractor’s employment activities and personnel practices. To gather information related to the VEVRAA AAP obligations, COs must interview contractor officials, employees and others, as appropriate. They must also identify and obtain documentation that evidences the contractor’s compliance efforts. This information is recorded in the SCER Parts B and C.
If the contractor opts to prepare a combined Section 503 and VEVRAA AAP, the CO must ensure that the combined AAP includes all the elements required under each law. When reviewing a combined AAP, COs should pay particular attention to the differences in the laws to ensure the contractor’s combined AAP captures all the required elements.
For example, Section 503 requires an annual analysis of the contractor’s utilization of individuals with disabilities and, where the contractor does not meet its goal, it must determine whether and where there are barriers to equal employment and develop action-oriented programs to correct any identified problem areas. VEVRAA, however, does not require a utilization analysis. It requires contractors to establish an annual hiring benchmark by which they can measure their progress toward achieving EEO for veterans. Under VEVRAA, there is not a requirement to identify problem areas or develop action-oriented programs. As this example illustrates, even though there is some overlap between Section 503 and VEVRAA AAPs, there are some stark differences that a CO must consider when reviewing Section 503 and VEVRAA AAPs for compliance.
2I00 VEVRAA AAP and Itemized Listing Data Submissions
During the desk audit, COs examine the VEVRAA AAP and support data to ensure it includes the required content, and determines whether the AAP and support data are acceptable. During the on-site review, COs interview contractor officials and others regarding the development and implementation of the AAP, and obtain documentation evidencing the same. COs record any problems identified during the desk audit and any problems identified during the on-site review in the SCER Parts B and C, as appropriate. COs must examine whether the contractor satisfied the following elements that are required parts of VEVRAA AAP:
a. Equal Opportunity Policy Statement. COs must verify that the policy statement is clearly posted on bulletin boards, and that the contractor has ensured that the notice is provided in a form that is accessible and understandable to disabled veterans. COs must examine the policy statement to determine if it is current, noting whether the person responsible for implementing the AAP is named.121
b. Review of Personnel Processes. COs may need to ask several questions to confirm a contractor’s review of personnel processes that include, but are not limited to:
- Does the contractor periodically review personnel processes to ensure that the qualifications of protected veterans for jobs, training and promotion are fully considered, and that it relies only on the portion of a protected veteran’s military record that is relevant to the requirements of opportunity for which the veteran is being considered? How often is this done?
- What procedures has the contractor designed to facilitate the periodic review?
- How does the contractor document its review of personnel processes and any actions it takes? How is that review conducted and by whom?
- Have there been requests from disabled veterans to modify personnel practices as a reasonable accommodation? How did the contractor respond to the requests?
COs must obtain and review all relevant documentation, including procedures, reports and personnel files. COs must also must determine whether the contractor’s personnel processes provide for the careful, thorough and systematic consideration of the job qualifications of applicants and employees who are known to be protected veterans for job vacancies, either for hire or promotion, and for all training opportunities.
c. Review of Physical and Mental Job Qualifications. The contractor is obligated to periodically review the physical and mental qualifications of its jobs and to eliminate those qualifications that tend to screen out qualified disabled veterans, and are not job-related and consistent with business necessity. The VEVRAA AAP must contain a schedule for this periodic review. While on-site, the CO must request samples of any mental or physical job qualification standards and interview individuals responsible for their periodic review.
To assess the contractor’s review of its physical and mental job qualifications, COs should consider the following questions:
- When did the contractor write or last update the job descriptions? Do the job descriptions accurately reflect the duties of the job? Do the job descriptions require the employee or applicant to perform duties in a specific way? If so, and those requirements tend to screen out qualified disabled veterans, is there a business necessity for performing the duties in this way, or are there alternative ways the duties can be satisfactorily performed?
- Are there job qualifications that would tend to screen out disabled veterans? For example, an unassisted lifting requirement may screen out individuals with disabilities even though employees are not required to lift unassisted. Are those job qualifications based on business necessity? If not, are there alternative qualifications that the contractor can use?
- Are the contractor’s job qualifications based on business necessity? If not, are there alternative qualifications that the contractor can use?
- Are there positions that do not have written job descriptions? If so, how does the contractor identify and review job qualifications?
d. Provide Needed Reasonable Accommodation to Physical and Mental Limitations. Contractors must provide needed reasonable accommodation to the known physical and mental limitations of qualified disabled veterans unless the accommodation would cause an undue hardship. Accommodations may include, but are not limited to:
- Modifying work places and making work places and other contractor facilities used by employees accessible;
- Restructuring of nonessential functions of jobs;
- Allowing essential functions to be performed in a different way;
- Assigning nonessential functions of the job to other employees;
- Providing readers, sign language interpreters or assistive devices;
- Providing part-time work, flexible hours, or telework; and
- Reassigning employees to a vacant position.
COs should inquire whether there is a process in place by which individuals can request needed accommodations and how requests for accommodations are processed. COs must also determine whether officials responsible for implementing the accommodation obligation are appropriately trained to address requests for accommodation. COs must also review the contractor’s accommodation request records that were not already reviewed at the desk audit to assess whether the contractor responds to requests promptly and appropriately. All accommodations made by the contractor must be effective. Generally, this means the contractor must provide the person who needs the accommodation the ability to perform essential job duties. In the case of an applicant, reasonable accommodation could include, for example, providing an alternate means for applying and being considered for employment other than an online application system. If requests for accommodation were denied, COs must obtain documentation reflecting these decisions and the basis for the decisions to ensure that the denials were proper.
e. Develop and Implement Procedures to Prevent Harassment. COs must confirm that the contractor developed and implemented procedures to ensure that employees are not harassed because of their status as a protected veteran. COs request a copy of these procedures, interview the official responsible for implementation, and review reports or internal investigations of alleged harassment based on protected veteran status and the contractor’s response.
f. Disseminate EEO Policy Externally and Perform Outreach and Positive Recruitment. While on-site, COs must request documentation showing that subcontractors were notified in writing of the contractor’s affirmative action policy, requesting appropriate action on the part of the subcontractors. Additionally, COs must verify during the on-site review that the contractor engaged in appropriate outreach and positive recruitment activities, evaluated the effectiveness of each outreach or recruitment activity, and assessed the total effectiveness of all of its efforts combined. While on-site, the CO must request documentation for all the contractor’s outreach activities and assessments for the three years prior to the AAP year, as well as any documentation of efforts during and after the AAP year. If the documentation and assessments show that the contractor’s efforts were not effective, the CO must determine whether the contractor has implemented alternative efforts to identify qualified protected veterans.122 COs may also refer contractors to OFCCP’s ERRD or other community resource databases that could serve as a recruitment resource.
g. Disseminate EEO Policy Internally. The AAP should clearly describe the methods the contractor used to disseminate its EEO policy internally. During the on-site review, COs must verify that the contractor actually implemented the required measures in 41 CFR 60-300.44(g)(2), and investigate whether the contractor additionally disseminated the policy in other ways, such as those suggested in 41 CFR 60-300.44(g)(3). They must also obtain documentation and verify through interviews that the internal dissemination activities identified in the AAP occurred.
h. Design and Implement an Audit and Reporting System. COs must confirm that the contractor has an audit and reporting system that, among other requirements, measures the overall effectiveness of its AAP.123 To do this, the CO must request documentation of the contractor’s actions to implement the audit and reporting system, as described in the AAP. COs should obtain documentation of past audit(s), any remedial actions taken and their effectiveness. The COs may conduct interviews with responsible officials and employees.
i. Designate an Official to Implement the AAP. While on-site, COs may seek an interview with the official named in the AAP to determine their specific responsibilities and the authority assigned to that individual, and how the official assesses the implementation of the AAP. COs must obtain documentation, such as a copy of the individual’s position description, copies of reports the individual has prepared, and supporting documentation for any assessments the official conducted.
j. Train Personnel to Ensure that the Contractor Implements EEO and AAP Commitments. COs must interview contractor staff, managers and officials to confirm that the contractor’s personnel involved in the recruitment, screening, selection, promotion, discipline and related processes have been trained to ensure that the commitments in the AAP are implemented. Questions relevant to this determination include:
- Does the contractor provide training to personnel? What type of training does the contractor provide? When, how frequently and by whom is this training provided?
- What are the trainer’s qualifications?
- Did the trainer use training materials? What were they?
If the trainer used written training materials, the CO must request a copy.
k. Analyze Data Collected on Applicants and Hires Who Identified as Protected Veterans. If, during the desk audit or on-site review, COs identify problems related to the contractor’s VEVRAA affirmative action obligations, COs must request the total number of applicants and hires for all jobs, total number of applicants and hires who are known protected veterans, total number of job openings and total number of jobs filled, going back three years from the beginning of the contractor’s current AAP year.124 For a contractor that is six months or more into the current AAP year, COs may also request the contractor’s records from the beginning of the current AAP year so that the CO can calculate the totals of applicants, hires, job openings and jobs filled. In some instances, the contractor may have already computed the totals. These requests must also be made to verify accuracy if COs detect data integrity problems at the desk audit or during the on-site review.
COs may use these data to inform their determinations on the effectiveness of the contractor’s outreach and positive recruitment activities, and whether the contractor’s personnel processes allow for the careful, systematic and thorough consideration of the job qualifications of qualified protected veterans. Some relevant questions might include:
- How does the contractor use the totals of applicants, hires, job openings and jobs filled as a criterion when determining the effectiveness of its outreach efforts?
- If the totality of its outreach efforts were not effective in identifying and recruiting protected veterans, what alternative efforts did the contractor implement (see examples at 41 CFR 60-300.44(f)(2))?
- Does the data indicate any potential problem with the personnel processes utilized by the contractor when considering job qualifications of applicants and employees who are known protected veterans for job vacancies filled either by hiring or promotion?
l. Verifying the VEVRAA Hiring Benchmark. The VEVRAA regulations require contractors to establish a hiring benchmark every year to use for measuring their progress toward achieving EEO for protected veterans. Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force, which is published and annually updated on OFCCP’s website. Alternatively, contractors may establish their own benchmarks by taking into account certain data from the BLS and VETS/ETA that is also published on the OFCCP website, as well as other factors that reflect the contractor’s own data and unique hiring circumstances.125
During the on-site review, COs must request the data and methodology used by the contractor to set its benchmark during the on-site review if the contractor sets its own hiring benchmark instead of using the benchmark provided by OFCCP. COs will use the underlying data to verify the contractor’s hiring benchmark, if this verification was not completed during the desk audit.
121. See Chapter 1H01.
122. For examples of outreach and recruitment activities, see 41 CFR 60-300.44(f)(2).
123. 41 CFR 60-300.44(h).
124. 41 CFR 60-300.44(k).
125. 41 CFR 60-300.45.
2I01 Availability of AAP for Inspection
COs must confirm that the contractor posted a notice, available to both employees and applicants for employment, stating that the VEVRAA AAP is available to any employee or applicant for employment to inspect, upon request. When the contractor conducts personnel-related business through the Internet, such as recruiting and disseminating employment notices, COs should strongly encourage the contractor to post the AAP notice electronically. The notice must include the location and hours during which the AAP may be obtained. An example of possible acceptable language is, “The AAP is available in the personnel office during regular business hours.” Confidential information or information that would allow for the identification of protected veterans must not be made available for inspection as part of the VEVRAA AAP.126
126. 41 CFR 60-300.41.
2I02 Invitation to Self-Identify as a Protected Veteran
Contractors must offer each applicant the opportunity to self-identify as a protected veteran under VEVRAA at both the pre-offer and post-offer phases of the hiring process.127 This data on applicants will be used by contractors to perform other components in their AAPs, such as the annual assessment of the effectiveness of outreach and positive recruitment efforts. The information is also used by the contractor to complete the annual VETS-4212 form. Contractors are required to keep all information on self-identification confidential.128
COs must confirm that the invitation for applicants to self-identify as protected veterans under VEVRAA is voluntary. The contractor must not use an applicant’s refusal to self-identify to subject the applicant to any adverse treatment.
Unlike Section 503, contractors do not have a requirement to invite employees to self-identify under VEVRAA. Also, the VEVRAA regulations do not mandate that contractors use a prescribed form for self-identification purposes. Even though there is not a mandated form, invitations to identify as a protected veteran must contain the following components:
- A statement that the company is a federal contractor required to take affirmative action to employ and advance in employment protected veterans pursuant to VEVRAA;
- A summary of the relevant portions of VEVRAA and the contractor’s AAP;
- A statement that the information is being requested on a voluntary basis;
- A statement that the information will be kept confidential;
- A statement that refusal to provide the information will not subject the applicant to adverse treatment; and
- A statement that the information will not be used in a manner inconsistent with VEVRAA.
An acceptable form for the invitation to self-identify is provided in the regulations and contractors may opt to use it.129
During an on-site review, COs must request a copy of the invitation used by contractors if it was not provided in the AAP, as well as request a sample of completed self-identification invitations. COs also must review any communication that contractors use to invite self-identification. In examining these documents, COs must determine whether the contractor’s invitation to self-identify is completely voluntary, and whether the contractor is following the required process to invite applicants to self-identify at the pre-offer and post-offer phases of the hiring process.
Depending on the scope of the on-site review, COs may examine the application or personnel file, or both, of each individual in the sample of completed self-identification invitations. For disabled veterans, this examination would include ensuring that the self-identification information is kept separately from personnel and medical files. COs may also review employment data indicating whether the contractor hired these individuals and, if not, the reason for nonselection. COs will also examine whether the individual requested a reasonable accommodation for application or employment as a disabled veteran and, if so, review the appropriate accommodation records to determine whether the contractor handled the accommodation request appropriately. If the contractor denied an accommodation request, COs must determine whether the denial was proper and whether, if needed, the contractor provided a suitable alternative accommodation without undue delay. If any concerns are identified, COs will also interview the affected applicants, employees and others, as appropriate.
VEVRAA has the same restrictions on disability-related inquiries and medical examinations as Section 503 explained earlier in FCCM Chapter 2H03.
127. See 41 CFR 300.42 (a-b).
128. See 41 CFR 300.42 (e).
129. See Appendix B to Part 60-300 – Sample Invitation to Self-Identify.