1H Review of a VEVRAA AAP and Itemized Listing Data for Acceptability

To be acceptable, a contractor’s VEVRAA AAP must include the below items listed in 41 CFR 60-300.44 and 41 CFR 60-300.45. It is the responsibility of Investigators to determine whether the contractor included all of the required items in the contractor’s VEVRAA AAP. Those items are listed in Section 1E02 of the FCCM, and the acceptability assessment of each item is described below. 

Contractors are required to take affirmative action to employ and advance in employment qualified protected veterans. The contractor must affirm its commitment to this affirmative action requirement by incorporating it in a policy statement included in its AAP. (See 41 CFR 60-300.44(a)). The contractor must also post this policy statement on company bulletin boards. Applicants and employees who are disabled veterans must be provided the policy statement in a format that is accessible and understandable such as Braille or large print versions of the notice.

At a minimum, to be acceptable, the policy statement must include:

• A statement indicating the top United States executive’s support for the EEO policy;
• A statement identifying the EEO official responsible for the implementation of the AAP;
• A statement that the contractor hires, recruits, trains and promotes without discrimination on the basis of status as a protected veteran;
• A statement providing for an audit and reporting system;
• A statement that the contractor will ensure that all employment decisions are based only on valid job requirements; and
• A statement that employees and applicants will not be subjected to harassment, intimidation, threats, coercion or discrimination because they engaged or may engage in filing a complaint, or assisted in a review, investigation or hearing related to any federal, state or local law requiring EEO for protected veterans; or because they opposed any act deemed unlawful by any of the above referenced laws; or because they exercised any other right under VEVRAA.

An AAP, to be acceptable, must affirm that the contractor reviews its personnel processes periodically. These processes must provide for the careful, thorough and systematic consideration of the job qualifications of applicants and employees who are known protected veterans for job vacancies either filled by hiring or promotion, and for all training opportunities offered or available. A contractor’s response to the Itemized Listing must provide their most recent assessment of its personnel processes. This assessment must include, at a minimum, a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment. (See 41 CFR 60-300.44(b)).

a. Use of Appendix C. Though not required, contractors may utilize the procedures described in Appendix C to 41 CFR Part 60-300 to fulfill this requirement. These procedures describe how contractors annotate applications or personnel forms of protected veterans when considering them for employment opportunities.

b. Adequacy of Present Procedures. Contractors may assert that their present personnel procedures are adequate and indicate that modifications to the procedures are unnecessary. Investigators must determine whether the information received during the desk audit supports that assertion to determine acceptability. Investigators must request additional information during the desk audit or on- site review if they are unable to make an acceptability determination.

c. Relevancy of Military Records. Contractors must rely only on the portion of a protected veteran’s military record that is relevant to the requirements of the opportunity for which the veteran is being considered. The contractor should confirm compliance with this requirement in the AAP.

d. Adverse Stereotyping. Part of the contractor’s review must be to ensure that its personnel processes are not stereotyping protected veterans in a manner that limits their access to jobs for which they are qualified.

An AAP must contain the contractor’s schedule for the review of all physical and mental job qualification standards to ensure that, to the extent they tend to screen out qualified disabled veterans, they are job-related and consistent with business necessity. To be acceptable, the AAP must affirm that the contractor completed a review of the physical and mental job qualification standards. The contractor’s desk audit submission must also contain the most recent assessment, including the date the assessment was performed, and any actions taken or changes made as a result of the assessment. (See 41 CFR 60-300.44(c)). If the Investigator is evaluating a newly covered contractor, the AAP must provide a specific and reasonable time by which the contractor will review the physical and mental job qualifications.

The contractor must ensure that any inquiries or medical examinations regarding an applicant’s or employee’s medical condition made by, or at the behest of, the contractor are conducted following relevant laws, including 41 CFR 60-300.23. All medical information the contractor obtains as a result of such inquiries or exams must be treated as confidential and maintained on separate forms and medical files, except as otherwise provided for in 41 CFR 60-300.23(d). The Investigator may also consult the EEOC’s Enforcement Guide: Preemployment Disability-Related Questions and Medical Examinations ( https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical ) and 41 CFR 300.23(d) for more information on pre-employment medical examinations and inquiries.

As a matter of nondiscrimination, contractors must make reasonable accommodation to the physical and mental limitations when requested by qualified disabled veterans unless they can demonstrate that such accommodation would impose an undue hardship. In assessing undue hardship, contractors may consider factors such as financial costs and interference with the ability of other employees to do their jobs. As a matter of affirmative action, if an employee who is a known disabled veteran is having significant difficulty performing their job and it is reasonable to conclude that the performance problem may be related to the disability, then the contractor must confidentially notify the employee of the performance problem and inquire whether it is related to the employee’s disability. If the answer is yes, the contractor must also confidentially inquire whether the employee needs a reasonable accommodation.

Appendix A to the VEVRAA regulations at 41 CFR Part 60-300, Guidelines on a Contractor’s Duty to Provide Reasonable Accommodation, provides additional information about the scope of the “undue hardship” defense and examples of reasonable accommodations, among other things. Though not required, Investigators should encourage contractors to develop and use written procedures to process requests for reasonable accommodations. For more on reasonable accommodation, please refer to Section 1G04 of the FCCM.

Contractors must develop and implement procedures to ensure that employees are not harassed because of their status as a protected veteran. A contractor should include a copy of these procedures in the AAP. This statement may be part of a broader anti-harassment policy that also prohibits harassment on other bases such as race and sex.

Under 41 CFR 60-300.44(f), the contractor must send written notification of the company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part. Investigators should look for a description of the company’s process for sending these notifications in the AAP and verify that the contractor sent the notifications if an on-site review is conducted.

An acceptable AAP must affirm that the contractor engages in outreach and recruitment efforts reasonably designed to effectively recruit qualified protected veterans. The contractor may engage in activities such as job fairs, recruitment activities with educational institutions and organizations that focus on job training and development for veterans and posting of job opportunities with specialized organizations. Contractors may also develop their own outreach program. The scope of the contractor’s efforts will depend upon circumstances including the contractor’s size and resources, and the extent to which existing employment practices are adequate. Contractors can find more examples of outreach and recruitment activities at 41 CFR 60-300.44(f)(2).

The AAP must include documentation of the contractor’s assessment of its outreach and recruitment efforts that the contractor made over the previous 12 months. This assessment is two- fold in that the contractor must evaluate the effectiveness of each effort and conclude whether the totality of its efforts has been effective in identifying and recruiting qualified protected veterans . When evaluating the effectiveness of each effort, the contractor must document its determination and, at a minimum, include the criteria used to make the determination. One of the criteria that must be included is the data collected under 41 CFR 60-300.44(k) discussed below in subsection 1H12. If, when looking at the totality of its efforts, the contractor concludes that outreach and recruitment efforts were not effective, it must identify alternative efforts that it will implement to fulfill its affirmative action obligations. Investigators must also ensure that the conclusion is reasonable for the AAP to be acceptable. To be an acceptable submission, contractors must provide all documentation discussed in this section with their AAP and Itemized Listing submission. Examples of what an Investigator should expect to see include:

• Documentation of meetings and agreements made with organizations outlining the recruiting expectations;
• Emails, mailings, or other correspondence indicating job vacancies shared with the organization;
• Documentation showing the number of applicants and/or hires from organizations tied to outreach and recruitment efforts; and
• Documentation of the analysis on outreach and recruitment efforts.

Investigators must record the results in CMS.

An acceptable AAP must address the contractor’s procedures to disseminate its EEO policy internally. The policy must be included in the contractor’s policy manual or otherwise made available to employees. Also, if the contractor is a party to a collective bargaining agreement, the contractor must provide notice to union officials and/or employee representatives of the EEO policy and request their cooperation. The procedures must be designed to foster understanding, acceptance and support among the contractor’s employees, and to encourage employees to take actions to aid the contractor in meeting this obligation. The regulations at 41 CFR 60-300.44(g)(3) provide examples of the types of activities contractors may undertake to enhance their efforts to employ protected veterans and to advance them in employment. For example, contractors may schedule periodic employee meetings to discuss the policy or conduct meetings with executive, managerial and supervisory personnel to explain the intent of the policy, and to delineate individual responsibility for its implementation.

An acceptable AAP contains a narrative description of the contractor’s internal audit and reporting system. The system must be designed to perform and document the following actions:

• Measure the overall effectiveness of the AAP;
• Indicate any need for remedial action;
• Determine the degree to which the contractor’s objectives have been attained;
• Determine whether known protected veterans have had the opportunity to participate in all company-sponsored educational, training, recreational, and social activities; and
• Measure the contractor’s compliance with the AAP’s specific obligations.

Documentation of these actions must be retained as employment records and submitted in response to the Scheduling Letter. An acceptable AAP will also specify the frequency of reports and audits, and describe the actions taken to address deficiencies identified by the audit and reporting system.

An acceptable AAP must identify the person assigned responsibility for implementing the contractor’s affirmative action activities for protected veterans and describe their responsibilities. The contractor must give this official the necessary senior management support and staff to manage the implementation of the program. The AAP should also describe the responsibilities of line management in carrying out the program.

Contractors are required to train their personnel involved in recruitment, screening, selection, promotion, disciplinary and related processes about the company’s EEO obligations and, if appropriate, about the contractor’s affirmative action commitments under VEVRAA. This section of the AAP should contain documentation that these personnel have been trained to ensure that the commitments in the AAP are implemented.

Contractors are required to document the below information on an annual basis as part of their AAP, and maintain the data for three years under 41 CFR 60-300.44(k).

• The total number of job openings and total number of jobs filled. Job openings include those that may be externally and internally filled;
• The total number of applicants for all jobs;
• The number of applicants who self-identified as protected veterans or who are otherwise known as protected veterans;
• The total number of applicants hired; and
• The total number of protected veteran applicants hired.

When reviewing the AAP for acceptability, the Investigator must verify that the contractor provided documentation of computations or comparisons of the above information, as requested in the Itemized Listing. These computations or comparisons are criteria used to evaluate the effectiveness of the contractor’s outreach and positive recruitment efforts. The data may also be used to analyze applicant trends to inform the contractor’s review of personnel practices and self-audit.

The VEVRAA regulations at 41 CFR 60-300.45 require contractors to establish a hiring benchmark every year to use for measuring their progress toward achieving EEO for protected veterans. The regulation also includes recordkeeping requirements related to documenting the hiring benchmark.

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 at https://www.dol.gov/agencies/ofccp/vevraa/hiring-benchmark. Alternatively, as described in 41 CFR 60-300.45(b)(2) and discussed below, contractors may establish their benchmarks by taking into account certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that is also published on the OFCCP website at https://www.dol.gov/agencies/ofccp/vevraa/hiring-benchmark, as well other factors that reflect the contractor’s own data and unique hiring circumstances. 

When reviewing an AAP for acceptability, Investigators must first review documentation provided by the contractor to determine which method the contractor used to establish a hiring benchmark. If the contractor used the five factors described in 41 CFR 60-300.45(b)(2), then the Investigator must review the methodology used by the contractor to adopt its hiring benchmark. The benchmark represents the percentage of protected veterans that the contractor seeks to hire during the AAP year. If a contractor is six months or more into their current AAP year when they receive the Scheduling Letter, they must also submit current year hiring data as OFCCP will measure the contractor’s progress towards the veterans hiring benchmark. The Investigator must assess whether the contractor met its hiring benchmark using the hiring data submitted by the contractor.

To set a benchmark using the five-factor method, contractors must consider all of the five factors listed below:

• The average percentage of veterans in the civilian labor force for the state where the establishment is located for the previous three years. The DOL’s BLS calculates this information regarding the general availability of veterans for employment for each state. This data is provided in two different formats on OFCCP’s website. One format displays annual data for every state, by year. While the other format shows three years of data for each individual state, by state. (Note: This data is not available for Puerto Rico, the U.S. Virgin Islands, American Samoa, the Northern Mariana Islands, Wake Island or Guam. Contractors in Puerto Rico or the U.S. Virgin Islands should select Florida data. Contractors in American Samoa, the Northern Mariana Islands, Wake Island and Guam should select Hawaii data.)
• The number of veterans who participated in the ESDS in the State where the establishment is located over the previous four quarters. The DOL’s VETS tabulates this data regarding the number of veterans seeking jobs. This data is provided on OFCCP’s website for the most recent four quarters, as well as for previous periods. (Note: This data is not available for American Samoa, the Northern Mariana Islands, Wake Island or Guam. Contractors in those locations should select Hawaii data.)
• The applicant ratio and hiring ratio for the establishment for the previous year. To make these computations, contractors use the data they have collected to comply with 41 CFR 60-300.44(k), which should also be included in the AAP. To calculate the applicant ratio, compare the number of protected veteran applicants to the total number of applicants. To calculate the hiring ratio, compare the number of protected veterans hired to the total number of hires.
• The most recent assessment of the effectiveness of the contractor’s outreach and recruitment efforts. This information is included in the AAP.
• Any other factor, such as the nature of the job openings or the facility’s location, which would tend to affect the availability of qualified protected veterans. This factor provides contractors with the flexibility to consider any other pertinent factors about your establishment or the nature of your business that might affect the availability of qualified protected veterans as part of the process of establishing the hiring benchmark.

Contractors using this individualized method have the discretion to weigh the various factors in a manner that is reasonable in light of their unique circumstances. However, they must document each factor considered and explain the methodology and rationale used to arrive at the benchmark selected.

Contractors with multiple establishments that choose the five-factor option may establish individualized benchmarks for each of their establishments or may choose, instead, to adopt the national percentage of veterans in the civilian labor force as the benchmark for one or more of their establishments. Contractors with multiple establishments may utilize only one benchmark option per establishment.

The VEVRAA regulations do not require the contractor to conduct a hiring benchmark analysis. However, a contractor may conduct such an analysis using data it has collected. The VEVRAA hiring benchmark may be used by contractors as one of the criteria to measure the effectiveness of their outreach and recruitment efforts.

Investigators must also ensure contractors are fulfilling additional requirements in VEVRAA: Mandatory Job Listings and submitting the VETS 4212 form. Investigators will record this information in CMS.

a. Mandatory Job Listings. Contractors must list employment openings with the state workforce agency job bank or with the local employment service delivery system (ESDS) where each individual opening occurs. Contractors must also inform the ESDS of the following in each state where it has establishments:

• It is a Federal contractor, so that the employment service delivery systems are able to identify them as such;
• It desires priority referrals from the state of protected veterans for job openings at all locations within the state;
• And provide the name and location of each hiring location within the state and the contact information for the contractor official responsible for hiring at each location.

b. VETS 4212. Contractors are required to submit the VETS 4212 form yearly. While OFCCP does not issue or receive the form, OFCCP may verify that this obligation is met. If the obligation is not met, OFCCP will inform the Veterans' Employment and Training Service.