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OFCCP Releases FAQ Guidance on VEVRAA Focused Reviews

The first round of VEVRAA focused reviews is on the horizon.  Last year, OFCCP released its scheduling list identifying the federal contractors who were selected for focused reviews of their compliance with the Vietnam Era Veterans Readjustment Assistance Act.  The start of the focused reviews was delayed, however, because OFCCP did not have Office of Management and Budget approval for its Scheduling Letters that commence the reviews. 

In April 2020, OFCCP obtained the required OMB approval, which gives the green light for the agency to move forward.  In anticipation of the agency’s issuance of the Scheduling Letters to the selected contractors, OFCCP released new FAQ guidance on May 5, 2020 that provides contractors with insight into the new focused review process.  Some of the highlights are summarized below:

  • Limited Scope of Review:   OFCCP confirmed that VEVRAA focused reviews will focus on the contractor’s compliance with VEVRAA, and not on other obligations under Executive Order 11246 or Section 503 of the Rehabilitation Act.  Although the VEVRAA Scheduling Letter requires the contractor to submit its Executive Order 11246 affirmative action plan (AAP), OFCCP will not conduct a full compliance review of that AAP or analyze whether there is evidence of discrimination based on race, sex, or ethnicity.  Instead, OFCCP will use the Executive Order 11246 AAP to help understand the contractor’s organizational structure and how the contractor’s VEVRAA efforts fit within its broader affirmative action program.  That being said, the FAQs do reserve the right for OFCCP to “take appropriate actions, beginning with technical assistance” if elements of the Executive Order 11246 are “missing or insufficient on their face.”  Accordingly, contractors should ensure that all of their AAPs are in order, even if the contractor has been selected for a limited scope VEVRAA focused review.

  • On-Site Investigations:   The FAQs disclose that every VEVRAA focused review will include an on-site investigation in which OFCCP investigators will interview managers responsible for VEVRAA compliance, employees affected by VEVRAA policies, and evaluate the handling of accommodation requests.  In addition, OFCCP reserves the right for its first round of interviews to take place at both the contractor’s corporate headquarters and its establishment locations.  This contrasts with OFCCP’s guidance for Section 503 focused reviews, in which the first round of interviews is limited to the contractor’s headquarters.  Notably, the FAQ notes that OFCCP may revisit its policy of conducting an on-site investigation in every VEVRAA focused review in future years.

  • Focus on Policy Assessment and Data Analysis:   Although the FAQs explain that OFCCP will assess the contractor’s compliance with “all elements” of the VEVRAA regulations, two aspects are explicitly noted as focuses for the review: “whether the contractor conducted the required assessments of its employment policies and tracked appropriate data concerning protected veterans.”  These data analysis and policy assessment obligations are often overlooked aspects of OFCCP compliance.  Contractors should be sure to engage in these exercises and document their occurrence to ensure they are in a position to produce evidence of compliance to OFCCP.

  • Exemption from Other Reviews:   Finally, the FAQs clarify that while a VEVRAA focused review is pending, the contractor establishment is exempt from being scheduled for other compliance evaluations.  In addition, awardees of the 2018 HIRE Vets Medallion, for exceptional efforts in compliance, are also exempted from VEVRAA focused reviews.

OFCCP will likely issue VEVRAA Scheduling Letters to contractors and subcontractors on its scheduling list in the very near future.  Contractors should take efforts now to pre-audit their compliance and identify and address any potential concerns before receiving a Scheduling Letter. 

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 133



About this Author

Conne Bertram Government Contract Lawyer Polsinelli Law Firm

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive...

Jack Blum Polsinelli Employment Attorney

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all aspects of complex employment litigation and has advised and defended employer clients regarding a wide variety of employee claims, including:

• Employment discrimination, harassment, and retaliation
• Wage and hour
• Employment contract disputes
• Independent contractor/employee misclassification audits 
• Tort claims arising out of the employment relationship

Jack also has extensive experience representing parties in litigation arising from employee mobility, including claims involving non-competition, non-solicitation, and confidentiality agreements as well as the misappropriation of trade secrets. Significantly, Jack has experience in both prosecuting and defending these claims and is, therefore, able to offer clients a well-rounded assessment of their options and courses of action. Jack also has experience redressing employee data breaches under the Computer Fraud and Abuse Act.

Jack also has a background in employment counseling, where he has worked closely with in-house counsel, human resources personnel, and business executives to craft personnel policies that meet the client’s business requirements while complying with applicable laws. Jack has particular experience in assisting clients with issues relating to employee/independent contractor classifications, and regularly advises clients regarding the defensibility of classifications, drafts independent contractor agreements to provide the strongest possible arguments in support of the classification, and defends misclassification claims asserted by employees and government agencies. Jack also walks clients through sensitive personnel actions to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

During law school, Jack served as a legal intern in the U.S. Securities and Exchange Commission’s Office of the Inspector General where he contributed to several high-profile internal investigations, and also interned with the Maryland Attorney General’s Office.