A few years ago the OFCCP effectively closed the gap between “protected” and “non-protected” veterans by defining a term in the VEVRAA veteran categories more broadly than everyone thought. In doing so, the agency not only helped federal contractor employers with their “numbers,” but also their messaging, and simplified the veteran self-identification process. Unfortunately, veteran self-identification will get a bit more complicated again in three years or so because the U.S. Congress is now busy repealing authorizations for the use of military force in Iraq and Afghanistan. Let us explain.
VEVRAA is a rather large piece of legislation largely focused on benefits for U.S. veterans. Benefits tend to cost money and not all benefits can be made available to all veterans, so it is not surprising that certain types of veterans are defined and used throughout the legislation to differentiate veterans for eligibility for various benefits.
When the drafters of the legislation came to Section 4212 (did we mention this is a large bill?) perhaps they were tired and missed the fact that equal employment opportunity is free to the federal government. In what very well be a copy-and-paste error, federal contractor employers are required to provide affirmative action to “protected veterans,” those who fall into one or more of four rather strictly defined veteran categories. This hamstrung affirmative action compliance professionals from the very beginning in a few ways.
- It saddled compliance professionals with terrible messaging—the idea that some veterans “count” and some do not, for example.
- It made veteran self-identification cumbersome, even for people familiar with federal government forms and bureaucracy. Accurate self-identification often required people to engage in research to determine if they qualify.
In addition to the OFCCP’s updated veteran regulations, implemented in 2014, the agency has now effectively burdened contractors with what this author likes to call the “veteran two-step.” Contractors are currently required to set a veteran hiring benchmark and annually compare that to their actual veteran hiring activity to determine whether and to what extent the organization needs to strengthen their veteran outreach and recruiting efforts.
Yet the agency is adamant only “protected” veterans be counted toward the hiring goal. If the goal was not met, then and only then could contractors consider their “total” veteran numbers to determine if increased outreach and recruiting efforts are necessary. Why? Because there is no such thing as “protected” veteran outreach. It would be like evaluating the sufficiency of a supermarket’s produce department by only counting the grapes.
So if your veteran numbers are robust, but your “protected” veteran numbers fall short, you have to admit that the veteran hiring goal was not met, then argue that no additional outreach is necessary in your “identification of problem areas” and your resulting “action plan.” If you try to skip to the end and simply declare that your veteran numbers are sufficient based on total veteran population, the OFCCP will throw a red flag on the field. Hence, the two-step.
The OFCCP did a rather miraculous thing when they took a close look at the “active duty wartime or campaign badge” veteran category. It’s a bit of an odd duck in that it is really two categories combined into one. A person can qualify by either serving on active duty during “wartime,” or by having been awarded a qualifying “campaign badge” (requiring users to go elsewhere to look up which badges qualify or not).
Everyone just assumed that “wartime” meant serving in a war officially declared by the U.S. Congress, which hasn’t happened since World War II. But the folks at OFCCP are clever and they noticed that the term, “wartime,” didn’t actually have a statutory definition, which meant the OFCCP was free to define that term themselves for their implementing regulations. So that’s exactly what they did. Cribbing from other, similar definitions, the OFCCP clarified that “wartime” covers “periods of war” including the Vietnam Conflict, the Korean Conflict, and the “Gulf War,” which was ongoing at the time. As a result, virtually every veteran in the civilian labor force qualified as an “active duty wartime or campaign badge veteran.” We all celebrated, and probably owe the OFCCP a fruit basket or something.
In case you haven’t noticed, the “Gulf War” is grinding to a halt. Congress is busy revoking authorizations for the use of military force (which is the way they declare war without having to actually declare war). So in a few years, we will start to see veterans who left service without actually serving during a “period of war.” Three years after their separation, and if they are not a “disabled veteran” (which is not the same as an individual with a disability under the ADA or Section 503, by the way), they’ll be back to looking up service medals and campaign badges to determine whether or not they qualify. Unfortunately for many, it will be far easier to simply check “no” on the self-ID form and call it a day.
What we don’t know is when the “Gulf War” officially “ends” for these purposes. BCGi has reached out to the OFCCP’s policymakers in the national office and received the following reply:
At this time, OFCCP has not changed its guidance due to the repeal efforts and cannot update its guidance until the bill language becomes law. OFCCP will continue to monitor the latest developments on the repeal efforts and will provide future guidance to stakeholders, if necessary.
Of course, the agency is not at all prohibited from providing contractors with guidance here, even if that guidance is simply noting that the agency recognizes the potential issue and is monitoring the situation, but current guidance is still valid. That’s great guidance! And that is now the case. Whether or not the OFCCP was keen on this issue before BCGi’s inquiry is a legitimate question, but they’re on it now. And for now, nothing changes. You don’t have to make any changes to your veteran self-ID forms, you don’t have to explain changes to any of the VEVRAA veteran categories, and your “protected” and “non-protected” numbers should be about the same.
One thing you can go ahead and do now is drop references to “protected” veterans in your materials. That is a term of art that the regulations do not actually require you to place in your lexicon. BCGi prefers the term “VEVRAA veteran” or “VEVRAA category” to avoid the unnecessary perception that certain types of veterans “count” while others do not.
About two or three years from now, however, contractors will need additional guidance from the OFCCP and veteran self-identification might change a little. But a little change can have an outsized impact, so let’s hope that future guidance is as inspired as the OFCCP’s definition of “wartime.”
Until then, if you have questions about this or any other OFCCP-related matter, feel free to drop us a line at BCGi@Biddle.com.