The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
Monday, November 9, 2015: Week 2: No Decision Yet In The Odd Odyssey of OFCCP’s Internal Debate Whether to Expand The Definition of Protected Veteran From “During a War” To “During a Period of War”
Status: A House Divided
- OFCCP’s VEVRAA regulations still define a Protected Veteran to be (among other things) one who served “during a war” pursuant to 38 USC 4212(a)(3)..i.e. the “narrower definition”
- OFCCP’s recent website Infographic expanding the definition of Protected Veteran to include those veterans who enjoy certain pension benefits and employment preferences because they served “during a period of war” (i.e. the “broader” definition) pursuant to 38 USC 101 is nonetheless still on OFCCP’s website despite the inconsistency with OFCCP’s regulations
- OFCCP’s Website FAQs nonetheless still define Protected Veterans and those wishing to file a Complaint against federal contractors to be those who served “during a war” (the historic narrower definition) pursuant to 38 USC 4212(a)(3) (consistent with OFCCP’s VEVRAA regulations)
- OFCCP Director Shiu’s statements Friday October 30 to the NELI Affirmative Action Briefing Chicago audience that OFCCP had not expanded the definition of Protected Veteran and had not adopted the 38 USC 101 definition remain the latest OFCCP statement of record
- Some OFCCP career staff are nonetheless attempting to change the Director’s mind
NOTE: Should veterans covered by 38 USC 101 (but not 38 USC 4212(a)(3)) attempt to file Complaints with OFCCP against a federal contractor, the contractor should object and demand OFCCP dismiss the Complaint for lack of jurisdiction pursuant to the (narrower) 38 USC 4212(a)(3) definition of Protected Veteran (which is the only definition OFCCP regulations recognize).
Should OFCCP exercise its prosecutorial discretion to allow covered federal contractors to violate OFCCP’s regulations and count 38 USC 101 veterans as “Protected Veterans,” federal contractors should NOT change their VEVRAA Self-ID forms UNTIL the Veterans Employment & Training Service (VETS) ALSO exercises its prosecutorial discretion to allow federal contractors to file the VETS-4212 Form using the broader 38 USC 101 definition of Protected Veteran (since federal contractors using the expanded definition on their Self-ID forms will not thereafter be able to report who is a “Protected Veteran” as defined by the narrower 38 USC 4212(a)(3) definition of veterans which is called for by the VETS-4212 form). Alternatively, federal contractors could set up “two sets of books” relying on Self-ID forms which invite new hires to Self-Identify whether they are protected pursuant to the broader 38 USC 101 definition of veteran or the narrower 38 USC 4212(a)(3) definition thus far still needed to annually report on the VETS-4212 form.
Also, should veterans covered by 38 USC 101 (but not covered by 38 USC 4212(a)(3)) file Complaints with The Office of The Secretary of Labor (pursuant to 38 USC 4212) against a federal contractor for violating either OFCCP’s or VETS’ regulations because the contractor has used the broader definition of Protected Veteran, the contractor should object and demand The Secretary dismiss the Complaint for lack of jurisdiction pursuant to the narrower definition of VEVRAA (which is the definition the Labor Department, VETS and OFCCP must apply pursuant to VEVRAA and OFCCP’s and VETS’ regulations).
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email candee@directemployers.org with your ideas.
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