2020 is going to be a big year for federal contractors, and our experts went to work unpacking all of the relevant information that contractors need to be aware of in the coming year. One big topic that still has the contractor community reeling stems from the OFCCP’s VEVRAA and USERRA Town Hall that took place in Washington, D.C., on August 7, 2019. This topic took many by surprise when OFCCP Director Craig Leen stated that military spouses are protected under VEVRAA regulations. See how OFCCP experts Candee Chambers and John C. Fox of Fox, Wang & Morgan, unpacked this conversation to determine how and why the OFCCP came to this conclusion.
When we were at the OFCCP for the NELI presentation, one of the things OFCCP Director Craig Leen started talking about, that came as a huge surprise, was when he mentioned the inclusion of military spouses in the VEVRAA Focused Reviews. God knows you have been working with the OFCCP for a very long time, and I was dumbfounded by that and I think you were too.
John C. Fox:
Oh sure. My jaw dropped and I immediately asked him, “Well, wait a minute Craig, what are you saying? Are you saying that military spouses are protected by VEVRAA?” And he shot back immediately, “Of course. Yes.”
I thought it was very interesting. John, do you remember when he said, “Well, that’s what my legal is telling me.” It’s coming from the Solicitor’s Office obviously, so that surprised me.
John C. Fox:
Let’s unpack this a little bit though because VEVRAA, the Vietnam Era Veterans Readjustment Assistance Act of 1974 and OFCCP’s regulations do not protect anybody but protected veterans.
But they’re talking about the relationship clause.
John C. Fox:
So what they’re doing is that they are, and it’s in their regs as you suggest, there’s a relationship non-discrimination component to those 2014 regs that went to Final that says if you discriminate against somebody because they’re in a relationship with a protected veteran, then that’s unlawful. This was something they borrowed from the ADA in 1990, which prohibited relationship discrimination. So, if you are the personal assistant pushing somebody’s wheelchair and you apply for work somewhere and they’re concerned that you’re going to be too distracted at work because you’re going to be subject to going to assist this other person because of their disability that may cause them to take on more need on any particular day, that would be unlawful discrimination. But here, what they’ve been saying is just a flat-out prohibition on not hiring a spouse of an active duty service member. Now I’m about the most sympathetic person on the planet to this issue, I would think. I was a military brat.
Brat is right, there’s no pun intended with that.
John C. Fox:
And so, I grew up in 17 states and two continents before the age of 17 and saw my mother struggle in every location we moved to around the country and out of country trying to find a job that was going to last between two and six months at best, and that problem has not abated. It’s still a challenge. The only thing that has really helped military spouses so far by the way is working via remote. That has been a real boon to military spouses and I know a lot of military spouses who have been able to work full time because they’re online or they’re on the telephone.
So there’s a good point to all of our government contractor listeners. I get the question a lot from our members about adding military spouses to their veteran self-identification forms. You can do just about anything you want with a veteran Self-ID. You cannot with Section 503 but with veteran Self-ID, you can add Vietnam-era veterans. You can add whatever you really want, but I would strongly recommend that you do not include military spouses. It is one of those things that if you ask for something, you have to think about what you are going to do with that information. If you are in a situation now where they are going to be doing VEVRAA Focused Reviews and they are going to be looking at your treatment of military spouses. If they see that you are asking if your candidates are military spouses and you know that and you do not hire a person, you are opening yourself up, I believe, for unnecessary concern on behalf of the OFCCP. Do you agree?
John C. Fox:
I agree and I think we ought to note that the VEVRAA Focused Reviews have not yet begun. The Scheduling Letter that OFCCP has sent to the Office of Management and Budget, that arm of the White House that approves all paperwork of the federal executive agencies, has not yet approved the scheduling letter for the VEVRAA audits, all of which are going to be focused reviews. We understand from a September supplement to the March 2019 CSAL that there will be 500 of these in 2020 to start whenever the audit scheduling letter is approved.
Now something is hung up there. It’s not getting done. It’s way overdue. They had wanted to launch this on Veteran’s Day as you might imagine, very appropriate, but that’s come and gone and now it’s two months in the rear-view mirror at this point and they still don’t have that approved. So, there’s a hang up there. But when they do start, they are going to check in on this spouse issue. And so, the admonition I would give to everybody is to train your recruiters as to how to answer the question about whether they hire military spouses. What many of them might confuse is their reluctance to hire somebody who is a part time or short time employee as opposed to refusing to hire somebody who is a military spouse. Those are two different things.
Listen to the full episode to hear these experts dig further into what’s to come in 2020 and be sure to subscribe to be notified of new episodes of DE Talk via email or via SMS message by texting DETALK to 55678.
Stay tuned for next month’s episode as we featured a discussion from VP of Partnership Shannon Offord on diversity in the workplace!
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