20151215 unlimited end-of-year questions and answers re ofccp and ofccp's odd odyssey to expand...

SPECIAL DOUBLE-HEADER:

Unlimited End-of-Year Questions and Answers Re OFCCP

and

OFCCP’s Odd Odyssey to Expand the Definition of “Protected Veterans”

December 15, 2015

John C. Fox, Esq. Fox, Wang & Morgan P.C. 315 University Avenue Los Gatos, CA 95030 Phone: (408) 844-2360

Presented by:

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Abbreviation Key………………………………………………..………………….…... p. 3

Discussion: Questions & Answers (Any Topic)………………………………….….. p. 4

1.  The Issue: What Is OFCCP’s Definition Of The Term “During A War”?....................................................................................................................... p. 5

2.  OFCCP’s New Changed Definition Of “During A War”........................................p. 15

3.  How Much Bigger Is The “Expanded” Definition?................................................p. 21

4.  The V.E.T.S. Story: What To Do As To Self-ID Forms And VETS-4212 Forms?................................................................................................. p. 24

5.  Another Country Heard From: The US Secretary Of Labor Has Complaint Investigation Authority Pursuant to VEVRAA………………………………….….. p. 35

6.  How Do We Know OFCCP/V.E.T.S. Is In Error?.................................................. p. 37

7.  What To Do?! What To Do?!...................................................................................p. 39

8.  Does Any Of This Really Matter?..........................................................................p. 42

AGENDA

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ABBREVIATION KEY

Ø  DAW = “During a War” Ø  DAPW = “During a Period of War”

Ø  JVA = Jobs for Veterans Act Ø  Kor = Contractor

Ø  OMB = Office of Management and Budget

Ø  PVs = Protected Veterans Ø  Rule = Regulation (popular street term)

Ø  U.S.C. = United States Code Ø  US DOL = U.S. Department of Labor

Ø  V.E.T.S. = Veterans' Employment and Training Service

Ø  VETS-4212 = Annual Reporting Form Kors File

Ø  VEVRAA = The Vietnam Era Veterans' Readjustment Assistance Act

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DISCUSSION:

QUESTIONS & ANSWERS

(ANY OFCCP TOPIC)

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BACKGROUND NOTE #1: VEVRAA & OFCCP Rules both identify 4 kinds of “Protected Veterans.”

38 U.S.C. § 4212 and OFCCP’s implementing regulations both define them to be:

1.  Veterans who served on active duty in the U.S. Armed Forces during a war or in a campaign or expedition:

Ø  VEVRAA: 38 U.S.C. § 4212 (a)(3)(11);

Ø  OFCCP: 41 CFR § 60-300.2 (b)

2.  “Armed Forces service medal veteran:”

Ø  VEVRAA: 38 U.S.C. § 4212 (a)(3)(11);

Ø  OFCCP: 41 CFR § 60-300.2 (c)

1.  THE ISSUE: WHAT IS OFCCP’S DEFINITION OF THE TERM “DURING A WAR”?

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BACKGROUND NOTE #1 (con’t):

3.  “Disabled veteran:”

Ø  VEVRAA: 38 U.S.C. § 4212 (a)(3)(i);

Ø  OFCCP: 41 CFR § 60-300.2 (i)

4.  “Recently separated veteran:”

Ø  VEVRAA: 38 U.S.C. § 4212 (a)(3)(iv);

Ø  OFCCP: 41 CFR § 60-300.2 (u)

1.  THE ISSUE: “DURING A WAR” (CON’T)

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BACKGROUND NOTE #2: Veterans who served “during a war” are one type of Protected Veteran

(A) The statute OFCCP is implementing is:

VEVRAA = 38 U.S.C. 4212 (a)(3)(A)(ii)

“(3) In this section:

(A) The term ‘covered veteran’ means any of the following veterans:

* * * * *

(ii) Veterans who served on active duty in the Armed Forces during a war (emphases added) or in a campaign or expedition for which a campaign badge has been authorized.”


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(B) “War” is a defined legal term

“War” means those military conflicts declared to be war by a Joint Resolution of Congress. There is universal agreement that the last “war” involving the United States was World War II.

Hence, the need for federal contractors to report any veterans of WWII in their employ as a Protected Veteran.

(While there are over 800,000 living U.S. WWII veterans, some still employed, there are no more survivors of WWI alive at this time. Frank Buckles, the last known survivor of the US Armed Forces who served in WWI, died in 2009.)


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(C) The Rule OFCCP is implementing states:

“Active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war (emphasis added) or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.” 41 CFR § 60-300.2 (c)


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(D) OFCCP’s Complaint FAQ for Protected Veterans:

One of OFCCP’s three FAQs (the complaint FAQ) adopts the statutory and regulatory “during a war” definition of PV pursuant to 38 U.S.C. §4212 (a)(3):

“Who can file a complaint under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C. § 4212), as amended (VEVRAA)?

Any applicant for employment with a contractor, or any employee of a contractor, who believes he or she is a veteran who may be protected under VEVRAA may file a complaint alleging a violation of the Act.”


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(D) OFCCP’s Complaint FAQ (con’t):

* * * * * * * *

“JVA (Jobs for Veterans Act) eliminated the coverage category of veterans of the Vietnam era (emphases added), added a new category of Armed Forces Service Medal veterans, expanded the coverage of veterans with disabilities to include all veterans with service connected disabilities, and expanded the coverage of recently separated veterans from one year after discharge or release from active duty, to three years. Many individuals previously categorized as Vietnam era veterans will continue to be covered under other categories (e.g., campaign veterans) (emphases added). If a contractor has contracts that were entered prior to December 1, 2003, the effective date of the JVA amendments, the following categories of veterans are protected under VEVRAA:


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(D) OFCCP’s Complaint FAQ (con’t):

* * * * * * * * *

Campaign veterans - veterans who served on active duty during a war (emphases added) or in a campaign or expedition for which a campaign badge was authorized. A list of covered campaigns is provided at the Office of Personnel Management's Web site.

* * * * * * * * *

If a contractor has contracts entered on or after December 1, 2003, the following categories of veterans are protected under VEVRAA:

* * * * * * * * *

Campaign veterans - same definition as under pre-JVA amendments.


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(E) OFCCP’s Preamble to its Final 4212 Rule (Sept. 24, 2013 Rejected a Broadened Definition:

“One commenter suggested that OFCCP expand the types of veterans protected under VEVRAA to include Desert Storm-era veterans, veterans that served in a war zone and veterans who utilize service dogs. The categories of “protected veterans” are not set by OFCCP, but rather are defined by the VEVRAA statute codified at 38 U.S.C. 4212(a)(3) (emphasis added). OFCCP cannot expand the categories beyond those set forth in the statute. We note that most of the types of veterans listed above are protected by the categories of veterans set forth in the statute. Veterans that served in the Desert Storm-era or otherwise in a war zone likely will be protected under the “active duty wartime or campaign badge veteran” category of protected veteran, and possibly the “recently separated veteran” category as well.”

See,78 Federal Register 185,at page 58621, middle column, middle.


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(E) OFCCP’s Preamble to Final 4212 Rule (con’t):

So, OFCCP not only (properly) concludes that its definition is taken from 38 U.S.C. § 4212 (a)(3) but that Desert Storm-era veterans (aka the Persian Gulf War) are not covered Protected Veterans who served “during a war” but could nonetheless be covered under an alternative definition covering campaign badge holders or recently separated.


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2.  OFCCP’S NEW CHANGED DEFINITION OF “DURING A WAR”

OFCCP’s recent “Infographic” suddenly defined a “Protected Veteran” as a veteran who served “during a period of war,” citing to 38 U.S.C. § 101

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2.  OFCCP’S CHANGED DEFINITION (CON’T)

Emphasis added

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OFCCP last week (12/7/15) published two new FAQs seeking to “clarify” its position as to the “during a war” definition:

“Protected Veteran Infographic

1. Does the Infographic change the definition of “protected veteran” as defined in VEVRAA?

No. The definition of "protected veteran" is established in the statute and cannot be changed by OFCCP. A veteran is a "protected veteran" under VEVRAA if he or she falls into one or more of the following categories: disabled veteran; recently separated veteran; active duty wartime or campaign badge veteran; or Armed Forces service medal veteran. The infographic does not change these categories. (Emphasis added) Rather, it clarifies which veterans are included in each category of protected veteran so that veterans will be able to determine, as a practical matter, whether they are protected by VEVRAA.”


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Protected Veteran Infographic (con’t.)

“2. The Infographic’s description of an "active duty wartime" veteran is broader than what many previously understood. How did OFCCP determine the scope of this category of protected veteran?

The statute and regulations define an "active duty wartime" veteran as a veteran who served on active duty in the U.S. military during a war. Title 38, the title of federal statutes where VEVRAA is located, defines "period of war" as including World War II, the Korean conflict, the Vietnam era, and the Persian Gulf War, which is defined as August 2, 1990, to the present. Therefore, a veteran who served on active duty during any of those periods (and was not dishonorably discharged) is an "active duty wartime" veteran under VEVRAA. This is the same approach taken by the Department of Veterans Affairs (VA), which administers most of the provisions in Title 38, when determining eligibility for various veteran benefits. See, for example, http://www.benefits.va.gov/pension/wartimeperiod.asp, listing the wartime periods eligible for VA pension benefits.”(Emphases added)


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38 U.S.C. 101 “(11) The term “period of war” means the Spanish-American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War (emphases added), and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.”

NOTE 1: The United States offensive during the “Persian Gulf War” was known as Operation Desert Storm.

NOTE 2: The Congress created the 38 U.S.C. 101 definition not for reporting but rather to identify veterans eligible for certain pension benefits and for employment preferences.

NOTE 3: Infographics and FAQs do not have the binding force and effect of law. Rather, they are mere agency interpretations of the laws they enforce. Statutes obviously do, and OFCCP’s 4212 Rules do too.


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NOTE 4: “During a period of war” was not OFCCP’s definition in 1996, 2002 or as of March 24, 2014 (when OFCCP’s VEVRAA Rule became legally effective).

CONCLUSION: So, what OFCCP has done is to change the term (whoops, I mean “clarify”) “during a war” to mean “during a period of war.”

2. OFCCP’S CHANGED DEFINITION (CON’T)

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Some pundits estimate the expansion of the Protected Veterans definition (by changing “during a war” pursuant to 38 U.S.C. 4212 (a)(3) to mean “during a period of war” pursuant to 38 U.S.C. 101) will add over three million more veterans to the Protected Veterans category.

So, there is no question that:

“during a war” and “during a period of war” are very different databases.

3.  HOW MUCH BIGGER IS THE “EXPANDED” DEFINITION?

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Here is what the “during a period of war” definition adds to OFCCP’s/V.E.T.S.’ “during a war” Rules:

Ø  Korean Conflict (June 27, 1950 – January 31, 1955)

Ø > 2.2M living veterans

Ø  Vietnam Era (February 28, 1961 – May 7, 1975)

Ø  Tonkin Gulf Resolution (August 10, 1964 – January 12, 1971)

Ø  Conflicts in Lebanon 1982–1983 (August 21, 1982 – September 29, 1982)

Ø  Grenada (October 1983)

3.  THE “EXPANDED” DEFINITION (CON’T)

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OFCCP’s/V.E.T.S.’ “during a war” Rules (con’t):

Ø  Persian Gulf War (August 2, 1900 – Present)

Ø  Began with Operation Desert Storm

Ø  Afghanistan – Operation Enduring Freedom (October 7, 2001 – December 28, 2014)

Ø  Afghanistan – Operation Freedom’s Sentinel (January 1, 2015 – December 28, 2015)

Ø  Iraq – Operation Iraqi Freedom (May 1, 2003 – August 31, 2010)

Ø  Iraq – Operation New Dawn (September 1, 2010 – December 15, 2011)

NOTE: Come back to these pages to help you expand your definitions of Protected Veterans IF you publish PV definitions on your Self-ID forms (recommended).

3.  THE “EXPANDED” DEFINITION (CON’T)

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A.  OFCCP’s Protected Veteran Self-ID Form

OFCCP’s Self-Identification Rule requires contractors to make Pre-Offer and Post-Offer inquiries as to whether the new-hire is a Protected Veteran. 41 CFR Section 60-300.42.

Also, separately, the Veterans Employment and Training Service (V.E.T.S.) requires Kors to annually report PV headcount (currently, on a VETS-4212 form).

4.  THE V.E.T.S. STORY: WHAT TO DO AS TO SELF-ID FORMS AND THE VETS-4212 FORM

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A. OFCCP’s Self-ID Rule (con’t)

Next, OFCCP’s Self-ID Rule follows V.E.T.S.’ Definition of Protected Veterans:

“§ 60-300.42 Invitation to self-identify.

* * * * * * *

(b) Post-offer. In addition to the invitation in paragraph (a) of this section [Fox: That is the Pre-Offer Rule], the contractor shall invite applicants to inform the contractor whether the applicant believes that he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report pursuant to 41 CFR Part 61-300.” Emphasis Added.

(Note: “Part 61” is a V.E.T.S. Rule, not an OFCCP Rule.)

4.  THE V.E.T.S. STORY (CON’T)

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B. The V.E.T.S.’ Reporting Definition Is Also “during a war”:

41 CFR § 61-300.2 (b)(1) Active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war (emphases added) or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.”


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C. V.E.T.S.’ position now follows OFCCP’s change A senior official of V.E.T.S., speaking for V.E.T.S., has said only that: “As we and OFCCP explained…, our respective regulations (emphasis added) interpret VEVRAA in the same manner.”

That, of course is a technically true statement since it refers to OFCCP’s and V.E.T.S.’ “regulations” which describe the 4 major categories of Protected Veterans VEVRAA (the statute) sets out. It is also very disconcerting and problematic for Kors that V.E.T.S. has declined to answer two important questions, though:

1.  “Do I understand then that V.E.T.S. requires federal contractors to report veterans on the VETS-4212 form who served during a “period of war” as defined in 38 USC 101?

2.  If so, does VETS expect federal contractors to correct their just filed VETS-4212 forms to report those veterans covered by 38 USC 101 if the contractor reported only veterans covered by 38 USC 4212(a)(3)?”


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C. V.E.T.S.’ position now follows OFCCP’s change (con’t)

Nonetheless, the V.E.T.S. senior official expressed support for OFCCP’s Infographic and its two new FAQs (which clearly adopt 38 U.S.C. 101’s “during a period of war” expanded definition).

Conclusion: While it’s “sketchy” (technical legal term!) given V.E.T.S.’ incomplete statement of position, it appears V.E.T.S. would not only allow federal Kors to file their V.E.T.S. 4212 forms using the expanded 38 U.S.C. § 101 definition, but would REQUIRE Federal Kors to use the expanded definition.

NOTE: I have similarly asked Pat Shiu whether OFCCP’s “clarification” is that Federal Kors “must” or “may” use the expanded 38 USC 101 definition as to OFCCP compliance. No response, yet. But, the OFCCP Infographic, fairly read although not explicit, implies mandatory use of the expanded definition.

D. Are VETS-4212 Corrections Required?

QUESTION: Do federal Kors now have to correct their mis-filed VETS-4212 and VETS-100A reports which did not use the 38 U.S.C. 101 “period of war” definition?


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D. Are VETS-4212 Corrections Required (con’t)? I think it is more likely than not that the answer is no, for 4 different reasons, although it would have been nice for V.E.T.S. to answer that question (thus suggesting it is a difficult issue for V.E.T.S.):

1)  V.E.T.S. is not auditing the VETS-4212 reports (even apart from the fact V.E.T.S. did not even notice that millions of 38 U.S.C. 101 veterans have gone unreported for decades);

2)  V.E.T.S. has no mechanism to receive corrected VETS-4212 reports;

3)  Almost every contractor would have to survey its workforce just to gather the information to report against V.E.T.S.’ new 38 U.S.C. 101 definition (I mean “clarification”); and

4)  This change of position (which OFCCP/V.E.T.S. now seek to cast off as a mere “clarification”) is sufficiently awkward and embarrassing that I do not think V.E.T.S. will attempt to push the issue further to further rile and roil federal contractors and provoke congressional investigation.


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E. Is OFCCP Now Going To Bust You? QUESTION: Will OFCCP now require federal Kors to sign Conciliation Agreements in OFCCP audits which reveal the Kor has under-reported PVs (from OFCCP’s new perspective) based on the (old) narrower (“during a war”) definition?

OFCCP should do so, of course, if it truly believes its Infographic and 2 new FAQs. However, I speculate OFCCP will not do so. See answer #4, above, as to why OFCCP, like V.E.T.S., will likely not sanction Federal Kors for under-reporting. OFCCP faces the same potential for embarrassment and uproar as V.E.T.S.


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How does your company currently invite Protected Veterans to self-identify POST-OFFER? (Pick one)

1)  We simply ask them to identify themselves as PVs, but do not state the 4 categories of PV.

2)  We state only the 4 categories of PVs, but provide no definitions of what those terms mean.

3)  We state the 4 categories and publish the definitions of each category.

POLL QUESTION #1

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Do you invite ALL veterans to identify regardless whether they are a Protected Veteran?

Yes No

POLL QUESTION #2

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Did you report on your VETS-100A form veterans who have served “during a period of war?”

Yes

No

Did not ask our new hires

POLL QUESTION #3

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Did you report on your VETS-4212 form veterans who have served “during a period of war?”

Yes

No

Did not ask our new hires

POLL QUESTION #4

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38 U.S.C. 4212 (b) “If any veteran covered by the first sentence of subsection (a) [Fox: including the “during a war” veteran] believes any contractor of the United States has failed to comply or refuses to comply with the provisions of the contractor’s contract relating to the employment of veterans, the veteran may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations.”

5.  ANOTHER COUNTRY HEARD FROM: THE US SECRETARY OF LABOR HAS VEVRAA COMPLAINT INVESTIGATION AUTHORITY

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Absent the Secretary’s exercise of his discretion to not prosecute contractor’s for violating OFCCP’s VEVRAA Rule and the V.E.T.S.’ annual veteran reporting Rule (VETS-4212), a 4212(a)(3) covered veteran could file a Complaint with The Secretary to compel the contractor to properly report veterans pursuant to OFCCP’s/V.E.T.S.’ Rules but not its Infographic/FAQs which are unfaithful to both Rules and VEVRAA.

– How ironic would that headline be: “Contractor Found Guilty Of Not Complying With Veterans’ Regulations.”

5.  ANOTHER COUNTRY HEARD FROM (CON’T)

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1)  VEVRAA, through the Jobs for Veterans Act, eliminated Vietnam Era Veterans from the definition of Protected Veterans, as we all know, and OFCCP’s Final VEVRAA Rule explicitly so acknowledges (see PPT 11, above). BUT, 38 U.S.C. 101 (OFCCP’s new definition) specifically includes all (each and every) Vietnam Era Veteran regardless whether they qualified for a campaign or expedition badge (many did; many did not). So, Congress took them out of the definition of Protected Veteran and OFCCP has now put them back in? Huh? Really?

2)  OFCCP’s Preamble to its Final VEVRAA Rule noted OFCCP had declined to expand the definition of Protected Veteran to cover Desert Storm veterans (aka Persian Gulf War veterans) as having served “during a war,” although OFCCP noted that alternative definitions of PVs might pick up many Desert Storm veterans (some got campaign/expedition badges and some might become recently separated).

NOTE: If OFCCP thought in 2013 (when it published its Preamble) that Desert Storm veterans were covered because they served during a “period of war,” there would have been no need for OFCCP to speculate about possible alternative coverage theories.

6.  HOW DO WE KNOW OFCCP/V.E.T.S. IS IN ERROR?

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3)  Neither VEVRAA nor OFCCP’s/V.E.T.S.’ Rules refer to a “period of war” (which is almost as easy to write as “during a war.”

4)  Tens of thousands of contractors and thousands of HR consulting firms and law firms couldn’t be wrong, could they?

NOTE: I do not believe any of the HR consulting firms (subject to “professional negligence” statutes in over 30 states) or the law firms which have advised clients on these issues to the contrary over the years are guilty of malpractice.

This is clearly a change of position at OFCCP/V.E.T.S. (and without legal authority, which is all the more puzzling as to why OFCCP/V.E.T.S. have changed their minds).

NOTE: Why is OFCCP making this change now?

6.  OFCCP/V.E.T.S. IS IN ERROR? (CON’T)

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Option 1: Do nothing different from your past practice, but consider:

Ø  OFCCP audit risk (low: OFCCP has not noticed under-reporting) for almost 20 years now)

Ø  VETS-4212 reporting error risk (low, even after 2016)

Option 2: Apply the expanded 38 U.S.C. 101 definition (as most of you will elect to do):

(1)  Change the definitions (if you supply them, as most of you do) on your Pre-Offer and Post-Offer Self-ID forms to invite the broadened group of veterans to self-identify.

NOTE 1: The OFCCP/V.E.T.S. terminology is confusing to OFCCP and V.E.T.S. as it is (as you can see): not known at all to most veterans. Good to publish definitions (not required, though)

NOTE 2: There is no inherent need to change your company’s otherwise good Self-ID form’s list of the 4 categories of PVs (since OFCCP/V.E.T.S. has not changed them).

7.  WHAT TO DO?! WHAT TO DO?!

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Option 2: Apply the expanded definition (con’t) (2) Broaden your reporting to OFCCP on your “Effectiveness Review” via your .44 (k) Data Metrics by capturing those percentages of veterans applying and hired using the broader definition.

�  NOTE: If one of the 3 Million+ 38 U.S.C. 101 veterans files a Complaint against your company, object to OFCCP that OFCCP lacks jurisdiction to investigate/prosecute the Complaint and OFCCP must forthwith dismiss it (because OFCCP’s Rules do not include 38 USC 101 veterans).

(3) TIMING: Convert your Self-ID definitions now (i.e. soon), if you provide definitions:

�  No need to advise OFCCP (as to your “Effectiveness Review”) or V.E.T.S. (as to the 2016 VETS-4212 report) [you could drop a footnote about the date of your conversion to the broadened definition if you wished to do so, but that would be entirely unnecessary].

7.  WHAT TO DO?! (CON’T)

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7.  WHAT TO DO?! (CON’T)

(4)  You could (but do not have to do so) survey your incumbent employees for VETS-4212 reporting to see if any additional veterans now identify in response to the broadened definition.

�  Why don’t you have to re-survey?

1)  The V.E.T.S. change is in error and illegal (see Section 6 above);

2)  OMB is loathe to approve or require surveys;

3)  V.E.T.S. does not currently require re-survey, for example, as to recently separated veterans dropping out of the definition of PV annually.

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QUESTION: At the end of the day, does any of this really matter and affect either the quality of your compliance with OFCCP’s Protected Veterans Rules or cause more Protected Veterans to be hired who would not otherwise have been hired? ANSWER: No and no. Even if the numbers of Protected Veterans you now report to OFCCP and to V.E.T.S. using the broadened definition increase (for most of you, it will not “move the needle” much, though), so what? You will still have to do outreach and recruitment pursuant to OFCCP’s new “Effectiveness Review” requirement EVEN IF YOU MEET OR EXCEED THE Protected Veteran BENCHMARK for hiring!

8. DOES ANY OF THIS REALLY MATTER?

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What matters is what YOU do to recruit, hire, train and promote Protected Veterans...

AND TAKE A BOW NOW!

Veteran unemployment rate Nov 2015: 3.6% !!!!! http://www.militarytimes.com/story/veterans/2015/12/04/november-veterans-unemployment/76773968/

Lowest veteran unemployment rate since 2007: 7 year low.

NOTE: 4% is considered full employment in the United States (4% unemployment is considered structural unemployment: 4% of Americans are constantly changing jobs.)

8. DOES ANY OF THIS REALLY MATTER? (CON’T)

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THANK YOU!

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QUESTIONS?

20151215 unlimited end-of-year questions and answers re ofccp and ofccp's odd odyssey to expand...

Recruiting & HR