On December 9, 2015, the Office of Federal Contract Compliance Programs (OFCCP) posted two new Frequently Asked Questions (FAQs) clarifying the definition and interpretation of “Protected Veteran” and specifically the category of “Active Duty Wartime or Campaign Badge Veteran” as defined in VEVRAA. The FAQs can be found in the Protected Veteran Infographic section of the OFCCP’s VEVRAA FAQ page at: http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm. Scroll down to the new FAQs which are designated with “NEW” highlighted in yellow.
The FAQs were published in response to several discussions related to the “Am I a Protected Veteran?” infographic released by the OFCCP in August. Many questioned whether or not the definitions of the categories of Protected Veterans were being changed. The first FAQ addresses this and states, “[t]he infographic does not change these categories. 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”. Under the Active Duty Wartime or Campaign Badge Veteran heading, the infographic asks the reader if they have served on active duty during one or more of the periods of war outlined in 38 U.S.C. § 101. The referenced federal regulations define “period of war” to include the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, and the Gulf War, which is defined as August 2, 1990, to the present. According to the newly updated FAQs, “[t]herefore, 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 the definitions on the U.S. Department of Veterans Affairs website at: http://www.benefits.va.gov/pension/wartimeperiod.asp. We are now including this link in our sample Invitations to Identify as a Protected Veteran. Our sample Invitation, which can be used at both the pre-offer and post-offer stage, does not ask for the specific category of protected veteran and can be found at: https://gbcs.net/wp-content/uploads/2014/03/SAMPLE-PRE-OFFER-AND-OPTIONAL-POST-OFFER-INVITATION-TO-IDENTIFY-AS-A-PROTECTED-VETERAN-rev-1-2-15-website.pdf. Our sample post-offer Invitation, which does ask for the specific veterans category, can be found at: https://gbcs.net/wp-content/uploads/2014/03/OPTIONAL-POST-OFFER-INVITATION-TO-IDENTIFY-AS-A-PROTECTED-VETERAN.pdf. In January 2015 the OFCCP clarified that contractors are no longer required to solicit the specific Protected Veteran category, and may use the pre-offer invitation at both the pre- and post-offer stages.
This change in the interpretation of the definition is particularly important for contractors to be aware of because the expanded interpretation means anyone who has served since August 2, 1990 now falls into the Active Duty Wartime or Campaign Badge veteran category and should be included in the count of Protected Veterans. This will most likely increase the number of applicants and employees who identify as a Protected Veteran and impact on the Hiring Benchmark Analysis. It would also most likely increase the number of applicants and employees who could file a discrimination complaint based on protected veteran status.
Please contact us by calling (732) 446-2529 or sending us an e-mail at firstname.lastname@example.org if you are interested in discussing the definitions of a protected veteran.