Department of Labor misinterprets VEVRAA, weakening veteran hiring requirements

A statute first passed to assist Vietnam veterans in getting jobs has been amended several times over the decades. Today, the statute's protections extend to all veterans who served during a war, campaign or expedition for which a campaign badge has been authorized or who separated from the military within the previous three years, not just Vietnam veterans. The statute is supposed to require federal contractors to hire veterans. But the Department of Labor has either intentionally or negligently misinterpreted the statute by issuing a regulation and instituting procedures that excuse contractors and federal agencies from following the law.

The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)

In 1971, just prior to the first version of the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C. § 2012 (now § 4212), President Richard Nixon issued Executive Order 11598, stating: "Large numbers of veterans are now leaving the Nation's armed forces, and many of them have been encountering severe difficulties in making the transition to civilian life--in particular, many have found it difficult to locate and secure a job. The Nation owes these veterans not only its deepest thanks for their sacrifice and their service, but also its assistance in their efforts to resume normal civilian activities."

VEVRAA states that any contract of a certain amount entered into by any department or agency of the U.S. for the procurement of personal property and nonpersonal services, including construction, for the United States, shall contain a provision requiring that the party contracting with the United States take affirmative action to employ and advance in the employment of "covered veterans." VEVRAA is one of the few remaining federal statutes permitting affirmative action in hiring by federal contractors since Executive Order 14173 was enacted last Jan. 21.

Those words "covered veterans" are in quotes because that's the heart of the problem caused by the Department of Labor. It has substituted the words "protected veterans" for the statutory words "covered veterans" in its regulation and procedures.

The Department of Labor's regulation and procedures    

The very first sentence of the Department of Labor's regulation implementing VEVRAA, 41 C.F.R. § 60-300.1, completely misstates the statute and is misleading to both veterans and employers. It states that VEVRAA "prohibits discrimination against protected veterans." Note that the statute does not contain the words "discrimination" or "protected."

There's a huge difference between a statute mandating affirmative action to employ "covered" veterans and a regulation that prohibits "discrimination" against "protected" veterans.

Why the regulation and procedures make a difference

There are several reasons why the Department of Labor's wrong and misleading regulation and procedures harm veterans, including:

1. Employers are not applying the statute

The Department of Labor's language change from the VEVRAA statute to its regulation has obviously confused employers. The agency's language also provides cover for employers who do not follow VEVRAA because it puts the federal contractor in the position of simply passing the misinformation of the Department of Labor on to the veteran applying for a job.

Let's look at the job application language of a few federal contract employers.

Meta

"Information will be kept confidential, used only for legitimate business purposes, and will never be used in making any employment decisions.   

Indicate your Protected Veteran Status:

• I identify as one or more of the classifications of protected veteran listed

• Other veteran

• I am not a protected veteran

• I choose not to disclose."

It is clear that Meta is following the defective regulation and not the statute in its use of the word "protected" instead of "covered." Also, Meta's use of the category "Other veteran" is confounding. Who knows what that means?

And for Meta to say the applicant's veteran status "will never be used in making any employment decisions" is clearly contrary to the statutory intent of VEVRAA, which is that federal contract employers must use the applicant's veteran status in making employment decisions. That is, federal contractors are supposed to take affirmative action to hire qualified veterans.

Lockheed Martin

"Protected Veteran

• I AM NOT A PROTECTED VETERAN/I PREFER NOT TO ANSWER

• I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF PROTECTED VETERAN LISTED ABOVE."

Once again, it is clear the employer is following the incorrect language of the regulation and not the statute. As noted, the word "protected" does not appear in VEVRAA.

Booze Allen

As one of its self-identifying choices, this employer provides: "I am not a veteran, protected or otherwise."

This employer also uses the non-statutory language "protected" preferred by the Department of Labor over the statutory language "covered."

2. Both government workers drafting federal contracts and veterans seeking jobs are given the wrong information in the Labor Department's Sample Invitation to Self-Identify

The Department of Labor provides a "Sample Invitation to Self-Identify" for veterans applying to work for a federal contractor. It misleads government workers who prepare federal contracts on behalf of the government where it states: "VEVRAA requires Government contractors to take affirmative action to employ and advance in employment protected veterans." But what VEVRAA actually says is that federal contracts "shall contain a provision requiring that the party contracting with the United States take affirmative action to employ and advance in employment qualified covered veterans." By eliminating the responsibility for federal government workers to make sure all federal contracts contain such a provision, this procedure relieves government workers of their mandate to make sure veterans are given their rights under VEVRAA.

As to veterans trying to land a job, the "Sample Invitation to Self-Identify," provided to employers to copy and use, gives the following choices to veterans when filling out a job application:

[  ]  I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF PROTECTED VETERAN LISTED BELOW

[  ]  I AM NOT A PROTECTED VETERAN

[  ]  I DO NOT WISH TO ANSWER

Note that the questions do not ask anything about a "covered" veteran. This change of language from "covered" in the statute to the Department of Labor's preferred language of "protected" leaves a lot of room for a veteran applying for a job with a federal contract employer to assume the veteran must be disabled or discriminated against in order to qualify under VEVRAA. In fact, any veteran who served during a war, campaign or expedition or who separated from the military within the previous three years is covered under VEVRAA.

3. While not clear, there is probably no right to sue

Should a veteran want to sue an employer for not following VEVRAA, the veteran would probably not succeed, making it all the more important that the Department of Labor's regulation and procedures accurately reflect what Congress intended in the statute.

The VEVRAA statute contains an administrative remedy in 38 U.S.C. § 4212 (b). Courts are dismissing cases wherein a veteran contends an employer did not follow VEVRAA, finding veterans do not have a right to sue under the statute and are limited to making an administrative claim through the Department of Labor.

A federal circuit court affirmed dismissal of a veteran's suit under VEVRAA because the statute contains an administrative remedy in Matula v. Lower Colorado River Authority, 134 F. app'x 715, 716 (5^th Cir. 2005). In an unpublished opinion, the 4th Circuit came to the same conclusion in Armstrong v. Rolm A. Siemans Co., No. 97-1222, 1997 WL 705376.

To exacerbate the problems a veteran faces when trying to claim statutory rights, the Department of Labor's website creates barriers to even begin an administrative complaint under VEVRAA. The website states: "You must file your complaint . . . of the employer action(s) that you think were either discrimination or intimidation and interference." Such language is completely inapplicable to a veteran who was denied the affirmative action in hiring. Besides, how is the veteran supposed to know who the company hires?

An even greater barrier is that the administrative remedy leaves it up to the Department of Labor to pursue a veteran's cause. It is highly unlikely the Department of Labor would fight for a veteran and against an employer who followed the agency's own deficient regulation and procedures. Plus, the Department of Labor limits its battles to discrimination claims.

To top that off, there is no procedure for a veteran to make a claim against the federal agency entering into a contract with a federal contractor, even when that contract may lack the affirmative action part of VEVRAA. The Department of Labor only pursues claims against those who contract with the government, not those who contract on behalf of the government.

Worse yet, when the Secretary of Labor foregoes an enforcement action on behalf of a veteran, the veteran usually has no right to judicial review of the agency's decision. 806 F.2d 1402

Conclusion

VEVRAA is supposed to require government contractors to take affirmative action to hire qualified veterans. But the statute's requirement is circumvented by the Department of Labor's substituted-language regulation.  The regulation implies that the main purpose of VEVRAA is to protect certain veterans from discrimination, which would mean that employers are in compliance with VEVRAA even if they never hire qualified veterans so long as they don't discriminate against veterans.

The regulation, 41 C.F.R. § 60-300.1, was enacted in 2013 and cites three sources as its authority: 29 U.S.C. § 793 (Employment under Federal Contracts, which deals with persons with disabilities and is part of the Rehabilitation Act of 1973); Exec. Order No. 11758 (Delegating Authority of the President Under the Rehabilitation Act of 1973); and VEVRAA.

By grouping all veterans with disabled persons and persons in rehabilitation, it seems obvious why the agency opted to use the word "protected" instead of the statutory word "covered." But the two words have entirely different connotations. Webster says "covered" means being included with a group with respect to which a particular contract or agreement is in force. The same dictionary says "protected" means guarded or shielded to prevent accidental contact or injury.

Instead of simply setting forth a specific regulation for affirmative action in hiring veterans pursuant to VEVRAA, the Department of Labor tried to pigeon-hole too much into a single regulation. The result of cramming excessive sources into one regulation is that all involved, especially veterans, are misled with regard to veterans' rights under VEVRAA.

This critique of the actions of the Department of Labor assumes its rule-makers read the statute before setting forth a regulation to implement VEVRAA. However, its summary of the final rule creates doubt anyone ever actually read the statute. It falsely states VEVRAA prohibits employment discrimination against protected veterans. 41 CFR Parts 60-250 and 60-300, RIN 1250-AA00

Whether or not anyone from the Department of Labor read the statute before creating a regulation and procedures to implement VEVRAA, the end result is that veterans are not getting the affirmative action to which they are entitled.

Congress should toss the Department of Labor's regulation and procedures, and while it's at it, take a close look at VEVRAA. One suggestion is that Congress define a veteran in the way the Veterans Justice Commission recommends for the definition of a veteran: "A military 'veteran' is defined as a person who: [] Swore an oath and entered into any branch of the Armed Forces, including the National Guard or Reserve; and . . . was discharged or released from such service under any characterization of discharge that was not a dishonorable discharge, unless the individual receiving the dishonorable discharge has been diagnosed with Substance Use Disorder, Military Sexual Trauma, Traumatic Brain Injury, Post-Traumatic Stress Disorder, or a mental health condition."