Since 2009, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has been very interested in issues concerning the veterans that are protected under the agency’s affirmative action regulations. These regulations cover four categories of veterans, three of which are disabled veterans, recently separated veterans, and armed forces service medal veterans. Until recently, the fourth category was called “other protected veterans.” The name of this last category caused a certain level of confusion for federal contractors and subcontractors. OFCCP’s regulations provided what seemed to be a clear definition for “other protected veteran,” but many people assumed that this category was some kind of “catch-all” meant to provide protection for veterans who did not fall into one of the other three categories.

“Other Protected Veteran” Becomes “Active Duty Wartime or Campaign Badge Veteran”

As part of the revisions to OFCCP’s veterans regulations that went into effect in March of 2014, the agency changed the category name “other protected veterans” to “active duty wartime or campaign badge veteran.” The agency did so in part to deal with the belief that “other protected veteran” was a catch-all category. While the new name provides a better sense of which veterans are included in the category, the formal definition of which veterans fall within this category did not change. That definition is as follows:

A veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.

OFCCP Infographic Changes Interpretation of Who is an “Active Duty Wartime or Campaign Badge Veteran”

In August of 2015, OFCCP released an infographic that was meant to help veterans determine whether or not they are protected by the federal affirmative action regulations. One of the questions on the infographic is this:

Did you serve on active duty during one or more of the periods of war outlined in 38 U.S.C. Section 101?

The infographic has footnotes regarding this question that appear to dramatically change the established interpretation of the category “active duty wartime or campaign badge veteran.” The footnotes mention several specific periods of war, including the period from August 5, 1964 to May 7, 1975 (i.e. the Vietnam era), and the period from August 2, 1990 until the present (i.e. the Persian Gulf War era).

The language used in OFCCP’s veterans regulations regarding who is covered as an “active duty wartime or campaign badge veteran” is slightly different than the language used on the infographic.
 

• OFCCP’s veteran regulations use the phrase “served on active duty in the U.S. military, ground, naval or air service DURING A WAR” [emphasis added] to define which veterans are covered as “active duty wartime” veterans.
• The infographic substitutes the phrase “Did you serve on active duty during one or more PERIODS OF WAR” [emphasis added] to help define which veterans are covered as “active duty wartime” veterans.

While the distinction between “served on active duty...during a war” and “served on active duty during one or more...periods of war” may seem trivial, it appears to have significantly expanded the interpretation of “active duty wartime or campaign badge veterans.” Previously, OFCCP seemed to interpret the classification “active duty wartime or campaign badge veterans” as including veterans who were potentially in harm’s way. OFCCP’s infographic suggests that someone who served during a time when a military conflict was occurring should also be considered an “active duty wartime or campaign badge veteran,” regardless of whether the veteran was in harm’s way during his or her service.

Infographic States That All Vietnam Era Veterans and All Veterans Who Have Served Since August 2, 1990 are “Active Duty Wartime or Campaign Badge Veterans”

There are two groups of veterans who seem to be particularly affected by OFCCP’s infographic. One group consists of the veterans who served during the Vietnam era. OFCCP’s veterans regulations originally had a specific category called “Veteran of the Vietnam Era” that covered ALL veterans who served during the Vietnam era. The category “Veteran of the Vietnam Era” was removed from most of OFCCP’s veterans regulations in 2007. Veterans who were awarded a campaign badge for active service in Vietnam and the surrounding countries were still covered by the affirmative action regulations as “other protected veterans.” However, it appeared that veterans who were not in harm’s way during this period were no longer covered. According to the infographic, the Vietnam era veterans who appeared to have lost coverage are actually still covered under these regulations.

The other group of veterans who are particularly affected by the infographic are veterans who have served since August of 1990. Until the release of the infographic, it appeared that veterans who did not specifically serve in Iraq, Afghanistan, or another area where they were in harm’s way were not covered as “other protected veterans” (i.e. “active duty wartime or campaign badge veterans”). Now, all veterans who have served on active duty since August of 1990 appear to be covered under the federal affirmative action regulations.

What Actions Should Federal Contractors and Subcontractors Take?

Effectively, OFCCP’s infographic has greatly expanded the number of applicants and employees who might be considered protected veterans under the federal affirmative action regulations. OFCCP’s preamble to the revised veterans regulations that went into effect in 2014 claimed that the category now called “active duty wartime or campaign badge veteran” was changed from “other protected veteran” because federal contractors and subcontractors erroneously thought the “other protected veteran” category was a “catch-all.” Under OFCCP’s infographic, “active duty wartime or campaign badge veteran” does effectively become a catch-all for many veterans, including all veterans who served during the Vietnam era and all veterans who have served since the start of combat activities in the Persian Gulf.

Since OFCCP demands that federal contractors and subcontractors show results from their outreach efforts to recruit and hire protected veterans, this expanded interpretation of “active duty wartime or campaign badge veteran” may be of significant help to employers. More applicants and employees are potentially covered under this revised interpretation, and more applicants and employees may be willing to self-identify as a protected veteran.

In light of the expanded interpretation of “active duty wartime or campaign badge veteran,” federal contractors and subcontractors should consider:
 

• Revising self-identification forms for applicants. Self-identification forms used to collect information on veteran status from applicants should indicate that “active duty wartime or campaign badge veteran” includes the periods of war found on the infographic. The two most prominent periods of war to include are the Vietnam era and the Persian Gulf War era.


• Revising self-identification forms for employees. Again, survey forms used to collect information on protected veteran status should include something about the periods of war noted on the infographic.


• Re-surveying the workforce. While most companies have recently undergone a re-survey of the workforce to collect information on disability status (and perhaps other demographic information), a second re-survey of the workforce might be valuable in order to give employees an opportunity to self-identify under the new interpretation of “active duty wartime or campaign badge veteran” found on the infographic.

OFCCP’s infographic on protected veterans can be found at the following location:
https://www.dol.gov/ofccp/posters/Infographics/ProtectedVet_InfoGraphic_JRFQA508c.pdf

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2016