Laws > Regulations: A Simple But Important Concept
Look At This Graphic I Copied
Before we delve, pIease check out this visual aid I took from a Department of Health and Human Services website. If they want it back, we can talk. The point is to clarify the difference between VEVRAA, a law passed by Congress and signed by the President, and the regulations the Department of Labor unilaterally put in place to guide its enforcement of the law. While regulations drafted by federal agencies carry the force of law, they do not take precedence over actual statutes. Now that you and I both know this, somebody has to explain it to the DoL.
COMPLAINING ABOUT COMPLAINTS
In Which The Complaint Process Turned Into A Complaint About the ComplAint Process
For reasons I have explained elsewhere, I found the OFCCP's response to my VEVRAA complaints, and their entire process...disappointing. My next move was Let Me Speak To Your Manager. Because the OFCCP is a division of the Department of Labor, I used their Whistleblower Hotline site. It gets a little snippy by the end. I regret nothing.
The Plot Thins
In Which The DoL Talks About Law
In Which the DOL Talks About Regulations
In Which the DOL Talks About Regulations
This is key paragraph number 1 in the OFCCP response letter above. Here they cite VEVRAA itself--aka, The Law--and they explain, correctly, what the statute is supposed to do. To wit, assist covered veterans in gaining employment.
In Which the DOL Talks About Regulations
In Which the DOL Talks About Regulations
In Which the DOL Talks About Regulations
This is key paragraph number 2 in the OFCCP response letter. Here they are talking about regulations, which, as we know from the graphic above, are subordinate to the law itself. We also know, because literacy, that despite what they say here, it is incorrect to claim that VEVRAA "prohibits discrimination against protected veterans," insofar as "discrimination" and "protected veterans" are not mentioned in the statute. Nor have they ever been.
Things Fall Apart: A Timeline
This how VEVRAA worked from 1974 until 2007, despite several amendments. The Uniformed Services Employment and Reemployment Rights Act (USERRA) was a welcome piece of legislation in 1994 but it fulfilled a separate function--prohibiting employment discrimination against veterans. Its purpose did not overlap with VEVRAA's.
In 2007, the Department of Labor added a new regulation governing VEVRAA enforcement. "Covered veteran"--the term that actually appears in the law--is used as well, but no explanation is given for why the new term was chosen. The closest we get is, "for the sake of clarity and consistency," which is either Orwellian or Kafkaesque. Regardless, it turned VEVRAA into a redundant form of USERRA, leaving employment benefits by the wayside.
Before the 2007 regulation was finalized, the Department of Labor issued a Notice of Proposed Rulemaking (NPRM) in 2006. It gave interested parties a chance to provide input on the final rules. This NPRM introduced the term "protected veteran" into the VEVRAA statutory and regulatory oeuvre. Without explanation.
The final rules detail some of the input provided in response to the NPRM. One particular commenter--not one representing the interests of veterans--appears to have been particularly influential. This unnamed commenter appears to have created the phrase, "protections of the affirmative action provisions." I say created because I have not been able to find affirmative action provisions described as "protections" anywhere, ever. Also I don't get it.
Let's try this metaphor: sunglasses protect you from glare or whatever, while prescription glasses give you the benefit of improving your vision. If you say that prescription glasses protect you from not seeing, you sound like a maniac. VEVRAA is supposed to help your myopia and the DoL says that it's actually a pair of clear-lensed sunglasses.
By the time the next NPRM rolled around in 2011, the damage was done. Eliminating "covered veterans" entirely was proposed--as a "minor language change." The final rule, in 2013, used the term "covered" almost exclusively to refer to contractors and contracts, not veterans.
To re-reiterate--VEVRAA itself does not use the word "protected." It never has. The DoL has unilaterally changed the meaning of the statute, in fact if not by law.