October 6, 2022

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GAO Manufactured 7 Lackluster Recommendations to OFCCP to “Improve Oversight of Veterans’ Federal Contractor Employment” | DirectEmployers Association

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Responding to unnamed and unknown “Congressional Requesters,” the U.S. Authorities Accountability Office environment (“GAO”) issued a 45-web page composed report titled “Equal Employment Prospect: Far better Aid and Info Use Could Improve Oversight of Veterans’ Federal Contractor Employment” (“GAO Secured Veterans Report”). The GAO is a 101-12 months-old federal agency frequently termed the “congressional watchdog.” It is an impartial, non-partisan agency that will work for Congress. The GAO has obtained fame and standing for its stories which examine how taxpayer bucks are put in and deliver Congress and federal agencies with objective, non-partisan, fact-dependent info to assistance the authorities save income and perform extra successfully.

The GAO’s Protected Veterans Report, nevertheless, appears to be to be a report in lookup of a purpose. Because the Report discusses only recommendations for advancement, it does not remark on what former OFCCP Director Pat Shiu (D-Obama Administration) termed the “magic sauce” which obtained Shielded Veterans hired: the “listing” of federal contractor careers with condition Job One particular-Cease Centers to deliver all those veterans a “Priority Referral” pursuant to 38 USC Part 4212, as amended (aka “VEVRAA”) and OFCCP’s VEVRAA applying Regulations at 41 CFR Area 300.5(a)(2). None of the Report’s seven suggestions are earth-shattering or substantially have an effect on a veterans’ program which is operating effectively by most accounts, and as Veterans’ unemployment nears report lows of only 3% according to the most recent USDOL Bureau of Labor Figures (“BLS”) monthly Work Scenario report dated May well 6, 2022 at Table A-5.

Read through the GAO’s seven Recommendations underneath followed by our Editorial Notes (constantly the most effective portion for the reason that they convey to the genuine story!):

Suggestion 1: “The Director of OFCCP must make clear how contractors should really use the VEVRAA choosing benchmark, including supplying illustrations of how contractors can use it as a tool to evaluate progress in using the services of safeguarded veterans.” [Editor’s Note: Pat Shiu did that in 2014 when OFCCP amended its VEVRAA Rules. I am not sure what I would do with this Recommendation were I the OFCCP Director. Already done and done].

Recommendation 2: “The Director of OFCCP should integrate key methods, this kind of as all those identified by other businesses, for using veterans into its public details on VEVRAA.” [Editor’s Note: OFCCP has done that for decades and doubled down on its “Best Practices” advice in 2014 and 2015, which is still in place. I am not sure what I would do with this Recommendation were I the OFCCP Director. Already done and done].

Recommendation 3: “The Director of OFCCP ought to give information to contractors and personnel that encourages self-identification for protected veterans. For case in point, OFCCP could make a movie outlining the rewards of self-identification for guarded veterans equivalent to 1 it has for people today with disabilities.” [Editor’s Note: Ho-Hum.]

Suggestion 4: “The Director of OFCCP should really use accessible facts to improved approximate the size and properties of the veteran populace secured beneath VEVRAA. For case in point, OFCCP could consider how to change the facts it employs from the CPS Veterans Health supplement to approximate the subset of veterans who are safeguarded.” [Editor’s Note: No one in the world knows how to count “Protected Veterans.” This is not within OFCCP’s control. Congress created a unique four-part definition under VEVRAA of “Protected Veteran” over the 40-years between 1974 and 2014 which no federal agency has ever been able to track and count. Mission impossible. And not relevant, anyway. Applicant Flow is the least unreliable measure of Protected Veterans available to federal contractors. OFCCP and contractors know only what they can see and count regardless of however many Protected Veterans government estimators can dream may exist.]

Advice 5: “The Director of OFCCP really should evaluate the feasibility of applying present knowledge or accumulating new info to incorporate into enforcement procedures that would let OFCCP to assess systemic discrimination towards guarded veterans.” [Editor’s Note: A fool’s errand. There is currently no systemic discrimination against Protected Veterans. SNARK HUNT. They are a favored species and are not available in sufficient numbers, at any rate, to make for meaningful statistical analyses except in aberrant circumstances. Also, in addition, OFCCP (unfortunately) lacks non-discrimination authority as to Protected Veterans. Here is what VEVRAA actually says and has said since 1974 (see opening para):

“Any contract in the amount of $100,000 or more entered into by any department or agency of the United States 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 [emphases added] to hire and progress in employment qualified covered veterans. This portion applies to any subcontract in the quantity of $100,000 or extra entered into by a primary contractor in carrying out any these types of deal.”

Be aware: VEVRAA, the federal statute, (regrettably) has no discrimination prohibition. Never shoot the messenger. And, even though OFCCP’s Rules do, or have stated that they prohibit discrimination (due to the fact 2014), a basic precept of Administrative Regulation is that polices (“Rules”) that put into practice federal statutes authorizing the federal company to act can be no broader than the authorizing statute. OFCCP’s VEVRAA non-discrimination Procedures are as a result totally invalid and unenforceable.

Also, and by the way (given that this generally provokes confusion and questions), VEVRAA’s stated $100,000 agreement value threshold has improved to $150,000 pursuant to Portion 807 of the Ronald Reagan Countrywide Defense Authorization Act, 41 U.S.C. 1908, (often identified as the Indexing Act). OFCCP agrees. You have to go through the two federal statutes collectively to get the right response.

Bottom Line: Inspite of OFCCP’s above-reaching Policies asserting non-discrimination authority considering the fact that 2014, Congress did not intend VEVRAA to be a non-discrimination law statute. Relatively, VEVRAA has essential only Affirmative Motion due to the fact 1974 and carries on to do so now, i.e., the “magic sauce” of Safeguarded Veteran Precedence Referrals to state employment companies identified as Career A person-Stops.]

Advice 6: “The Director of OFCCP should assess the costs and rewards of modifying the VEVRAA selecting benchmark to replicate safeguarded veterans who may well not be captured in the civilian workforce or who have reasonably substantial unemployment prices, such as shielded veterans who have significant services-connected disabilities.” [Editor’s Note: It matters not what anyone says is the amount of gold in the river sand; rather, what counts is what is in your gold prospecting pan. You may count with reliability only what is in your mining pan. And, you only worry about that amount if you look down the river and see other miners panning out larger volumes of gold than you. See useful Recommendation 7, below.]

Suggestion 7: “The Director of OFCCP should make certain the trustworthiness of the VEVRAA selecting benchmark details collected in its case management process and use these information to much better monitor contractors’ selecting benchmarks and equivalent employment initiatives for guarded veterans, as properly as assess its very own VEVRAA compliance aid efforts.” [Editor’s Note: Now this is a worthwhile Recommendation. Pat Shiu had it specifically in mind in 2014 that contractor reports of Protected Veteran Applicant Flow, as discovered in OFCCP audits, would start to create the first realistic and validated Protected Veterans census. Shame on OFCCP if the agency has not followed-up, in fact.]

To all our Veterans:

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