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ALJ Finds Oregon Public Employer Violated Veterans' Preference Law by Failing to Grant a Preference to a Covered Veteran at Every State of the Hiring Process

April 8, 2014

By Benjamin P. O'Glasser

VETERANS’ PREFERENCE UPDATE

The Multnomah County Sheriff’s Office violated Oregon’s Veterans’ Preference law by failing to devise and implement an adequate method for giving “special consideration” to a covered veteran at the interview stage of a lieutenant selection process, according to an Oregon Bureau of Labor and Industries Administrative Law Judge. The April 1, 2014 proposed opinion and order recommends the Commissioner of Labor order the payment of $25,000 in emotional distress damages and the adoption of a compliant process.

Oregon’s Veterans’ Preference Law

The Veterans’ Preference law requires that public sector employers filling “civil service” positions provide a preference to eligible veterans at each competitive stage of a selection process (for hire or promotion). “Civil service” positions are those for which a hiring or promotion decision is or must be made based on the results of a merit-based, competitive process that includes, but is not limited to, consideration of the relative abilities, knowledge, experience and other skills of applicants. In scored stages of the selection process the preference is 5 points for veterans or 10 points for disabled veterans.

A preference also must be given at stages that are not numerically scored. For those stages, the employer must devise another method to give a preference. As amended in 2007, the law provides that an employer “shall devise and apply methods by which the employer gives special consideration in the employer’s hiring decision to veteran and disabled veterans.”

The Underlying Facts

In September 2012, the Sheriff’s Office announced that it was seeking internal applicants for an open lieutenant position in its Law Enforcement Department. This was a civil service position opening (it was to be filled through a merit based process); for that reason, the Veterans’ Preference Law required that veteran and disabled veteran candidates be given a preference at each competitive stage in the selection process. The MCSO received three applications, one of which was from Sgt. Rod A. Edwards, a disabled veteran.

Unfortunately, prior to advertising the opening, the MCSO did not adopt a selection process that clearly established how the preference would be accorded. The job announcement had not referred to the requirement to provide a preference for veterans and disabled veterans. While Multnomah County had a policy that accorded a preference in points-based stages of selection processes, that policy did not also state that (or describe how) the preference would be provided in non-numerically scored stages of a selection process. In this case, the interview was not numerically scored.

Because the MCSO did not have a written policy or process in place, it accorded the preference inconsistently. For example, one interviewer considered the veteran applicant to be in the “first position” at the outset of interviews, whereas another interviewer considered his status in conjunction with all other factors. None of the interviewers referenced his status in their written recommendations to the final decision-maker.

The ALJ’s Decision

Sgt. Edwards was not selected for the position. The ALJ found “objective support in the record” for the conclusion that Sgt. Edwards “was not equal or superior to the other two candidates”. However, the ALJ’s holding in favor of Sgt. Edwards was not driven by the relative merits of the lieutenant position candidates. Rather, the ALJ concluded that the MCSO had violated the Veterans’ Preference law “because it had not devised and applied a method to give special consideration to his veteran status in its hiring decision.”

The ALJ’s Order recommends that the MCSO be required to pay an assessment of $25,000 in emotional distress damages. In addition, the ALJ recommends that the MCSO be ordered to devise and implement a policy in consultation with BOLI and to cease and desist from hiring processes that similarly fail to comply with the Veterans’ Preference law. Further, with respect to the MCSO’s explanation that it had accorded a veteran preference on an ad hoc basis by ranking Sgt. Edwards first at the initial stage of the process, BOLI sharply criticized that method as a “barely measurable head start,” and defective since “the
merest puff of superiority can blow away the entire preference[.]”

Practical Considerations

This proposed order shows that BOLI places a rigorous emphasis on applying the veteran preference at each stage of the selection process. Merely acknowledging the preference, without demonstrably applying it (in a manner that can be explained) will not suffice. With this in mind, there are several practical implications for employers.

First, to ensure compliance an employer (a) should have a sound written policy addressing the veterans’ preference and, (b) prior to advertising an opening, the employer should adopt a written selection process reflecting the each of the stages and the method of granting the preference at each stage. In this case, the MCSO understood its obligation to grant a preference but did not adopt a compliant process.

Second, applying the preference numerically is easier. The appropriate points can easily be added at each competitive stage. Where a point system is not utilized, proper training of all personnel involved in the selection process is essential.

Bullard Law will continue to follow the veterans’ preference issues. Please feel free to contact us anytime with any questions about the decision or any other labor, employment, or benefits issues of interest or concern to you.

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