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Bullard Law Observes Veterans Day by Reminding Employers About Laws Relating to Veterans

November 10, 2011

By Michael G. McClory

VETERANS DAY UPDATE

As we prepare to observe Veterans Day 2011, Bullard Law offers its sincere appreciation and gratitude to all of those who are serving or have served the United States of America. We appreciate the service and sacrifice of America’s veterans.

On the occasion of Veterans Day 2011, and given that the civilian workforce includes many veterans, it is an ideal time to highlight several labor and employment law issues related to veterans. Specifically, in this Alert we discuss the following: (1) Oregon’s “veterans’ preference” requirement applicable in public employment; and (2) the VETS-100 and VETS-100A Reports filing requirements.

Veterans’ Preference in Public Employment
Oregon law requires that state, local and special governmental bodies give a preference to certain “veterans” and “disabled veterans” in hiring and promotions to “civil service” positions. See ORS 408.210 et seq. and OAR 839-006-0435 et seq. Because the details of the preference requirement can be confusing, we will highlight several of the key points.
 
  • “Civil service” positions: For purposes of this law, a civil service position is any position for which a hiring or promotion decision is made or required to be made based on the results of a merit based, competitive process that includes, but is not limited to, consideration of an applicant’s or employee’s relative ability, knowledge, experience and other skills.
     
  • The required preference is 5 or 10 “points”: The law requires that 5 preference points be awarded to eligible veterans and 10 preference points be awarded to eligible disabled veterans. The required points are not percentages; the points are simply points. Whether an employer’s scoring process has 100 or 5000 possible points, the eligible veteran or disabled veteran applicant receives the same 5 or 10 preference points. This loose drafting creates a possibility that some employer could design a point system that overemphasizes or underemphasizes the preference. In our conversations regarding this issue with the Oregon Department of Veterans Affairs, we have been told that the Department’s compliance expectation is that employers to design a fair system and to apply it uniformly.
     
Many employers do not use numeric rankings or scoring. If there is not a numeric ranking system, the employer is supposed to identify some other way to give a preference. “If a public employer uses an application examination that consists of an evaluation method of ranking an applicant that does not result in a score, the public employer will devise and apply methods by which the public employer gives special consideration in the public employer’s hiring decision to veterans and disabled veterans.” OAR 839-006-0450(4).
 
  • This is a preference, not a quota or hiring requirement: The law requires a preference, but does not require the hiring of a preference-eligible veteran or disabled veteran. Per ORS 408.230(4), an “employer may base a decision not to appoint the veteran or disabled veteran solely on the veteran’s or disabled veteran’s merits or qualifications with respect to the vacant civil service position requirement. In other words, after application of the preference, an employer is free to select the most qualified applicant.
     
  • The preference applies at every competitive stage of the selection process: Many hiring processes involve multiple steps (e.g., initial interviews, skills testing, second interviews, etc.) The law requires that where a recruitment process is two-steps or more, eligible veterans and disabled veterans are entitled to the preference at each stage to which candidates advance through a competitive process. In its Frequently Asked Questions section, BOLI provides a helpful example. “So, for example, a public employer whose application process involves a physical agility test, a written test and an interview, will add five points to the score of an eligible veteran’s physical agility test and to the score of the written test and to the score of the interview.”
     
There are two key refinements to this point. First, where a single stage consists of multiple parts, the preference points are added to the combined stage score. BOLI illustrates this distinction with the following example: “Example. A public employer whose application examination involves a physical agility test, a written test and an interview, will add the veterans’ preference points to the total combined score of all three parts of the application examination (the physical agility test, the written test and the interview.”

Second, the preference is not required when an employer is evaluating minimum qualifications for a position (e.g., a test that simply measures whether a candidate is minimally qualified as opposed to whether the candidate is the most qualified). BOLI offers the following example: “Example. An eligible veteran who scores 65 on an initial application screening test that requires a passing score of 70, may not receive veterans’ preference points for the purpose of bringing the veteran’s score into the passing range thus, allowing the veteran to advance to the next hiring stage. The same would be true for the application examination or civil service test.”

VETS 100 and VETS 100A Reports
The Vietnam Era Veterans' Readjustment Act of 1972, 38 USC §4212 (“VEVRAA”), requires federal contractors and subcontractors covered by VEVRAA’s affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans. VEVRAA also requires federal contractors and subcontractors to report the number of new hires during the reporting period who are qualified covered veterans.

The report required is either the VETS-100 or VETS-100A report.
 
  • The VETS-100 report is required of contractors and subcontractors that have federal contracts of least $25,000 entered into prior to December 1, 2003.
     
  • The VETS-100A report is required of contractors and subcontractors that have federal contracts of at least $100,000 entered into on or after December 1, 2003.

For both reports an employer uses employment data from any one payroll period in July or August of the current year. The report can be filed online. The VETS100-100A Federal Contract Reporting website, which includes instructions, answers to frequently asked questions, and the report form, is located at http://www.dol.gov/vets/programs/fcp/main.html[EDITOR’S NOTE: Beginning with the 2015 filing cycle, the VETS-100 Report will no longer be used and the VETS-100A Report has been renamed as the VETS-4212 Report.  See DOL’s September 26, 2014 press release.]


Normally, the requirement is for contractors submit to this report by September 30. However, because DOL changed the report and that changed form was not ready for use in the normal filing timeline, for 2011 only the deadline for submitting the VETS-100 or VETS-100A report is December 30, 2011. The following message is posted on the DOL/VETS website:

“Contractors may now submit their VETS100 and/or VETS100A reports using the VETS100 reporting application for the 2011 filing cycle. Contractors must use the 2011 form provided below (see Forms Section).

While the filing cycle timeframe has changed, the timeframe for information used to complete a VETS100/100A report (known as the reporting period) will still remain the same. Question 16 in the FAQs provides more information about the reporting period.

Contractors will have up to 60 days to submit their report(s) from November 1, 2011 to December 30, 2011. Reports will not be accepted for the 2011 filing cycle after December 30, 2011.”

Timely filing of the VETS100 and/or VETS100A report is critical, as the DOL makes clear: “Federal contracting agencies are prohibited from obligating or expending funds to enter into a contract covered by VEVRAA with a contractor from which a VETS-100 or VETS-100A Report was required with respect to previous fiscal year if such contractor did not submit such report.”

Remember that there are many other labor, employment and benefit issues related to veterans, such as various veteran-focused employment initiatives and military leave under USERRA and state law. Bullard Law is monitoring all of these laws and initiatives and stands ready to assist with any labor, employment and benefit issues related to veterans. 
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