May 8, 2014
Let’s test our understanding of Oregon’s Veterans Preference law and regulations. We all know that the law requires public sector employers filling “civil service” positions to provide a preference to eligible veterans at each competitive stage of a selection process (for hire or promotion). The required preference is either points (5 points for veterans, 10 points for disabled veterans) or “special consideration” in the selection process. The question, though, is when that preference must be given.
Here are our test questions. For these questions, we will assume the candidate is Gene I. Hiereau, an honorably discharged United States armed forces veteran and a recipient of the Purple Heart for wounds received in combat.
The answers are provided after the jump.
(Admittedly, there is no jump. I just wanted to use that phrase.)
Here are the answers: No, Yes, and No.
The Veterans’ Preference law has been a hot topic lately. Bullard Alert readers will recall that last month we reported on a BOLI ALJ proposed opinion and order in which the ALJ concluded that the Multnomah County Sheriff’s Office violated the preference requirements 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. The ALJ recommended that the Labor Commissioner order the payment of $25,000 in emotional distress damages and require the adoption of a compliant process. Multnomah County contends that it attempted to comply with the law and is contesting the ALJ's recommendation.
As noted above, the law requires public sector employers filling “civil service” positions to 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. The preference may be in the form of points or non-numeric “special consideration”.
With that background, let’s take a closer look at each of the questions.
G.I. Hiereau is not entitled to a preference related to the CPA requirement. The regulations, at OAR 839-006-0450(1). state: "A public employer shall grant a preference to a veteran or disabled veteran who applies for a vacant civil service position or who seeks promotion to a civil service position with a higher maximum salary rate and who: … (c) Meets the minimum qualifications and any special qualifications for the position.” Because being a CPA is a minimum qualification for the accountant position, Home Town is not required to give a preference to help G.I. Hiereau meet that requirement.
G.I. Hiereau is entitled to a preference in the paper review process. The Veterans’ Preference law at ORS 408.237(2) includes an interview preference for eligible veterans. “When an interview is a component of the selection process for a civil service position or for an eligibility list for a civil service position, a public employer shall interview each veteran” who meets minimum qualifications for the position. Assuming the minimum qualifications are met, G.I. Hiereau is entitled to advance to the interview, even if two other junior surveyors are rated higher on the paper review (in that case, Corner County would advance three junior surveyors to the interview stage).
G.I. Hiereau is not entitled to a preference. This was a trick question (though I doubt it fooled too many folks). The Veterans’ Preference law applies only to public sector employers. I tried to drop enough hints to indicate that City First Bank is a private employer, including noting that the bank is a multi-state entity headquartered on the opposite coast (in New York City). Even if G.I. Hiereau is an outstanding candidate (and we will assume that is the case), because the law does not apply to private employers, City First Bank does not have statutory permission under Oregon law to give a preference to G.I. Hiereau based on veteran status.
The Oregon Veterans’ Preference law ought to be simple, but presents significant implementation challenges. Before a public employer begins a recruitment it would be well advised to confer with its legal counsel.
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond. Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.