State, local and special governmental bodies are required to give preference to certain veterans and disabled veterans in hiring and promotions to civil service positions. Such employers must also grant interviews to qualifying veterans in certain circumstances. This set of laws and rules has changed significantly as of January 1, 2012. Let’s start with a basic overview.
First, a couple of definitions are important to help understand the reach of the veterans’ preference law. By “veteran”, we mean a person who served on active duty with the U.S. armed forces for more than 90 consecutive days beginning on or before January 31, 1955 or for more than 178 consecutive days thereafter, and who was discharged or released from such service under honorable conditions. Also included are veterans who served 178 days or less, but were discharged or released under honorable conditions because of a service-connected disability (or who have a disability rating from the VA), or who served at least one day in a combat zone and were discharged or released under honorable conditions. Finally, the veterans’ preference law applies to veterans who received a combat or campaign ribbon or an expeditionary medal for service in the U.S. armed forces, and were discharged or released under honorable conditions. The following website provides information on qualifying medals and military campaigns: http://www.opm.gov/staffingportal/vgmedal2.asp
A “disabled veteran” is a person who has a disability rating through the U.S. Department of Veterans Affairs, one whose discharge or release was for a disability incurred or aggravated in the line of duty, or a recipient of the Purple Heart for wounds received in combat.
A “promotion” means any position with a higher maximum salary rate. Finally, a “civil service position” need not be labeled as such, but is any position for which hiring or promotion is decided or required to be decided on the results of a merit-based, competitive process, including, among other criteria, consideration of the person’s ability, knowledge, experience and other skills.
Veterans’ preference in hiring or promotion, therefore, need not be used by private employers or by public employers who are filling positions that are not civil service positions, as that term is broadly defined. Veterans and disabled veterans are eligible for the preference at any time after discharge or release from the service, and there is no limit to the number of times a veteran or disabled veteran can claim the preference.
So how is the preference applied by a public employer during the hiring or promotion process? If a veteran or a disabled veteran successfully completes an initial application screening or examination and meets the minimum qualifications and any special qualifications for the position, the public employer applies a preference to the total score (rather than adding it to each component) at each stage of the process. It does so by adding five preference points to the score of a veteran and ten preference points to the score of a disabled veteran at the initial screening stage. If there is an application examination after the initial screening, those preference points are again applied to the total combined score of the examination. If the application examination’s total score, enhanced by the preference, results in the veteran’s score being equal to or higher than that of a nonveteran, the employer is required to hire the veteran.
In making promotion decisions, public employers are also obligated to give a preference to veterans and disabled veterans in the same manner as in hiring. If a veteran or a disabled veteran is already employed by the public employer and seeks a promotion, the five point preference for veterans and the ten point preference for disabled veterans is applied to the total score at every stage of that process.
The preferences described above do not create a requirement that the public employer appoint a veteran or disabled veteran to the position. ORS 408.230 (5) provides that ”the 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.” Just because a veteran is in the pool of successful applicants does not mean the public employer is required to hire him or her for the position.
If the public employer does not use a numerical score for hiring or promotion decisions, the employer is still required to devise and apply a method by which special consideration is given to veterans. Whether or not a numerical score is used, if the veteran is not successful in the hiring or promotion process, upon written request the employer is required to provide the reasons for the decision not to hire the veteran to the position. This means that a public employer may have to be able to demonstrate that the successful candidate was more qualified for the position after special consideration was given to the veteran.
The 2011 legislative session dramatically changed the landscape for public employers hiring or promoting workers into civil service positions. House Bill 3207 was an effort to assist veterans seeking employment after serving in the armed forces by allowing them to demonstrate that they acquired “transferrable skills” in the service. Those skills, obtained through military education or experience, substantially relate, directly or indirectly, to the civil service position for which the veteran is applying. The Bill went into effect on January 1, 2012.
HB 3207 provides that when an interview is a component of the selection process for a civil service position or eligibility list (ranking eligible candidates through one or more tests, after which candidates are considered in ranked order), the public employer must interview each veteran: (1) who meets the minimum qualifications and special qualifications for the position or eligibility list; and (2) who submits application materials that the employer determines show sufficient evidence that the veteran has the transferrable skills required or requested by the employer for the position or the eligibility list. This may mean that public employers will be conducting more interviews of qualifying veterans, even if those veterans are not near the top of the eligibility list. However, by applying the 5 or 10 point preference to the score of a veteran or disabled veteran, respectively, qualifying veterans will move up the list. There is a narrow exception in the bill to the requirement that employers interview qualifying veterans if the hiring is done from the eligibility list without further interviews or if an interview is not required to get on that eligibility list.
Public employers do have some useful tools and resources at their disposal for determining whether military education or experience produces a transferable skill. The Oregon Department of Veterans’ Affairs, www.oregon.gov/ODVA
503/373-2000, and the Oregon Military Department, www.oregon.gov/OMD
503/584-3980, provide consulting services for employers. In addition, there is a website with an informative guide to educational experiences in the military compiled by the American Council on Education that shows employers how military training and experience translate to the civilian job market: http://militaryguides.acenet.edu/CourseSearch.asp
Now that military operations in the Middle East are being curtailed, it is reasonable to expect that men and women who have served our country will be returning to jobs in the civilian world. Public and private sector employers should, of course, be mindful of the anti-discrimination provisions of federal law (USERRA) and state law (ORS 659A.082). Public employers are held to a higher standard, however. They must grant preferences to veterans in hiring and promotions. They may also find that veterans possess some unique attributes that employers find desirable: for starters they are trained to show up on time and to follow orders! They may also have some unique training and experience from their service that will translate well in their new careers back home.
Frequently Asked Questions
Q: If a veteran who is eligible for the preference completes the initial screening but does not have a passing score, am I required to apply her preference points to that score? The additional five points would give her a passing score.
A: No. At each stage of the application process a public employer will grant the preference to a veteran or disabled veteran who successfully completes an initial application screening or examination or a civil service test. OAR 839-006-0450(1). The veteran must first successfully complete the initial screening examination with a passing score before the preference is applied.
Q: If a qualified veteran meets the screening criteria, are we required to hire the veteran?
A: Not necessarily. The public employer is required to hire the qualified veteran or disabled veteran to a vacant civil service position if the results of his or her application examination, when combined with the five point preference for the veteran or the ten point preference for the disabled veteran, are equal to or greater than the results of an application examination for an applicant who is not a qualified veteran or disabled veteran. ORS 408.230(3).
Q: Our initial screening grades on a scale of 1-100. A non-veteran scored a perfect 100, but a qualified veteran scored a 98 before application of the preference points. Do we cap the veteran’s score at 100 or do we credit him with a score of 103?
A: Probably the latter. The statute and rules do not specifically address this scenario. They merely state that you are to add 5 points to the qualified veteran’s score. This would result in a score of 103. As a practical matter, however, it is of no consequence in your situation, since you are still required to offer the position to the veteran, even if the results are tied after adding the veterans’ preference points.
Q: We have an employee who did not qualify for the preference upon hiring, but he later took a year of military leave to serve in the armed forces and was honorably discharged. After his deployment, he returned to his civil service job, met the qualification criteria for the preference and applied for a promotion. He met the minimum standards on his test for the promotion and is qualified for the position. Is he entitled to the preference in the process of evaluating him for the promotion?
A: Yes. A public employer must grant the preference to a veteran seeking a promotion in the same manner as if a non-employee veteran were seeking the position if he successfully completed the test for the promotional position; and he meets the minimum qualifications and any special qualifications for the position. OAR 839-006-0455.
Q: We just asked the veteran seeking the promotion for certification from the Department of Defense that he meets the eligibility requirements for the preference. He sheepishly informed us that he got into a little trouble off base one night and received a general discharge rather than an honorable discharge. Is he still entitled to the preference?
A: Probably. The public employer may require an applicant to provide certification of his or her eligibility for the preference, and pending receipt of the certification may provisionally designate the applicant as eligible. OAR 839-006-0465. However, a veteran
receiving a discharge or release under less than honorable conditions does not meet the eligibility criteria unless he or she received a combat or campaign ribbon for service in the U.S. armed forces. It should be borne in mind that most discharges, even general discharges are “under honorable conditions”, which is all that the criteria require. Discharges under less-than-honorable conditions are extremely rare. Alternatively, a veteran may meet the eligibility requirements as a disabled veteran if the veteran has a disability rating from the Department of Veterans Affairs, if the discharge or release was for a disability incurred or aggravated in the line of duty, or if the veteran received the Purple Heart for wounds received in combat. OAR 839-006-0440.
Q: We intend to interview the top three candidates from our eligibility list for a civil service position. None of those candidates is a veteran, but we do have several candidates farther down on the list who are veterans. Do we have to interview them even though they are outside the top three?
A: Maybe. As a result of HB 3207, effective Jan. 1, 2012, a public employer shall interview each veteran who meets the minimum and any special qualifications for the position or eligibility list AND who submits application materials that the public employer determines show sufficient evidence of the transferrable skills required and requested by the employer. If the candidates farther down the list are veterans and have both the minimum qualifications and special qualifications for the job AND demonstrate they have the transferable skills required and requested by the employer, they must be interviewed.
There is also a limited exception to the required interview component of HB 3207- if the employer conducts interviews only as part of the process of selecting a candidate for a civil service position from an eligibility list, then the interview is not required. Eligibility list is further defined in OAR 839-006-0440 (6) to mean “a list of ranked eligible candidates for a civil service position who have become eligible for the position through a test or series of tests and who will be considered for the civil service position in ranked order. Rankings of eligible candidates identified as tiers, bands or other names function as eligibility lists for purposes of these rules.”
Posted November 2012
Nothing on this website is intended as legal advice. Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney. We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current. We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
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