Veterans Preference in Federal Hiring

1. 3/24/2012 Veterans� Preference in Federal Hiring VETS has been charged by the Veteran�s Employment Opportunities Act of 1998 (VEOA) to investigate allegations of improper application of Veterans� Preference by federal agencies.

2. Veterans� Preference in Federal Hiring Since the time of the Civil War, veterans of the Armed Forces [as defined in 38 USC 101(10)] have been given some degree of preference in appointments to Federal jobs. Recognizing that sacrifices are made by those serving in the Armed Forces, Congress enacted laws to prevent veterans seeking Federal employment from being penalized because of the time spent in the military service.

3. Veterans� Preference in Federal Hiring By law (Title 5 USC, Section 2108), veterans who are disabled or who serve on active duty in the Armed Forces during certain specified time periods or in military campaigns are entitled to preference over non-veterans both in Federal hiring practices and in retention during reductions in force (RIF)..

4. Veterans� Preference in Federal Hiring The Defense Authorization Act of Fiscal Year 1998 (Public Law 105-85) extends Veterans' Preference to individuals who served on active duty during the Gulf War who are otherwise eligible, and to participants in Operation Joint Endeavor or Operation Joint Guard in the Republic of Bosnia and Herzegovina who were awarded the Armed Forces Expeditionary Medal (AFEM).

5. Veterans� Preference in Federal Hiring Preference does not have as its goal the placement of a veteran in every vacant Federal job; this would be incompatible with the merit principle of public employment. Nor does it apply to promotions or other in-service actions. However, preference does provide a uniform method by which special consideration is given to qualified veterans seeking Federal employment.

6. Veterans� Preference in Federal Hiring Preference applies in hiring from civil service examinations, for most excepted service jobs, and when agencies make temporary appointments or use direct hire and delegated examining authorities from the U.S. Office of Personnel Management (OPM). OPM's Vet Guide explains the special rights and privileges that veterans enjoy in Federal civil service employment and the VetsInfo Guide explains how veteran's preference and the special appointing authorities for veterans operate within the system.

7. Public Law 105-339 Instituted changes to the Veterans Employment Opportunity Act of 1998 (VEOA) 1.Preference Eligibles who allege that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor, The Veterans Employment and Training Service Agency (VETS).

8. Public Law 105-339 2. Complaints must be filed within 60 days after the date of the alleged violation. 3. Not earlier than 61 days after filing a complaint with VETS, complainants may appeal their case to the Merit Systems Protection Board (MSPB). 4. If the MSPB has not issued a decision within 120 days, claimants may seek judicial redress in the US District Courts. Details of these procedures are identified in section 3 of the VEOA, PL 105-339.

9. Public Law 105-339 5. Failure to comply with veterans' preference requirements will be treated as a Prohibited Personnel Practice (PPP) for certain purposes. To knowingly take, recommend, or approve any personnel action if the failure to take such action would violate veterans preference requirements or to fail to take, recommend or approve any personnel action if the failure to take such action would violate veterans' preference requirements is a PPP.

11. TITLE 38 � 4301 Purpose of USERRA Encourages non-career, uniformed service by minimizing the disadvantages of temporarily or periodically leaving covered employment in the public or private sectors in the interest of national defense or public health.

12. USERRA exempts from coverage Service members whose pre-service job was/is for a brief, non-recurrent period where the circumstances of their employment would cause no reasonable expectation that their employment would continue indefinitely.

13. USERRA Includes Virtually all other positions whether in the employ of Private sector or Local, State or Federal government. Probationary Career Casual Full-time Part-time

14. TITLE 38 � 4303 (2) DEFINITIONS The Term �Benefit of Employment�, or �Rights & Benefits� means any advantage, profit, privilege, gain, status, account or interest (other than salary) that accrues by reason of employment contract, agreement, policy, plan or practice which includes pension & health plan, stock ownership, insurance coverage, awards, bonuses, vacation, work hours and location. (other than salary) = USERRA establishes floor to benefits and not a ceiling. If more is offered to a particular group of employees than is expressed under Title 38, refer to 4311(a) and (c).(other than salary) = USERRA establishes floor to benefits and not a ceiling. If more is offered to a particular group of employees than is expressed under Title 38, refer to 4311(a) and (c).

15. TITLE 38 � 4303 DEFINITIONS (4) (A) Employer - any person or entity who pays wages for work performed or (iv) Any successor in interest to an employer (8) Notice can be Written or Verbal (13) Service in the Uniformed Services � Voluntary & Required Service is covered.

16. TITLE 38 � 4303 DEFINITIONS (15) The term �undue hardship�, means actions requiring significant difficulty or expense, when considered in light of the number of persons employed; the effect on expenses and resources or the impact of such action upon the business operations of such employer.* * VETS frequently recovers thousands of dollars in lost wages and benefits for claimants due to 4311 and 4316 violations from large and small employers.

17. TITLE 38 � 4312 (b) No notice is required if giving such notice is precluded by military necessity or is otherwise impossible or unreasonable.

18. TITLE 38 � 4311 (A) Provides That: A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service

19. TITLE 38 � 4311 (A) Provides That: �shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment

20. TITLE 38 � 4311 (c) �unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application or obligation for service.

21. TITLE 38 � 4312 (d) (1) An employer is not required to reemploy a person under this chapter if � (A) the employer�s circumstances have so changed as to make such reemployment impossible or unreasonable*

22. TITLE 38 � 4312 (d) (2) (in any issue involving whether) (A) any reemployment is impossible or unreasonable because of a change in the employer�s circumstances, THE EMPLOYER MUST PROVE: (B) that any accommodation, training or effort to make the qualified individual �whole� would impose an undue hardship*.

23. TITLE 38 � 4312 Protects �Covered Service� up to 5 years (cumulative, under honorable conditions) with exceptions Most frequent exceptions: initial enlistments of more than 5 years hospitalization and convalescence Title 10 402(a)(b) & (c) Call-ups (Title 10 402(d) counts towards 5-yr coverage

24. TITLE 38 � 4312 Asks Member To: Provide notice of pending service Serve under honorable conditions Reapply in a timely manner

25. TITLE 38 � 4312 (e) �TIMELY� MANNER Less than 31 days service � Work Period following travel & 8 hrs rest 31-180 days service � Within 14 days of release from service* More than 180 days Within 90 days of release of service* *notice to return

26. USERRA Asks Employers To release the employee for covered service (military leave, vacation leave* or LWOP) * Employee�s option

27. USERRA Reemployment 4312 (h) timing, frequency, duration � 4302 (b) USERRA vs. State, federal, private, or union contracts� Employers� right to request accommodation UNITS� right to refuse

28. TITLE 38 � 4316 (a) �Escalator position� This is precisely the position the service member would have attained, with reasonable certainty, had they remained continuously employed Must provide notice of, and opportunity for, promotions*

29. McArthur v. Norfolk & Western Railway Co., 405 F. Supp. 158, 78 LC }11,211, 91 LRRM 2370 S.D. Ill., 1975) Fireman Helpers before entering the military, had completed less than 1 year of a training program to become Engineers which included 3 years of actual service and a two-step examination process

30. McArthur v. Norfolk & Western Railway Co., 405 F. Supp. 158, 78 LC }11,211, 91 LRRM 2370 S.D. Ill., 1975) were subsequently reinstated to pre-service jobs, and subsequently satisfied the requirements of the training program and were entitled to retroactive seniority since the vast majority of those completing the training period generally passed the examination and were appointed to Engineer positions.

31. TITLE 38 � 4316 (a) �Seniority� Benefits that would flow or accrue with �reasonable certainty�, with satisfactory performance (presumed), simply through the passage of time Entitlement is not seniority based if it is dependent upon hours worked.*

32. TITLE 38 � 4316 (a) �Seniority� examples vacation accrual rate sick leave accrual rate cost of living adjustments (COLAs) to wage or salary rate pension benefits* If part of a project that receives a bonus for that project the individual with the military service obligation present for all or part of the project is entitled to the full bonus award. For any benefit that is provided to any individual on any other type of leave i.e. maternity, disability, sick, vacation, workman�s comp., etc. The uniformed service member is also covered under 4311(a) and 4316(a). If part of a project that receives a bonus for that project the individual with the military service obligation present for all or part of the project is entitled to the full bonus award. For any benefit that is provided to any individual on any other type of leave i.e. maternity, disability, sick, vacation, workman�s comp., etc. The uniformed service member is also covered under 4311(a) and 4316(a).

33. USERRA Reemployment USERRA establishes �floor� below which employers� benefits may not fall: Service members� benefits may be no less than those provided others on any other furlough or leave of absence.

34. USERRA Hot Spots Promotional Testing During Military Service Obligation? Personnel Evaluations Attendance and Availability Issues? Downsizing and USERRA What Would Have Occurred? Successor in Interest! During Mil Svc Obligation? Can be offered during obligation period. Must be offered as soon as possible and backdated to original testing date if successful. Will affect pay rate once pay is again earned. May also effect other seniority based benefits earned through success.During Mil Svc Obligation? Can be offered during obligation period. Must be offered as soon as possible and backdated to original testing date if successful. Will affect pay rate once pay is again earned. May also effect other seniority based benefits earned through success.

35. LOCAL POINT OF CONTACT Armand Escalera, Assistant Director USDOL/VETS 1359 Lomaland Drive, Suite 217 El Paso, TX 79935-5201 Phone : 915-887-2624 E-mail: escalera-armand@dol.gov VETS Home Page: http://www.dol.gov/vets

36. Additional Resources http://www.esgr.gov Employer Support for the Guard and Reserve http://www.dol.gov/vets Veterans� Employment & Training Service http://www.Opm.gov/veterans Federal Civil Service and Veterans� Preference http://www.dol.gov/pwba Pension and Welfare Benefits Administration