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Failure to Apply a Veteran's Preference in Hiring Can Be a Costly Mistake
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BY AMY ROBINSON AND CARRIE PEARSON

On April 13, 2016, the Oregon Court of Appeals issued a ruling in Multnomah County Sheriff’s Office v. Edwards[1], a case involving a disabled veteran who had sought a promotion from sergeant to lieutenant.  After he was not selected, he pursued a formal complaint alleging that the Sherriff’s Office failed to give him the veteran’s preference required by ORS 408.230.  The Court of Appeals agreed and upheld an earlier decision by the Oregon Bureau of Labor and Industries (“BOLI”) awarding the employee $50,000 in emotional distress damages for the error. 

While this is not a new law, the case highlights the challenges public employers face in consistently applying the veteran’s preference as well as the risks of “getting it wrong.” 

So, what does the law require?

ORS 408.230 requires public employers in Oregon to grant a preference to a veteran or a disabled veteran who applies for a vacant civil service position or seeks a promotion, successfully completes an initial application screening, and meets the minimum qualifications for the position.  The statute requires those public employers who use a scored application process to provide an additional 5 points to the score of a veteran and an additional 10 points to the score of a disabled veteran at the initial application screening and again for the application examination after initial screening.

If a scored application process is not used, the employer must “devise and apply methods by which the employer gives special consideration in the employer’s hiring decision to veterans and disabled veterans.” ORS 408.230 (2)(c).  The Court in this case confirmed that this special consideration must be given via a method that was clearly articulable and applied at every stage of the hiring process from initial application review, to interviews, to the final hiring decision. 

Why didn’t the Sheriff’s Office preference method comply?

The Sheriff’s Office in this case used an unscored application process for the promotion at issue.  Based upon the testimony of those people involved in the hiring process, including the HR manager, the interviewers, and the Sheriff who made the final hiring decision, BOLI found that there was no mechanism by which the Sheriff’s Office applied the preference.  Each of the participants in the hiring process for the promotion at issue had a different view of who should apply the preference, when it would be applied, and how it should be applied.  While each of the participants in the hiring process was aware of the veteran’s preference requirements generally, BOLI viewed the inconsistencies in the testimony of those participants as evidence of the strong likelihood that no preference was given at all.

However, for the sake of determining the sufficiency of the preference, BOLI found that the most plausible method of preference articulated by the Sheriff’s Office was the “number one candidate” method.  This meant that the veteran candidate was to be considered the best candidate going into the hiring process and would move forward in that process if his qualifications were equal to or better than the other candidates.  The Court upheld BOLI’s decision that this method, even if it had been used, would have been insufficient because it could be so easily overcome that it amounted to no preference at all. 

So, what do public employers need to do now?

Again, while this is not a change in the law, it is good reminder to public employers in Oregon to examine their hiring and promotion practices to:

Consider whether a scored process to review applications is feasible or appropriate for the particular job vacancy.   If so, be sure to apply the required points at each stage of the process.

If an unscored hiring process is preferable, be sure to have a “coherent and stable method” for providing veterans and disabled veterans a preference at each stage of the hiring process, and consistently apply that method to the applications of veterans/disabled veterans.  Ideally it should be a method/criteria that can be well-documented during the hiring process.  For example, perhaps veterans/disabled veterans can be treated the same as those candidates who had many of the “preferred” qualities listed in the job posting for the first round, even though they did not have those particular preferred qualifications.  Again, you should consult with your legal advisors to ensure your chosen method is sufficient.     

Educate those involved in the hiring process so they understand and are able to apply the method you have chosen.  If challenged, the participants in the hiring process must be able to clearly articulate what method is used to apply a veteran’s preference. 

Be prepared to give your reasons for not selecting the veteran or disabled veteran, in writing, to the applicant if he or she requests it.  This is also a requirement under ORS 408.   As always, we hope this update has information that is beneficial to you.  Of course, don’t hesitate to call us if you have questions or concerns about the veteran’s preference laws, hiring practices, or have any other employment-related legal issues you need assistance with.  We will be more than happy to help. 

Amy Robinson, JD, SHRM-SCP, SPHR, is an attorney in Jordan Ramis PC’s employment law practice group.  Prior to practicing law, Amy served as a human resources professional, giving her valuable insight into employment issues.  You can e-mail Amy at amy.robinson@jordanramis.com or by calling (503) 598-7070.

Carolyn Pearson, JD, is an attorney in Jordan Ramis PC’s employment law and litigation practice groups.  She has successfully litigated in both state and federal court cases concerning non-competition agreements, discrimination allegations, and constructive discharge.  You can e-mail Carolyn at carolyn.pearson@jordanramis.com or by calling (503) 598-7070.

[1] Multnomah County Sheriff’s Office v. Edwards, 277 Or App 540, 2016 WL 1458250 (April 13, 2016).