Preferential Hiring Beyond the OFCCP - Goodbye Employment-At-Will

by Davis Brown Law Firm
Contact

When the Office of Federal Contract Compliance Programs (OFCCP) announced its rules on the hiring of veterans and those with disabilities this generated significant discussion on preferential hiring programs as well as the issues relating to veteran employment. Concerns were expressed by various organizations and groups relating to everything from how this would impact upon other preferential hiring goals expressed by OFCCP, such as for women and other minorities and the interaction of the OFCCP guidelines with the ADA/ADAAA. However, separate from these requirements for federal contractors, public employers in Iowa face various state law concerns, specifically those under Chapter 35C, the Iowa Veteran’s Preference Act. The Act provides for several very specific requirements in the hiring of veterans for public employers and that veterans are entitled to “preference in appointment in employment over other applicants of no greater qualifications.” In addition to the statutory language there have also been several specific court cases which relate to the Act, which provide additional guidance in how the Act is to be implemented. In summary, it requires the following:

  1. A veteran as defined by Iowa Code Section 35.1 is to be provided preferential treatment in hiring. This section, 35.1, provides very specific definitions as to who is a qualified Veteran. Listing specific wars, specific times and noting that members of the reserve forces and members of the Iowa National Guard are considered veterans for the purposes of this statute if they had served at least 20 years and were discharged under honorable conditions.
  2. As a public employer, the entity is required to have a section on its application which allows a veteran to list his or her military service. Given that honorable discharge is typically required pursuant to the statute an inquiry as to whether or not the veteran was honorably discharged is appropriate.
  3. If the veteran has the same qualifications as other applicants the veteran receives preference for hiring.
  4. Typically, employers are required to make an investigation of the “preferred person.” This includes an investigation into the qualifications of the applicant for the position, determination if the applicant has “good moral character” and is able to perform the duties of the position. Presumably, if you are a public employer who is required by statute to provide for specific background checks, such as the SING process or debarred providers, this standard background process must also be accomplished.
  5. The person in charge of hiring or the decision maker must reduce his/her decision regarding the hiring to writing and “file for public inspection” the grounds upon which the person was hired or refused. However, at the time of application, or during an interview “an applicant may request notification of refusal only or notification of refusal on the specific grounds for refusal. That notification must be sent within ten days after the successful applicant is selected.”
  6. In the event that the public employer provides testing for any portion of competency to determine hiring, the veteran receives a 5% bump on his/her score, increasing the total average of the score. The Veteran must meet any minimum requirements to pass the test without this 5% bump in order to qualify for the score increase.
  7. Once a veteran is hired, the preference set forth in Iowa Code Chapter 35C applies to employment status, negating the basic requirement of employment at will in the state of Iowa.
  8. In the event a veteran is going to be terminated, the employer must provide the veteran with a written statement showing or listing that the veteran has demonstrated incompetence or misconduct.
  9. The veteran is entitled to a pre-termination hearing, although the statute does not define the nature of quality of a hearing. The employer must show by a preponderance of evidence that the veteran is incompetent or has engaged in misconduct.
  10. The hearing must afford the veteran a reasonable opportunity to present information to challenge the termination. There is no indication that counsel is required or must be allowed as part of the “hearing” process. The burden of proof rests with the employer to show cause for termination of the veteran.

In the event that a public employer fails to act in accordance with these requirements, the covered person may seek mandamus (Court Order requiring specific action) to right the wrong or in the alternative seek judicial review under Iowa Code Chapter 17A. Additionally, the person may bring suit in the district court in the County where refusal occurred and seek a declaration as to whether or not that person fills the requirements of the section. A potential remedy under the Section would be the requirement that the person be hired by the public employer. Note that there are no attorney fees provisions contained in this statute and no indication that attorney’s fees would be awarded. There are also statutory requirements for arbitration if the employers fail to apply the preference, such arbitration to be done in conformance with the American Arbitration Association requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Brown Law Firm | Attorney Advertising

Written by:

Davis Brown Law Firm
Contact
more
less

Davis Brown Law Firm on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.