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Submission For The Record of Ronald F. Chamrin, American Legion, Assistant Director, Economic Commission

 

Madam Chairwoman and Members of the Subcommittee:

The American Legion commends the Subcommittee for addressing the important issue and value of veterans’ preference in hiring.

Veterans’ Preference is and must always be regarded as an earned privilege afforded to those veterans who have answered the call of duty and served their country in one of our nations Armed Forces.  It should not be categorized as an affirmative action program for veterans in order to become competitive and gain employment within the federal government.

The American Legion urges this Congress to take action and correct the current faults in the administering of veterans preference in hiring.   The veteran must be the ultimate benefactor of veterans’ preference and regulatory laws as compared to the current systems limited post violation punishment of non-compliant actions by federal agencies.

Viewpoints on Veterans Preference

The American Legion supports the strongest veterans’ preference laws possible at all levels of government and opposes any attempt to weaken such laws.

The American Legion opposes the outsourcing of all Federal Jobs held by veterans and disabled veterans without the protection of Reduction in Force policies and veterans preference.

The American Legion strongly urges the strengthening of veterans’ preference in federal, state, and local government and opposes any efforts to reduce or circumvent veterans’ preference. 

The American Legion seeks to ensure that veterans receive employment preference from employers who receive grants and contracts from the federal government and employment preference from employers that receive funding on all federally assisted projects.

The American Legion urges Congress to amend Public Law 101-509 to include age waivers or other means to allow those who have served honorably in the military as law enforcement officers to continue their professional careers in federal law enforcement positions after retirement.

STRENGTHENING THE ENFORCEMENT OF VETERANS’ PREFERENCE

The Office of Personnel Management (OPM), Department of Labor Veterans and Employment Training Service (DOL-VETS), and the Merit Systems Protection Board (MSPB) all have roles in veterans’ preference but there is no clear enforcement of the regulatory authority within any of these agencies.  There are no effective consequences for non-compliance or proactive regulation of veterans’ preference and veterans hiring to ensure that veterans do indeed benefit from this earned benefit.

OFFICE OF PERSONNEL AND MANAGEMENT  (OPM)

OPM testified to Congress that their role is Oversight and Accountability that entails audits and their corrective actions are limited.  Because they delegated examining authority to Federal agencies, one of their main tools is an audit. 

“As part of our oversight of human capital management responsibilities at OPM, we use an audit-based approach to ensure that competitive hiring practices used by Federal agencies comply with veterans’ preference laws and merit system principles.  Our audits cover all aspects of competitive examining, including the application of veterans’ preference.  We also annually conduct Human Resource Operations Audits that examine a number of agency human resources (HR) programs, including competitive examining and the use of veteran hiring authorities and practices.” 

OPM further states that their corrective actions are:

  1. Direct an agency to give a veteran priority consideration for the next job vacancy for which he or she is qualified if OPM believes that veteran was denied preference previously. 
  2. If evidence is found that veterans’ preference was knowingly denied, which is a prohibited personnel practice, the matter is referred to the Office of Special Counsel or the agency’s Inspector General. 
  3. Withdrawal of an agency’s delegated examining authority if systemic problems are found. 

The American Legion notes that OPM does not state the extent and over reaching implications of their corrective actions.  Referral to the Inspector General of the respective agency must be followed up with an assessment of the outcome of the IG’s findings and the action taken to address the claim of denial.    Unfortunately, there appears to be no mechanism in place apart from the appropriate Congressional Authorizing Committee and their influential legislative power to provide oversight.

Furthermore, if an agency must then refer to OPM for examinations it is unclear what insurances are afforded to veterans to regain their competitive advantage within that agency for hiring if OPM must take on the examining role.  Any anti-veteran reprisal or culture must quickly be stopped.

DOL-VETS

DOL-VETS states that they are an investigatory body of veterans’ preference laws and may refer cases to the Merit Systems Protection Board (MSPB) or the Department of Justice Office of Special Counsel (OSC).   DOL-VETS has absolutely no enforcement, punishment, or regulatory authority over any agency regarding infractions or complaints of unjust application of veterans’ preference.  DOL-VETS can question and advise a federal hiring division but the federal agency is not mandated to follow this advice.

VETS testified to the Senate Committee on Homeland Security and Government Affairs on March 2006 on their veterans’ preference actions the following: 

“VETS is responsible for investigating and attempting to resolve Veterans’ Preference complaints against Federal agencies filed under the Veterans Employment Opportunities Act (VEOA).  The VEOA provides that a veteran or other preference eligible who believes that his or her rights under any law or regulation related to Veterans' Preference have been violated, may file a written complaint with VETS.  We carry out our responsibility under the VEOA through the use of trained investigators in each of our state offices.  

DOL-VETS investigatory authority is just that, an investigation, however hollow inquiries without the support of enforcing corrective actions when a fault is found is non-productive and does not help veterans to the full extent possible.

The Merit Systems Protection Board (MSPB)

The MSPB states:

“The relationship of the Special Counsel to the Board is like that of a prosecutor to a judge; the Special Counsel prosecutes cases before the Board. If, after an investigation, the Special Counsel determines that there are reasonable grounds to believe that a violation has occurred or may occur it may seek corrective actions.”

However, the OSC refutes the responsibility of enforcing orders in Title V section 2302 in relation to veterans’ preference.  (See below)

While the MSPB serves as an independent, bipartisan guardian of the Federal Employees merit system they do not track or have research analysis of any veterans’ preference cases and violations.  The MSPB has further stated that they do not work with federal agencies of which The American Legion finds unacceptable.

The MSPB has stated in testimony the following:

“The MSPB has not conducted any studies that systematically address the issue of agencies’ adherence to veterans’ preference.  For this reason, we have no basis to form an opinion on how well other agencies are complying with veterans’ preference requirements.    Instead, adherence to veterans’ preference is best determined on a case-by-case basis, and assessing overall agency adherence to veterans’ preference requires an in-depth understanding of each agency’s particular hiring practices and decisions.”

MSPB’s failure to conduct studies of veterans’ preference is counterproductive to enforcing the law.  The American Legion urges MSPB to study and track compliance with veterans’ preference laws in hiring within the respective Federal agencies.  Tracking by MSPB will not only serve to ensure that veterans’ preference is indeed being implemented, but will also improve oversight of specific cases of denial of this benefit.

The Department of Justice Office of Special Counsel (OSC) relation to veterans’ preference

If an agency fails to remedy a prohibited personnel practice upon request by the OSC, corrective action may also be obtained through litigation before the MSPB. Such litigation begins with the filing of a petition by the OSC, alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by the MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney's fees, back pay, medical and other costs and damages.

The OSC testified to the Senate Committee on Homeland Security and Government Affairs on March 2006 that:

“OSC provides relief under Title 5 of the U.S. Code to veterans under our authority granted in the Civil Service Reform Act, also known as a prohibited personnel practices. Section 2302 (b) (11) forbids managers from taking, or failing to take, a personnel action if it would violate a veteran’s preference law. However, for OSC purposes, the most significant change to title 5 is set forth in section 2302(e)(2), which states that the MSPB does not have authority to order corrective action for (b)(11) violations and, in turn, divests OSC of authority to seek corrective action for such violations. Hence, OSC’s role with respect to allegations of violations of § 2302(b)(11) is limited to seeking disciplinary action in appropriate cases.”

“Title 5, United States Code, section 2302 (e) states that ‘no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11)’ [providing that violating veterans’ preference requirements is a prohibited personnel practice].”

OSC continues to state:

“A person alleging a prohibited personnel practice under § 2302(b)(11) may seek redress by filing a written complaint with the Secretary of Labor within 60 days of the alleged violation. Further, the veterans’ preference laws require the Secretary of Labor to investigate the complaint and, upon determining that a violation occurred, to attempt to resolve the complaint by making reasonable efforts to ensure that the agency complies with the statute or regulation relating to veteran’s preference. The task of investigating the complaint is delegated to Department of Labor’s Veterans’ Training and Employment Service (VETS). If VETS is unable to resolve a complaint within 60 days, it is to provide notification of an unsuccessful effort to resolve the complaint to the complainant. Upon receipt of a notification of an unsuccessful effort to resolve the complaint to the complainant, the complainant may elect to appeal the alleged violation to the MSPB. “

As stated earlier, the MSPB has not conducted any studies and has even stated that they do not work with federal agencies.  There is clearly a vacuum; there is no clear authority and proactive corrective measures or even actions taken.

The American Legion is deeply concerned with the protection of the veteran and the prevention of illegal and egregious hiring practices. Currently, veterans are filing claims after the non-compliance employment event occurred and therefore may become financially disadvantaged. 

The American Legion asserts our position that protection of veterans’ employment rights should be concurrent and continuous oversight must be emplaced to protect veterans from unfair hiring practices, not just reactionary investigations and lawsuits.  We further state that the veteran must be protected at the onset of the hiring process, especially because a corrective action to remedy the veteran’s plight is not guaranteed. 

Use of Multiple Certificates for a Single Position Weakens “Pass over” Rules

Title 5, United States Code, section 3318(b) protects veterans’ preference by requiring a special review process where an appointing authority proposes to pass over a preference eligible on a certificate in order to select "an individual who is not a preference eligible." In addition, certain disabled veterans’ are provided notice and the opportunity to respond to the proposed pass over. (See 5 U.S.C. § 3318(b)(2).) 

When this pass over law was passed, agencies prepared only a single certificate for each open position.  However, over time agencies began to prepare separate certificates for each different hiring flexibility option that might be used to fill the position.  Agencies began to fill a single position by choosing from among multiple certificates.  The use of multiple certificates at the current time means that an appointing authority may pass over a preference eligible, at the top of one certificate, simply by choosing from another certificate drawn from a hiring authority that does not require application of veterans’ preference.  This weakens veterans’ preference and renders impotent the important section 3318 protections against pass overs.

The National Security Personnel System (NSPS) should incorporate important pass over protections into its system.  Additionally, the NSPS should not allow the creation of multiple certificates or lists for a single position. 

Lack of Hierarchy in Appointment Methods

A number of hiring flexibility options are available under the current federal hiring system.  If hiring authorities that do not apply veterans’ preference continue to exist, The American Legion believes that appointment methods requiring application of veterans’ preference should explicitly be favored over other methods and top the hierarchy of appointment methods.  The NSPS should only be able to resort to a lower hiring flexibility in limited cases when there is an absolute necessity.

RECOMMENDATIONS

TAP recruitment

The federal government should heavily recruit transitioning servicemembers because they are qualified and they have at least a 5-point veterans preference if honorably discharged.  Hiring agencies can easily use the Veteran Recruitment Authority (VRA) to hire veterans.  OPM regulations state that this can be applied to:

  • Veterans who served on active duty in the Armed Forces during a war declared by Congress, or in a campaign or expedition for which a campaign badge has been authorized;
  • Veterans who, while serving on active duty in the Armed Forces, participated in a military operation for which the Armed Forces Service Medal was awarded; and
  • Veterans separated from active duty within 3 years

Hundreds of thousands of recently discharged veterans have been awarded medals for their service to defend our country that make them eligible to receive a VRA appointment.  These veterans have skills such as an accelerated learning curve, leadership, teamwork, diversity and inclusion in action, efficient performance under pressure, respect for procedures, technology and globalization, integrity, conscious of health and safety standards, and the ability totriumph over adversity

Executive Order 13289 established the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal that is awarded for anti-terrorism operations around the world. (Federal RegisterVol. 68, No. 50 Friday, March 14, 2003) The Department of Defense can provide more detailed information about the requirements of such awards and the number of veterans receiving these awards. 

Veterans Employment Opportunities Act VEOA 1998

The American Legion recommends omitting the “knowingly” portion of the VEOAThe wording of knowingly allows for an agency to unintentionally, or in some cases, neglectfully, not apply veterans’ preference.  We believe that the word “knowingly” be stricken so that the law will have the mandatory effect of enforcing veterans preference laws. I.e. The law is now in place and even if an agency inadvertently was prejudice against a veteran they failed to adhere to the law.

“The Veterans Employment Opportunities Act of 1998 law gives veterans access to Federal job opportunities that might otherwise be closed to them. The law requires that:

“The law also establishes a redress system for preference eligibles and makes it a prohibited personnel practice for an agency to knowingly take or fail to take a personnel action if that action or failure to act would violate a statutory or regulatory veterans' preference requirement.”   (DOL-VETS)

Clearly, omitting the verbiage “knowingly” would place lawful prohibition to offenders even for negligence and inattentiveness of veterans’ preference.

Disabled Veterans Affirmative Action Program (DVAAP) should be renamed to the  “Warrior Recruitment Act”

OPM states that most departments and agencies in the Federal government are required to have an affirmative action program for the recruitment, employment, and advancement of disabled veterans. The law requires agencies to develop annual Disabled Veterans Affirmative Action Program (DVAAP) Plans. Each year, agencies must submit DVAAP accomplishment reports to OPM. The accomplishment reports must describe agency efforts to promote the maximum employment and job advancement opportunities for disabled veterans as well as certain veterans of the Vietnam era and of the post-Vietnam era who are qualified for such employment and advancement. As part of their submission package, each agency must include a signed statement certifying that the agency has an up-to-date DVAAP plan.

By amending the DVAAP to “Warrior Recruitment Act”, the lexicon will be harmonious with the current labeling of troops of todays military.  Removal of the term disabled will assist in eliminating unwanted, negative stereotypes and replace it with a confident, capable, proven, dedicated, and disciplined individual. 

Furthermore, veterans are not an affirmative action group, do not view them selves as one, and have not requested affirmative action.  They are our nations heroes who have unfortunately been injured while performing duties of our country and should be given every opportunity to contribute and thrive in our society.

Accountability for actions - P.I.P. report (project improvement plans)

A report from each federal agency to Congress, specifically, the authorizing committees of each federal department, would mandate that each federal agency have a plan to implement best hiring practices, methodology, and accountability for veterans hiring.  If the targets of hiring veterans are met then the mechanics of how these goals were met needs to be shared.  If veteran hiring targets are not met, then a plan must be immediately enacted to fix the situation to ensure that they are met.  Positive reports will be visible and positive productions for the federal agencies that meet these goals. 

Mandatory training of Veteran Preference laws with competency based tests

The Human Resources (HR) personnel and hiring decision makers of all federal agencies should be required to go through performance evaluations on veteran hiring to ensure that each HR and decision maker is competent in applying veterans’ preference.  The current system, administered by OPM, consists of a tutorial class where simply checking a block to verify that an individual knows veterans’ preference laws is acceptable.  The recurring occurrence of knowing veterans preference laws, in contrast to applying veterans preference laws, will be alleviated.

A report and the implementation on the 30% hiring authority of all federal agencies

Each agency should be able to report their scoring mechanism through internal oversight.  The scoring mechanism should be uniform throughout the agency and for each position of employment.  Because a report is required, this should uncover any inconsistencies within the agencies and force them to “self reflect” and correct inequities in the hiring practices.

Notification letter of a selection of another applicant or a denial of appointment to a veteran must include why they were not selected for the position

A veteran deserves to receive notification that their application was received, reviewed, the score that they were awarded, and if denied the reasons why they were denied for the position.  By enacting procedural requirements, agencies will also be forced to either revise their job descriptions to synchronize with the denial letter and therefore ensure that if the veteran is denied, it is because they are not qualified or, educate and encourage veterans to improve their skills to meet the requirements for certain positions and therefore strengthening the applicant pool. 

This letter can be very similar to the Veterans Claims Assistance Act of 2000 (VCAA) notice in VA compensation and pension claims.  These duties would include the duty to notify a applicant of any information necessary to complete an application; the duty to notify the applicant of any information that is necessary to substantiate the application; the duty to notify the applicant of which information the applicant must provide and which portion the agency will attempt to obtain, and the duty to notify the applicant of their score and the relationship to the other candidates.  

U.S. Postal Service is contracting jobs out and no longer applying veterans preference (A-76)

The longstanding policy of the federal government has been to rely on the private sector for needed commercial services. To ensure that the American people receive maximum value for their tax dollars, commercial activities should be subject to the forces of competition.

This circular from the Office of Management and Budget has inadvertently allowed for the Postal Service to contract many of their jobs of which do not apply veterans’ preference. The contractors are gouging the labor market by lowering the salaries and standards and therefore are awarded bids by being a low bidder.  Because of this, they are hiring whomever they want at a low rate however; there have been trends of these same contractors are negotiating larger payments in sequential years.  Another problem arises because the government has paid to train postal employees and then pays again to a contractor to train more employees thereby doubling the number of qualified specialists.  Finally, once the contractor is established they hire the prior postal employees at lower salaries than they previously made.  The American Legion reiterates the opposition to outsourcing of all Federal Jobs held by veterans and disabled veterans without the protection of Reduction in Force policies and veterans preference.

The American Legion seeks to ensure that veterans receive employment preference from employers who receive grants and contracts from the federal government and employment preference from employers that receive funding on all federally assisted projects.

The 10-Point Derived Preference (XP) must have a better outreach, visibility, and use by federal agencies

OPM regulations allow for “Ten points to be added to the passingexamination score or rating of spouses, widows, widowers, or mothers of veterans meeting certain requirements. This type of preference is usually referred to as "derived preference" because it is based on service of a veteran who is not able to use the preference.”

“Both a mother and a spouse (including widow or widower) may be entitled to preference on the basis of the same veteran's service if they both meet the requirements. However, neither may receive preference if the veteran is living and is qualified for Federal employment.” 

The American Legion is concerned for the family members of veterans; the 10 point derived preference should be briefed to family members at Military Treatment Facilities, TAP sites, family support groups, and within each agencies HR division.  Recipients of this preference should be actively sought to gain employment with the federal government.

 Enforcement mechanism to hold human resource managers accountable for not applying veterans’ preference in appointments to the NSPS should be added to NSPS regulations

There is a definite need for the creation of disciplinary action under 5 U.S.C. § 1215 or a similar statute, should a violation of a veterans’’ preference prohibited personnel practice occur in the NSPS.  Such disciplinary action is available for violations of other prohibited personnel practices.

The NSPS regulations should also establish an Office of Veterans’ Preference Compliance in order to ensure an ongoing, vigilant review of NSPS hiring and RIFs with regard to veterans’ preference.  The Office of Veterans’ Preference Compliance within NSPS should have the power to investigate and prosecute violations of veterans’ preference so that there is prompt, appropriate corrective action, such as hiring or other actions, to make a veteran "whole" again.

CONCLUSION

There have been estimates that approximately 60% of the workforce will retire by 2020 and these people must be replaced by competent, educated, and capable individuals in order to assure the United States competitive edge in the world.  The veterans of this nation make up a well-qualified disciplined pool of applicants.  Veterans’ Preference laws must be strengthened and enforced to ensure that veterans seeking employment are given their due consideration in hiring.

The American Legion appreciates the opportunity to present this statement for the record.