Following spat, OPM updates federal veterans preference rule

Following spat, OPM updates federal veterans preference rule

Federal veterans preference has been updated with interim rules changes by the Office of Personnel Management (OPM) designed to provide agencies greater clarity over eligibility and how to implement the practice more fairly for all veterans.

The changes are as follows:

  • Eligibility and process for extending preference to sole survivorship discharges and releases
  • Allowing federal agency use of “Rule of Three” to select candidates as well as category rating
  • Providing clarity in the existing requirements for consideration for excepted service hiring
  • Added an end date to Operation Iraqi Freedom, which affects veteran eligibility for hiring preference.

These changes come after OPM and the Merit Systems Protections Board (MSPB) — “independent, quasi-judicial agency in the Executive branch” that exists to protect the rights of Federal employees, Federal merit employment systems, and identify prohibited personnel practices — engaged in a public spat in August 2014 over the application of federal veterans preference. MSPB had surveyed federal managers and employees who found the rules surrounding veterans preference were confusing and uneven in their application, and released a report criticizing the state of veterans preference.

OPM’s interim rule changes, which went into effect and published in the Federal Register on Dec. 29, 2014, seeks to to bring agency practices in line with two laws, the Hubbard Act of 2008 and the VOW to Hire Heroes Act of 2011. Comments on the rules changes may be made through the Federal Regulations.gov portal through Feb. 27, 2015.

Download our free Guide to Veterans Preference here

The Hubbard Act allows preference eligibility for service members discharged or released from active duty for sole survivorship (after the enactment of the law on August 29, 2008). Sole survivorship discharges are requested by an active duty individual who is the only surviving child in a family whose brother, sister or parent serving in the military was killed or permanently injured.

Additionally, the Veterans Opportunity to Work (VOW) to Hire Heroes Act was signed into law in November 2011, and required agencies to provide hiring preference to active duty service members (just as they would other veterans eligible for preference), provided the active duty service member applying for a federal position submits a certification stating they expect to be honorable discharged within 120 days.

OPM’s rule change for sole survivorship is as follows, and brings that class of veteran in line with other veterans eligible for hiring preference:

“A member of the armed forces may start his or her civilian job search prior to discharge or release from active duty and thus will not have a Department of Defense [DD] Form 214, Certificate of Release or Discharge from Active Duty, when applying for Federal jobs. Section 2108a ensures that an individual does not lose the opportunity to be considered for Federal jobs [and awarded their veterans’ preference entitlements] despite not having a DD Form 214 to submit along with a resume.”

As long as the active duty service member submits the certification in place of a DD214, federal agencies must accept the application and apply veterans preference, provided other eligibility and qualifications are met. Within 120 days after the certificate has been submitted by the active duty service member, agencies must use DD214 or other documentation to verify that the separation occurred prior to appointment.

“OPM does not construe the statute to require the submission to be made in the first instance to the officer who makes the appointment,” the agency said. “Veterans’ preference for Federal employment is not adjudicated and awarded by the appointing officer. Rather, by statute, veterans’ preference is awarded earlier in the hiring process, at the time of examination.”

OPM is also allowing agencies to return to the Rule of 3 rating and ranking of candidates — where the selection must be made from the highest three eligible candidates available for a particular position — in addition to allowing use of category rating.

“In addition, OPM is updating its regulations to reference existing requirements for the order of consideration for traditional rating and ranking of candidates, as well as the alternative ranking and selection procedure called ‘category rating;’ to more clearly state the existing requirements for order of consideration in excepted service hiring; and to add a reference to the end date of Operation Iraqi Freedom, which affected veteran status and preference eligibility,” OPM wrote.”This action will align OPM’s regulations with the existing statute.”

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