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Linda E. Brooks Rix

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The Grey Twilight of Veterans' Preference

Posted: 08/11/2013 3:13 pm

In 1944, in fulfillment of a promise made by this country to members of its armed forces, the Veterans' Preference Act was made the law of the land. That Act -- its roots dating to the Revolutionary War and reaffirmed time and again through the decades that follow provides that certain military service confers an entitlement to preferential treatment when an eligible veteran applies for a civilian position in the United States federal government.

It is not a blanket entitlement. Many serve that are not eligible for veterans' preference, as this entitlement is called. And, while all preference eligibles are veterans; not all veterans are preference eligibles. Meaning, to exercise this preference you must have served in a certain war, campaign, or era (such as the Vietnam Era) or earned a certain medal or badge. It is an earned entitlement.

On the face of it, this would seem fair and just -- recognition of the hardships of battle, the economic stress of military service, the delayed career progression, and the emotional toll on family and self. This one small gesture was to help restore the footing underneath those who have chosen, often in the prime career- and income-building years of their lives, to risk everything in service to their country.

And yet, it is highly convoluted and controversial.

On August 1, the House Committee on Oversight and Government Reform held a hearing, the principal focus being veterans' preference. Opening statements by the Committee Chairman and Ranking Member expressed unqualified support for veterans' preference and outrage at potential retaliation against whistleblowers reporting veterans' preference violations. Exuberant Committee members expressed unflagging support for veterans and shared their own stories of military service.

Then, the indignation morphed to confusion, then puzzlement, and then to general uncertainty as testimonies unfolded in front of them all.

Slowly, the issues began to materialize and two conflicting accounts emerged. On the one side, a harmful procedural error occurred requiring a corrective measure. On the other, a pattern of behavior occurred manifested willful and intentional action against veterans.

And so goes the continuing saga of veterans' preference and federal employment. Like the duality of the phrase "Thank you for your service" -- being both ubiquitous and yet profoundly sincere -- veterans' preference possesses a duality of sorts. It is acknowledged as an honorable fulfillment of a nation's promise, and, concomitantly, an advantage that is perceived by many to circumvent meritocracy.

And that's before you get to the convoluted rules of just how it is applied in federal hiring.
In May of 2010, the President issued an Executive Memorandum on Improving the federal Recruitment and Hiring Process. It stated that agencies must implement, by November 1, 2010, a method of hiring called "category rating" instead of the previously mandated procedure called the "Rule of 3" approach.

While this materially changed how veterans' preference was applied in federal hiring, the memorandum's actual focus was on simplifying the hiring process and reducing the time from job posting to hire. Category rating was promoted as a simpler application of veterans' preference which would allow more candidates to be considered than the limitations of the Rule of 3 which only allowed hiring managers to consider the top 3 scoring candidates.

Following his testimony, in an attempt to answer questions from Committee members, the Department of Energy's Inspector General stumbled for an easy definition of category rating, saying that category rating has "many nuances and subtleties."

You can say that again.

In the absolute manifestation of the law of unintended consequences, category rating has done what the Rule of 3 could never do -- it has brought federal hiring to a grinding halt.
In the years since the May 2010 Presidential Memorandum, a very common tale has surfaced. A federal agency runs afoul of a hiring initiative, gets audited by the Office of Personnel Management (OPM) and has its delegated hiring authority revoked, rendering it incapable of making new hires. Not just one agency. Not just a few. But many, many agencies -- in some cases over half of the agencies within a Department. And it is a rapidly growing trend.

And therein lies the problem.

Imagine setting policy with an implementation plan of "release a memorandum and assume all will follow." Where Rule of 3 had very specific procedures, time worn and tested, Category Rating is without structure and has been morphing rapidly as decisions about the appropriateness of each agency's procedures come under the scrutiny of an OPM audit. Rather than dictate a framework of procedural correctness, OPM is defining it as the implementation of Category Rating moves along.

There is a better way.

These are five points of change. Call it, "Contract with America's Veterans" that will fix the underlying issues related to the clumsy and often "black box" activity associated with federal hiring, applying veterans' preference, and the federal government's merit system of employment.

  1. Certify Veterans Once: Veterans need a permanently issued national certification that spells out exactly what preference they're entitled to have. And one that takes any veterans preference adjudication out of the picture for individual HR specialists. Adjudication of veterans preference occurs each and every time a preference eligible applies for a position in the federal government -- each time, a HR specialist repeats the process of determining whether preference applies and the level of preference granted. Not only is this wasteful and repetitive, it results in inconsistent treatment and makes an agency vulnerable to have its hiring authority revoked. This adjudication authority should be given to the Veterans Service Organizations to manage because they have the outreach and accessibility to veterans worldwide and it has the benefit of avoiding the bureaucracy associated with benefits processing agencies like the VA, whose backlog of processing claims and delivering entitlements has made the Department infamous.

  2. Use Technology to Track, Report On, and Alert Agencies on Veterans Preference Violations: Agencies using applicant tracking systems (ATS) should deploy technologies that prevent overrides of veterans' preference and give an immediate alert to the HR specialist or hiring manager or general counsel that the action they're taking is increasing the agency's risk for violation of preference eligibles' rights. Similarly, that ATS should put the brakes on when selection of a non-preference eligible candidate over a preference eligible veteran occurs.

  3. Provide a Noncompetitive Hiring Authority for Veterans: Give every exiting veteran non-competitive hiring authority for two years -- just as the government does with returning Peace Corps volunteers. It's a simple, straightforward, no-nonsense way to hire vets without requiring them to compete for the position. This two-year period would not replace veterans' preference, yet it would give returning servicemen and women status for a soft landing after their time in uniform.

  4. Make the Audit and Revocation of Hiring Authority a Transparent Process: When OPM or a Department revokes an agency's hiring authority, that revocation should be published on OPM's website and the reasons for revocation be clearly identified. The entire federal HR community suffers from lack of clear direction and clarity on best practices and risky practices that lead to violations. Clearly articulating best practices and sharing experiences across the federal community, effectively trains HR specialists -- especially on veterans hiring issues. Better yet, revoke OPM's authority to revoke an agency's hiring authority. Instead, leave that to the Office of Special Counsel, whose role is to prosecute violations of veterans' preference among other things, and the Merit Systems Protection Board whose role is to render judgment on cases brought forward.

  5. Upgrade and Update the OPM Qualification Standards: It is time for OPM to actively engage on a policy function it has long ignored. An underlying reason many people, including many veterans themselves, do not support veterans preference is because there is a very strong perception that preference eligibles that are hired are either not qualified or minimally qualified for the job. In large part, this is due to OPM's failure to maintain specific and strong qualification standards that communicate job requirements clearly and ensure that every applicant that meets the qualification standards established for federal employment are, indeed, fully able to perform in a successful manner in the job.

Tens of thousands of veterans have been successfully placed in positions with federal agencies under the Rule of 3, and there are tens of thousands more who should be placed using Category Rating. But, if agencies continue to lose hiring authority over issues similar to this, the government needs to reassess its approach to hiring, federal HR training and implementation, and ensuring equal protections for all candidates. If agencies have hiring authority revoked on the trajectory OPM is invoking today, not only will veterans lose out on job opportunities, all applicants will lose out.

And the very notion of veterans' preference, as fulfillment of a nation's promise to its military service members, will become so controversial it may not survive.

The solution requires more than pointing to a policy decree and saying, "Do that." It requires rethinking the approach to delegated hiring authority and our nation's commitment to veterans.

U.S. veteran servicemen and women deserve better. So does the American taxpayer.

 

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