If you don’t get federal job preference, speak up - Military Law, Military Law Advice, Ask a Lawyer - Military Times

If you don’t get federal job preference, speak up

I’ve been getting questions lately on the Veterans Employment Opportunities Act, no doubt because my fellow Military Times columnist, retired Coast Guard Command Master Chief Petty Officer Alex Keenan, recently has written about this law and the federal government’s failure to comply with it.

Due to space limitations, I’m not going to discuss who is protected under the VEOA and how to get veterans’ preference (it’s easy if you’re a veteran). I recommend that any veteran looking for a federal job visit this Web site, which provides tons of information: http://www.opm.gov/veterans/html/vetguide.asp.

Since the VEOA became law, many people have argued that the system doesn’t work, and that veterans applying for vacancy announcements are treated the same way all applicants are treated, without any preference to those eligible under the law.

Some veterans say they are being kept off the list of eligibles due to service as a reservist or injuries they received in combat — both violations of another law called the Uniformed Services Employment and Reemployment Rights Act. The only place the VEOA is being adequately applied, vets say, is on such things as the Park Police Officer exam.

The VEOA provides a system for redress similar in nature to the USERRA system, discussed in one of my first articles, archived online at http://www.airforcetimes.com/community/ask_lawyer.

First, any preference-eligible person who thinks he is wronged in the hiring process can file a complaint with the Labor Department. (Find the nearest office online at http://www.dol.gov/vets/aboutvets/contacts/main.htm.) But you must file the complaint within 60 days of when you learned you did not get the job.

This and all the other timelines discussed here are firm, so be sure to file your complaint quickly. You have nothing to lose by filing the complaint if you did not get the job, so you should file just to find out if everything was done properly.

If no decision or settlement has been reached with the Labor Department after 60 days, or within 15 days after the department issues a ruling, a veteran may file a complaint with the Merit System Protection Board. You should file your complaint with the MSPB online at http://www.mspb.gov as soon as possible.

Until recently, the system of veterans’ preferance has not been very useful to veterans seeking jobs, mainly because, in my opinion, they have not always pursued their rights under the law.

Recently, the MSPB overturned a decision in Isabella v. Department of State. Mr. Isabella, who is my client, applied under a vacancy announcement for the position of special agent with the State Department.

Special agents must be appointed to the position prior to their 37th birthday. While his application was pending, Mr. Isabella turned 37 — and was no longer considered for the position by the agency. The MSPB found that because the maximum entry age was not essential to the performance of the duties of the position, the agency should have waived this age requirement due to veterans’ preference laws.

As a result of that case, other veterans eligible for this preference will have the opportunity to qualify for vacancies that were previously just out of reach.

The MSPB also ruled that the agency must make things right by complying with the law. The board may award compensation to veterans who lost wages or benefits because the agency did not consider a veteran’s preference eligibility. If the board thinks the agency “willfully” violated the law, it may also award a veteran back pay, attorney’s fees, and the cost of taking the case to court.

Without agency recognition, there is little that can be done besides litigating claims, which can be costly and time-consuming. But this recent decision hopefully will encourage agencies to do a better job in training employees to apply veterans’ preferences when filling vacant positions.

I’m proud to be among the few attorneys pushing for new laws and for the strengthening of existing laws to help veterans. Please keep your questions and concerns coming.

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Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He also is the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.