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Appeals

Hiring agencies upon non-selection of Veteran applicants must…

  • Mail certified letters to all Veterans who were not selected for a position. Letters must…

    • Be mailed by certified mail
    • Include reason(s) for non-selection
    • Inform the applicant of the right to an appeal hearing
    • Inform Applicant that appeals must be in writing and mailed
      • Within 15 days of receipt of non-selection letter
      • To Commissioner of Veterans Affairs
        • By Certified Mail
        • With copy of letter notice of non-hire
        • Include Address of Commissioner of Veterans Affairs,4201 38th Street S. Suite 104 Fargo ND 58104-7535
      • To hiring agency (copy)
        • By Certified Mail
        • With copy of letter notice of non-hire
        • Include address of hiring agency
  • Provide any documents requested by the Commissioner upon notification that an appeal has been requested by the veteran or eligible spouse

If a hearing is scheduled the employing agency…

  • May be represented by counsel
  • Has burden of proving that veteran or eligible veteran’s spouse did not possess the qualifications required for the position
  • Has burden of proving that any action which was taken was not taken because the applicant exercised the right to veteran’s employment preference
  • May be responsible to reimburse the Office of Administrative Hearings for
    • Hearing officer services rendered
    • Expenses incurred in performing these duties

If the hearing officer finds in favor of the applicant the applicant is entitled to

  • Immediate employment in position applied for or;
  • Immediate employment in an equivalent position
  • Back pay and benefits from date the appointment should have been made
  • Less amounts otherwise earnable through due diligence

A Veteran or eligible spouse wishing to appeal a non-selection decision by a hiring agency must…

  • Submit appeal within 15 days of receipt of employers letter notifying of non-selection for position

    • To Commissioner of Veterans Affairs, 4201 38th Street S. Suite 104 Fargo ND 58104-7535
      • In writing
      • By certified mail
      • With copy of employers letter notifying veteran of non-selection for position
    • To employing agency
      • Copy of appeal
      • By certified mail
      • With copy of employers letter notifying veteran of non-selection for position
  • Provide documents requested by Commissioner

  • Veteran may be represented by counsel if an appeal hearing is scheduled

A Veteran or eligible spouse within one year of exercising veteran’s employment preference may file a Grievance Appeal if the veteran is…

  • Discharged;

  • Has had compensation reduced; or

  • Is otherwise subject to action by the employing agency designed to cause the veteran or qualified veteran’s spouse to resign or quit employment; if

  • The Veteran feels the employing agency took any of the above-described action due to the exercise of employment preference.

The Veteran or eligible spouse must…

  • Submit appeal within 15 calendar days after any action taken by employer or employing agency
    • To Commissioner of Veterans Affairs, 4201 38th Street S. Suite 104 Fargo ND 58104-7535
    • In writing
    • By certified mail
    • With identity of employer or employing agency
    • With description of action taken by employer or employing agency
  • To employing agency
    • Copy of appeal
    • By certified mail
  • If the hearing officer finds the employing agency took any of the actions described by the Veteran or eligible spouse the hearing officer shall…

    • Order the employing agency to cease and desist from such action; or
    • Reinstate the Veteran or Qualified spouse

Commissioner upon receiving an appeal by certified mail may…

  • Request documentation from Veteran

    • Copy of certified letter from employing agency
    • Copy of job position advertisement
    • Copy of application supplied to employing agency
    • Documentation that Veterans Preference was requested
    • Copy of DD214 or NGB 22
    • Performance evaluations
    • Other documents that may apply
  • Request documentation from employer or employing agency

    • Copy of Certified letter mailed to veteran
    • Copy of return receipt of certified letter
    • Copy of job position advertisement
    • Copy of application procedures/instructions
    • Copy of job position description
    • Copy of veterans application & accompanying documents
    • Copy of Veterans cover letter
    • Copy of Veterans resume
    • Copy of interview questions
    • Copy of application of person awarded the position
    • Copy of DD214 or NGB 22 supplied by Veteran & disability if applicable
    • Back ground check
    • Rating sheets of Veteran and person awarded position
    • Performance evaluations
    • Other documents that may apply
  • Determine if documents show evidence that Veterans employment preference violation may have occurred and if a hearing is justified

  • Mail letter of determination to Employer and Veteran or Eligible Spouse

If the Commissioner determines that a hearing is justified, within 15 days of receiving request for an appeal the Commissioner may…

  • Request the Director of the Office of Administrative Hearing to designate a hearing officer to hear the grievance.

  • Notify the employer or employing agency that a request for a hearing has been made.

The Director of the Office of Administrative Hearings shall…

  • Appoint a hearing officer

The hearing officer shall…

  • Hold the hearing within thirty calendar days after the request is receive by the Director of the Office of Administrative Hearings

    • Notwithstanding the time limitation the Hearing Officer may postpone or continue the hearing for good cause at the request of a party
  • Within Fifteen calendar days after the hearing is concluded, briefs filed and arguments closed issue:

    • Findings of fact
    • Conclusions of law
    • An order

The order of the hearing officer is binding on both parties, subject to appeal

Any party aggrieved by the findings of fact, conclusions of law, and order of the hearing officer may appeal in the manner provided for in NDCC 28-31, except that the appellant need not execute an undertaking

 

Resource: Veterans Preference Laws NDCC37-19.1NDCC37-01-40 and OAG MEMO