Frequently Asked Questions
Questions Regarding Qualifications
1. Should a more explicit request be made to have veterans identify their preference in their letter of application?
Applications or other forms used to invite applicants to apply for public employment should be explicit about the availability of the preference, the evidence required to qualify for the preference, and the time within which evidence must be supplied.
2. If a veteran meets the minimum qualifications for a position such as education, do you have to hire the individual?
Non-merit system agencies - a veteran is to be hired if he or she possesses the qualifications necessary for the position. See N.D.C.C. § 37-19.1-02, subsection 02. Merit system agency - non-disabled veteran receives five points to be added to the "examination score." See N.D.C.C. § 37-19.1-02, subsection 04.
3. Is an applicant considered a bona fide veteran if they do not furnish the DD214 Report of Separation form during the application process?
Non-merit system agencies - depending on whether application process informed veteran of requirement (i.e. application form that asks if applicant is claiming veterans' preference and notes documentation required). Merit system agency - no
4. How extensive can an agency be in establishing tests to ensure that a veteran meets the minimum qualifications for a job?
Testing for ensuring qualifications for a job should be the same for all applicants, whether veteran or non-veteran. The extent of testing is at the agency's discretion and it should be applied uniformly to all applicants to determine qualification for a position which has been announced.
5. Under what conditions can a disabled veteran be determined not qualified for a position?
Disabled veterans would not be granted a preference if the disability "renders them unable to properly perform the duties of the position applied for." See N.D.C.C. § 37-19.1-02, subsection 1. Further, if a merit system agency is involved, the law requires "justifiable cause" for an agency not to hire a disabled veteran.
6. Can minimum qualifications advertised for an opening be greater than the minimum qualifications of the job class?
If the published minimum qualifications for the job class are too general and non specific to accurately describe the needed qualifications for the particular job in question, the agency should determine the specific qualifications needed. These specific qualifications should be prepared in written form for advertising the vacancy. It is very important to establish specific detailed qualifications for the job in question so the advertised job announcement is complete, and so the agency and all applicants know the criteria to be fulfilled.
7. Can an agency deviate from the minimum qualifications for an applicant with veterans' preference, e.g. can veteran substitute business management degree for business administration degree?
Deviations from minimum qualifications on vacancy announcements should not be made on the basis of the applicant's veterans' status. If a deviation is made, same deviation for veterans and non-veterans.
8. How many times may an individual use veterans' preference when applying for a job? Does it have any bearing if the employee is already employed?
The veterans' preference law places no limits on the number of times an individual may claim veterans' preference. A district court opinion reviewed the legislative history of the veterans' preference law in North Dakota. The court concluded that the legislature did not intend that an employment preference be granted to veterans in situations of promotions and transfers.
9. How can job announcements be written to insure that those who qualify for the position possess the knowledge and skill needed to perform competently?
By performing job analysis to determine proper knowledge, skills, abilities, and minimum qualifications. Also, look at the education and experience of past employees and incumbents.
10. How can agencies more quickly decipher the DD214, Report of Separation form when determining service dates, qualifying medals/citations, etc.?
-First, look at "Date of Rank" and "Effective Date" (discharge) to determine if applicable time period within those dates.
-If not, check "Decorations, Medals, etc." to see if applicant received any specific Medal, (i.e. Desert Storm, Berlin, Grenada)
-Finally, look at "Total Active Service" - often the last DD214 issued includes only last or current period of service. If total Active Service is 20 years, some of that time would have been during a period of war.
11. If a veteran is placed on the merit system certificate and the agency advertises with a preference that disqualifies the veteran - who is responsible for notifying the veteran by certified mail?
The agency, because a preference is not a requirement. Therefore if a veteran appears on a certificate, the veteran meets the minimum qualification, and is not disqualified for not having the preferred education or experience.
12. What criteria could an agency use to determine if an applicant qualifies for a job?
Minimum qualifications on vacancy announcement. Pre-determined oral interview questions (After interview - reference checks from former employers) work samples - assessment centers - work simulations.
13. Can agencies establish a scoring requirement at the beginning of the application procedure thus eliminating those applicants who do not pass the beginning steps?
Depending what is on the vacancy announcement in terms of minimum qualifications - if they require only a bachelor's degree in no specific field, then the "scoring requirement" cannot disqualify someone who has the degree, even if it is not in the "preferred" area. In advance, set up oral interview questions, and then determine the number of questions needed to pass. Some applicants may be disqualified based on this process.
Questions Regarding Interviewing and Hiring
1. How should interviews be documented?
Interviews should be documented by having a standard set of job-related questions, with a predetermined satisfactory answer. These questions should be asked of all candidates interviewed. Responses should be written down by interviewer or interviewing panel and retained for future reference (usually this process determines who the best candidate is).
2. If any agency uses a scoring system which includes giving a veteran additional points and the veteran's score does not meet the agency minimum score, does the veteran have to be interviewed or hired?
If the agency is a merit system agency, the points are added prior to the employing agency receiving the names and the answer is spelled out in N.D.C.C. § 37-19.1-02. If the agency is non-merit system agency, there is no statutory authority to use a point or scoring system. If the veteran is found to meet the qualifications, even though not the best qualified, the veteran is entitled to the position.
3. Do all veterans have to be interviewed for a job opening or can an agency supply a selection process to narrow a group that will be interviewed?
Non-merit system agencies. If the application and related materials clearly indicate that veteran does not meet the basic qualifications for the position, an interview is unnecessary. If the agency is unsure, it is safer to grant an interview. Many professional positions require an interview to fully assess an applicant's qualifications. If that is the case, any veteran who appears to meet the basic qualifications should be interviewed.
Merit system agencies. Agencies should interview from the top of the certificate down. This will necessarily include all disabled veterans since they are automatically placed at the top of the certificate of eligibles. Non-disabled veterans who do not score above the cutoff would not have to be interviewed.
4. Must agencies notify all veteran applicants that they were not selected for the position?
Non-merit system agency. When a veteran applicant is determined by a non-merit system agency not to be qualified for the position, notification must be sent informing the veteran applicant of that fact. Any time a veteran is determined by the agency to "not possess the qualifications required for the position" then certified mail notice of that determination must be sent to the veteran applicant. See N.D.C.C. § 37-19.1-04. Merit system agency decisions are treated in question 15.
5. How can the most competent individual be chosen for a position under the constraints imposed upon agencies?
It may sometimes happen that the most qualified candidates are not hired because of the application of the veterans' preference laws. However, that is an effect of the decision the legislature has chosen by its adoption of the law. Any hiring preference may have that effect in some instances. It is extremely important that an agency take the time to think through the necessary qualifications for a position and to include them in any job announcements. In that way, you can be assured that only those individuals possessing the qualifications necessary to properly do the job will be hired.
6. When a veteran is no. 15 on either a specific vacancy or open register certificate and the hiring authority only interviews the first 10 candidates, is it necessary to notify this candidate by certified mail that they were not hired.
7. What constitutes "justifiable cause" for not hiring an eligible veteran or disabled veteran with a higher merit score than the candidate who was selected for the position?
The law does not specifically define what "justifiable cause" means. Section 37-19.1-02, subsection 1 contemplates that if a veteran has a physical or mental disability which renders the person unable to properly perform the duties of the position applied for, that veteran need not be hired. That certainly would constitute "justifiable cause." In addition, particularly with professional positions, there may be somewhat intangible qualities or qualifications an employer requires for a position. These may include such things as leadership abilities, interpersonal skills, and abilities to effectively communicate. These kind of qualities may not be discerned from a paper review of the application and related documents. Such qualities can normally only be ascertained through an interview process and sometimes via detailed reference checks. In such cases, the veteran with the higher merit system score may be disqualified following an interview or reference checks. It is certainly arguable that not hiring such a person would constitute "justifiable cause" under the meaning of the statute. As this statute is applied and individual cases are heard, the hearing officers and the courts will undoubtedly further expand on what constitutes "justifiable cause."
8. Must you hire a veteran when...
A. Reference checks are poor?
No-if reference checks of former employers are documented and show that former employer would not rehire the individual (Reference should have direct knowledge of applicants work).
B. A veteran was previously employed and work performance was below average - must you rehire?
No - if previous employee had unacceptable performance, a rehire would not be required. (judgemental)
C. A veteran has been in the State Hospital as a patient and also in prison?
Depending on why the individual was in the state hospital or prison. If reasons were related to type of job, hiring would not be required (i.e. child molester for daycare center or embezzlement for individual who handles cash transactions). However, if person was convicted of a crime which does not relate to the duties and responsibilities of the position, that cannot be used against the veteran or any other candidate.
D. A veteran has poor communication or writing skills and skills are required to perform duties?
No - if demonstrated in the interview and related screening that those skills are needed and the veteran or any other applicant does not possess those skills. The applicant is not qualified.
E. A veteran was released from the state prison one month prior to applying for position?
See "C." above. Timing of release is not an issue.
F. A veteran has drinking problem and denies it?
Who made the determination that a problem exists? The hiring authority must have direct knowledge of the problem - hearsay is not good enough. This is a very touchy area.
G. A veteran's work record is poor, e.g. different job each year over a 10 year period of time?
Work record poor - see "A." above. Ask person about reasons for changing jobs during interview. (judgmental)
9. Does a veteran need to be notified if not selected from the merit system certificate of eligible candidates if you hire or promote someone with the agency?
To avoid problems in this area, positions should be advertised internally prior to externally. This way, internals can be considered and possibly selected before any external candidates could be considered. However, often, to save time, agencies will advertise both internally and externally at the same time.
- If veterans and other external applicants are considered, whether interviewed or not, they should be notified (veteran - certified mail, non-veteran - regular mail).
10. If a veteran was scheduled for an interview and does not keep the appointment, and a month later calls and wants to be interviewed, does the agency have to interview the individual?
If the agency selection process has proceeded to the point of making a selection for the position and the veteran comes in thereafter having not completed the full application process, then there is no reason to extend the interview time. However, if the agency has not completed its selection process, and the agency would allow any applicant to complete the application process, including the interview, at a later time than originally scheduled, then the veteran must be treated in the same way.
11. What type of documentation is needed when...
A. A veteran is not interviewed or hired for a position?
N.D.C.C. § 37-19.1-04, subsection 3 provides that "the employing agency has the burden or proving that the veteran or the qualified veteran's spouse did not possess the qualifications required for the position." Consequently, it would be necessary to document why the particular veteran not interviewed or hired was not qualified for the position.
B. When a male veteran is hired over a female veteran?
Where more than one veteran applies for a position, if one of the veterans is disabled, that person should be hired first. If there are two or more veterans who are not disabled, the veteran with the best qualifications should be hired, irrespective of whether such persons are male or female. It is conceivable that if a less-qualified male veteran was hired over a more-qualified female veteran, that there may be a sex discrimination problem. Therefore, it should be documented that the male veteran was more qualified than the female veteran.
C. You pass over a veteran or disabled veteran and promote from within?
It is assumed that the veteran involved is not already employed by the agency. In such a case, it would again be necessary that there be documentation to the effect that the veteran was not qualified for the position because that is the issue at any hearing on the matter. For merit system agencies, phrased another way, there would have to be "justifiable cause" in writing as to why the veteran was not hired.
12. Why is a merit system agency not obligated to hire a qualified veteran if the veteran has a rating score less than other qualified applicants?
N.D.C.C. § 37-19.1-02 (4) prescribes a specific method for using the merit system process for veterans and disabled veterans. The Legislature has provided this system for use by all public agencies subject to a merit system.
13. Why is a non-merit system agency obligated to hire a qualified veteran even though a review of the other applicants shows one or more of them to be more qualified for the position?
N.D.C.C. § 37-19.1-02 (2), for non-merit system agencies, states that if the veteran is qualified for the position then the veteran is to be employed. This, too, is a legislative mandate for public agencies.
14. Does an agency need to interview or notify a veteran when...
A. Individual does not meet specific requirements of agency?
N.D.C.C. § 37-19.1-04, subsection 1 requires an agency to notify by certified mail that employment has been refused a veteran. That triggers the running of the 15-day period for filing a request for hearing. If it is apparent from a review of the application and related material that the individual does not possess the qualifications for the position, the person need not be interviewed.
B. Agency hires or promotes from within?
If the veteran is not an employee of the agency, it should notify the veteran by certified mail that employment has been refused. There would be an obligation to interview a veteran if such individual appeared to meet the qualifications for the position, or in the case of merit system agencies, scored above the interview score cutoff.
15. Can agencies pass over veterans who have a low oral interview score even though they may have had a higher score than other applicants on the certificate of eligible candidates register?
When N.D.C.C. § 37-19.1-02 (4) and 37-19.1-04 are considered together, the legislative intent on the certified mail notice requirement for merit system agencies is unclear. Options for certified mail notice include:
Sending certified mail notice only when section 37-19.1-02 (4) requires the agency to prepare written documentation of "justifiable cause" for not hiring a veteran.
Sending certified mail notice to every veteran on any merit system certificate when the veteran is not hired.
Sending certified mail notice to every veteran on a merit system certificate when the veteran is interviewed but not hired.
It is unknown exactly how an administrative hearing officer or a reviewing court will interpret the certified mail notice requirement in section 37-19.1-04 (1) for merit system agencies. The section requires the certified mail notice when the "applicant is not given the preference provided in sections 37-19.1-02 or 37-19.1-03."
Uncertainties in applying the certified mail requirement to merit system agencies occur when agencies make decisions on which persons on a certificate will be interviewed. This uncertainty is compounded when it is recognized that the statute does not specify the number of persons to be certified to an agency nor how the agency is to decide whom to interview.
Because of the wide range of options available for sending certified mail notice and because of the potential for the appearance of unfair treatment of some veteran applicants, a reasonable recommendation appears to be that agencies should not decide what persons on the certificate will be interviewed in a manner that appears to exclude a veteran or veterans on the list. After interviews have been conducted in a fair, thorough, and impartial manner, the agency should send certified mail notice to all veterans interviewed that were not hired. To be even more certain not to slight a veteran's interest in employment, an agency can interview all persons on the certificate and give certified mail notice to all veterans not hired, or give certified mail notice to all veterans not hired whether or not they were interviewed.
Using certified mail with return receipt for the agency's file has the benefit of adding certainty to the fact of giving notice and its timing. Therefore, it cuts out arguments. Furthermore, if the certified mail notice is specific in explaining to a veteran the reasons the veteran was not hired, it provides information that removes uncertainty in the veteran's mind on what has transpired and why. This knowledge could forestall a hearing request by the veteran just to find out what went on with respect to the agency's consideration of the veteran for employment.
1. What is the definition of a North Dakota resident?
Residency is not subject to one hard and fast definition for purposes of veterans' preference; it is not specifically defined in the statute. Residency requirements vary depending on the issue involved. As a general matter, in order to be resident there must be an intent to become a resident and an act in conformity therewith. This probably would require an examination of each particular case. Some of the relevant factors may include the following: does the person vote in North Dakota, have a domicile or homestead in North Dakota, have a place to go to when not working, and if so, when, pay taxes in North Dakota, have a North Dakota driver's license, etc.
2. Is residency determined at the time of entry into the service or at the time of application?
At the time of application. See N.D.C.C. § 37-19.1-02 (1).
3. Must an agency treat a veteran any differently than any other employee in a probationary period?
Generally, veterans have somewhat greater protection than normal probationary employees. If a veteran is discharged, has compensation reduced, or is otherwise subject to an action by the employing agency designed to cause the veteran to quit employment, the veteran may request a hearing. If a hearing is requested pursuant to this part of the law, the employing agency has the burden of proving that any action taken was not because of the exercise of the right to a veterans' preference.
4. Does an agency face any confidentiality problems with public announcements when hiring an individual with veterans' preference?
North Dakota state agency personnel records are open records just as any others, unless there is a specific statute making them confidential.
N.D.C.C. § 37-18-11 contains a lengthy list of confidential veterans records, which relate to the information in the hands of the North Dakota Department of Veterans Affairs. Subsection 13 of that section deals with "separation documents" and their being confidential and privileged. Apparently, DD214 is a "separation document." However, most agencies require the submission of that form by the veteran as evidence of veteran status. There appears to be no requirement under section 37-18-11 for agencies that receive the form from the veteran to keep it confidential in the same way as the Department of Veterans Affairs is required to do.
5. Does the open record law apply when hiring a veteran?
Generally, unless there is an express statutory exception to the open records law, it applies. The North Dakota Supreme Court has reaffirmed that position several times in cases. Most employment applications and material related thereto are subject to the open records law, unless some information contained therein would be specifically exempt under some other provision of state or federal law.
6. Does an agency face any problems informing other applicants or employees that an individual with veterans' preference was hired?
Merely stating that a person happens to be a veteran does not appear to be secret information.
7. Can an individual retiring from a military base in North Dakota use this law? Under what conditions?
If an individual retiring from a military base in North Dakota is a resident of North Dakota and meets the other conditions of being a "wartime veteran," such individual may take advantage of veterans' preference.
8. Is Central Personnel developing a point system/register for all state positions? If not, why?
No - only for agencies covered by Merit System. N.D.C.C. § 54-42-06 provides which agencies are covered.
9. Are work days or calendar days used in the appeal process?
N.D.C.C. § 37-19.1-04 requires certain actions to be undertaken within a certain number of days. Because the section does not specify work days, the provisions of N.D.C.C. § 1-02-15 apply, and the procedures are therefore to be undertaking using calendar days for the calculation.
10. Will Central Personnel include Desert Storm on applications?
It is included in "Armed Forces Expeditionary Medal or other Campaign Service Medal" as referred to in N.D.C.C. § 37-01-40.
11. Who is responsible for questions concerning Veterans' Preference Law?
Depending on the question, either Attorney General, Veterans' Affairs, or Central Personnel Division.
12. What can/cannot be used for the "test" or "exam" referred to in the laws documentation?
This question pertains to system agencies. The "test" or "examination" referred to in N.D.C.C. 37-19.1-04a & b is the written examination, training and experience rating, performance examination, or combination thereof as administered by the Central Personnel Division. Any test or oral interview given by an agency subsequent to these examinations cannot be used in relation to the veterans' preference statute.
13. What constitutes a "Merit System"?
A "merit system" is defined in N.D.C.C. 37-19.1-04 as an "established personnel system under which it maintains a register of persons eligible for employment and from which it certifies a prescribed number of names to that particular agency or governmental agency." Agencies covered by "Merit System" or the "established personnel system" are defined in N.D.C.C. 54-42-06.
14. Why are non-merit agencies forced to more strictly follow the law?
Both merit and non-merit agencies are required to follow the law. However, the law differs for merit versus non-merit agencies. Generally, there is an absolute employment preference for non-merit agencies. That means that if the veteran possess the qualifications, he or she must be hired. On the other hand, non-disabled veterans applying for positions in merit system agencies are only entitled to a 5 point increase in the rating score assigned by the Central Personnel Division. Disabled veterans applying to merit system are first entitled to the position, unless there is justifiable cause in writing for not doing so.
15. How does the veterans' preference law apply to non-merit system agencies?
The veterans preference law applies to non-merit system agencies pursuant to N.D.C.C. § 37-19.1-02 (2). That is, if the veteran is found to possess the qualifications required for the position, the agency is to employ the veteran.