North Dakota Veterans’ Employment Preference

North Dakota does not give veterans points and leave the rest to the employer. Chapter 37-19.1 gives an absolute preference in public hiring, and it is the strongest provision of its kind in this catalog. Outside a competitive personnel system, section 37-19.1-02(2) requires the employing authority to investigate the veteran's qualifications and, if the veteran possesses the qualifications required and is physically and mentally able to do the job, to employ the veteran. A disabled veteran comes first, then a veteran, and in each case the statute says the person "must be so employed" in the absence of justifiable cause documented in writing. Justifiable cause is defined in 37-19.1-01(6) and the definition is narrow: it "must be something specific to that individual which renders the individual unsuitable for the position". A general preference for another candidate is not justifiable cause. Inside a competitive personnel system the scheme is points: five for a veteran and ten for a disabled veteran on a hundred-point scale, or five and ten percent of whatever scale is used, added to the examination grade. The employing authority then designates a number of top-ranked candidates to consider and fills the position from that group. Who counts. A veteran under 37-19.1-01(9) is either a veteran as defined in 37-01-40(1), or a person "serving in or has been honorably discharged from the national guard or a reserve unit". A currently serving Guard member has the preference. A disabled veteran is a veteran found entitled to a service-connected disability rating by VA, at any percentage, so a ten percent rating carries the ten points and the first position in the non-competitive order. The documents are prescribed. A DD-214, or a certification from the applicant's unit command that they are expected to be discharged under other than dishonorable conditions not later than 120 days after the certification. A disabled veteran adds a VA letter less than one year old. A spouse adds the marriage certificate and, as applicable, the veteran's death certificate or the VA letter. The one-year age limit on the VA letter catches people out. Spouses. Section 37-19.1-03 gives the preference to the unremarried spouse of a veteran who died in service or later died of a service-connected cause, and to the spouse of a disabled veteran who has a one hundred percent service-connected disability, or an extra-schedular rating to include individual unemployability resulting in payment at the one hundred percent rate, where the veteran cannot exercise the preference themselves because of the disability. What is excluded, and this is where most disappointment comes from. The preference does not apply to an administrative head of a department required by law, or to the chief deputy or private secretary of an elected or appointed official, or to temporary committees and appointments by the governor or the legislative assembly. If an exempt position is advertised, the advertisement must say that veterans' preference does not apply. And section 37-19.1-02(5) removes the preference for internal moves: a state agency employee is not eligible when applying for a different job within the same state agency or any other state agency, and a political subdivision employee is not eligible within the same political subdivision. Note the asymmetry. A state employee loses the preference across all of state government; a city employee loses it only within that city and keeps it applying to the county next door. The appeal is the part that gives the preference teeth, and it runs on a fifteen-day clock. The employer's notice of nonselection must be sent by certified mail or a designated electronic communication and must state the reasons for nonselection, tell the applicant of the right to an appeal hearing, state the fifteen-calendar-day deadline, give the Commissioner of Veterans' Affairs' mailing and email address, and tell the applicant they must copy the employer. The applicant then has fifteen calendar days to request a hearing from the Commissioner. A hearing officer from the Office of Administrative Hearings hears it within thirty days, the employing agency pays for the hearing officer, and at the hearing the agency carries the burden of proving the applicant did not possess the qualifications. If the hearing officer finds for the applicant, the applicant "is entitled to immediate employment in the position for which application was originally made, or an equivalent position, together with backpay and benefits", less amounts earnable through due diligence. There is a one-year anti-retaliation rule. A person who exercised the preference and is then discharged, has compensation reduced, or is subjected to action designed to make them resign, within one year, may request a hearing on the same fifteen-day clock, and there the agency must prove the action was not taken because of the preference.