TERMINATIONS UNDER VETERANS PREFERENCE LAw

BY Eric Updegraff, Brent Hinders, Hugh Cain | Hopkins & Huebner, P.C. | Des moines office

Iowa law includes some very specific procedural due process rights to veterans. A public employer must be aware of those rights before terminating an employee.

Who is a Veteran?

The term “veteran” is not just members of the military that have served overseas.  Under Iowa law, a “veteran” is anyone who has served in the US armed forces since August 2, 1990 as well as earlier wars or conflicts as long as they were honorably discharged.  In some circumstances, national guard and military reserve members are also covered.

Each public employer must include in its application process an opportunity for the employee to claim he or she is a veteran subject to the Veterans Preference law. It is good policy to ask for a DD214 Certificate of Release or Discharge from Active Duty form, which is issued by the U.S. Department of Defense.

Termination Safeguards

The removal protection for veterans in Iowa allows for termination only for “incompetency” or “misconduct” after a hearing upon due notice upon stated charges, as seen in Code. § 35C.6.

A person who habitually fails to perform his work with a degree of skill or accuracy usually displayed by other persons employed in such work is “incompetent” under the law. The term misconduct has not been defined in Iowa law. However, the Iowa Supreme Court held that a police officer who violated department policy by effectuating an arrest at a race track while under the influence of alcohol was guilty of misconduct.

The failure to give a veterans preference hearing gives rise to a cause of action under 42 U.S.C. § 1983. This means a successful plaintiff can be awarded damages and attorney fees.

The Termination Process

The first step is to prepare and review evidence about the employee’s performance in light of the standards of misconduct or incompetency. It is important to remember that poor job performance can rise to incompetency, but not all poor performance is necessarily “incompetence.”  Therefore, the employer needs to carefully evaluate whether the poor performance is sufficient to rise to that level. An employer may struggle with the legal concept of incompetency if it is accustomed to terminating employees’ employment at will. Veterans Preference law means that the employee is not “at-will.”  A proper investigation of the conduct is necessary before making a decision to terminate the employee’s employment.

The second step is to provide the employee with “due notice upon stated charges.”  The best method of doing so is in a written document that includes the specified charges. At its core, due process entitles a person to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. The only way to provide a meaningful opportunity to be heard is to provide adequate notice of the subject matter prior to the hearing. The written document can take the form of a letter or even a formal filing with the appointing body. It should include:  (1) a list of the charges with sufficient detail; (2) a hearing date for the employee; and (3) further details allowing the employee to attend the hearing.

The third step is to determine the appropriate appointing body to conduct the hearing. The determination of the appropriate appointing official usually depends upon the law authorizing the hiring of the employee. Some employees are hired by elected officials. Some employees are hired by employees of elected officials. Some are hired by boards or commissions.

The fourth step is to conduct the hearing. The burden of proof is upon the employer. Evidence will need to be presented sufficient to persuade the appointing body that incompetence or misconduct exists by a preponderance of the evidence. The use of a court reporter at the hearing is the best practice because the transcript can then be used in any subsequent writ of certiorari action.

The fifth step is for the appointing body to issue a written determination with a date. This document need not be elaborate, but it should be properly delivered to the employee. Under Iowa law Veterans Preference, violations entitle an employee to file a writ of certiorari within 30 days of the final decision. The issuance of a final decision is important for triggering that statute of limitations. Many employees are unaware of the 30 day limitation and will fail to file a timely claim.

Exceptions

The statute and case law creates several exceptions.  The Iowa Veterans Preference law also carves out certain exceptions such as private secretaries, deputies, and persons in a confidential relationship. Also, in an unpublished Iowa Court of Appeals decision, the Court ruled an employee may waive their Veterans Preference Rights by signing a written contract providing for employment at-will.

There is no requirement for a hearing if the position is either downsized or eliminated.

About Hopkins & Huebner, P.C. Our employment law attorneys have over 40 years of combined experience in employers' rights and represent employers in matters that arise in the workplace, including work polices and guidelines, the application and hiring process, employment contracts and employee handbooks. Our labor and employment attorneys possess expertise in wage and hour standards, fair labor practices, wrongful termination, employment discrimination, drug testing, OSHA compliance and termination.

Hopkins & Huebner, P.C. is a full-service law firm with offices in Adel, Des Moines, and Davenport. We have attorneys that are licensed to practice in both Iowa and Illinois. Office hours are 8:00 a.m. to 4:30 p.m. Monday through Friday. Call us today at (515) 244-0111.