Colorado enacts law enabling private employers to prefer certain candidates on veteran-related grounds

Colorado has enacted CRS 8-1-153 to enable private employers to prefer certain candidates for hiring on the basis of their veteran-related status. Eligible candidates are:

  • A totally disabled veteran who is within 10 years of discharge
  • A less than totally disabled veteran, a member of the reserves or national guard, who is within 5 years after discharge
  • The spouse of a service member “killed in the line of duty” if within 5 years after that death

Unfortunately the act was badly written and is virtually certain to trigger litigation. For example, the statute only allows the employer to prefer such individuals for hiring if the company does so “uniformly to all hiring decisions.” Does that really mean “to all hiring decisions”? Shouldn’t it have been “to all hiring decisions for such position”? One can imagine a company is likely to have such a policy for some positions, but for other positions (such as C-level officers) may choose not to have such a policy.

More worrying, a company may only give such a preference if the veteran-related candidate is “at least as qualified as the other applicants.” Note that does not say, but hopefully courts will rule that it was meant to say “at as qualified in the employer’s sole discretion as the other applicants.” Even then it makes little sense why the legislature chose to impose that restriction. Why shouldn’t an employer choose, for example, to hire a veteran even if she is less qualified than another candidate simply because the company wishes to support her service?

Also, the company may do prefer such individuals only if the company, first, (1) publishes a written policy explaining its preference and (2) does so at least 14 days in advance. Why the statute was written with such technical requirements is hard to understand.

And, the very phrase “killed in the line of duty,” though dramatic, invites litigation. One can assume it was intended to include anyone who gave their life in combat. Likewise, those who have passed in training exercises are probably included. What about those who passed away as a result of injuries or illness? One doesn’t have to think very long to realize there is simply no end to the lawsuits that will be needed to litigate what that phrase means. This is a terrible disservice to service members: Why did the legislature wish to grant this status only to those who fall “in the line of duty” when all those who have served, by virtue of their very service, made the commitment to stand their lives for our freedoms? Why shouldn’t this law have granted such rights to the relatives of anyone who passed away during the term of their service? Or if the legislature thought that too generous (!), why not at most limit it to those whose passing arose out of or was related to injuries, illnesses or other experiences that occurred during their service?

This well-intentioned but poorly drafted law is an unfortunate invitation for litigation. Indeed it is so poorly drafted one has to wonder if, simply by passing it, our legislature hasn’t now actually reduced the lawful rights Colorado employers previously had to prefer veterans. Employers should consult with legal counsel before attempting to implement a policy under this new law.

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