Veterans’ Preference: An Overview

 

I.  GENERAL

Chapter 295, Florida Statutes, sets forth certain requirements for public employers to accord preferences, in appointment, retention, and promotion, to certain veterans and spouses of veterans who are Florida residents.  The relevant portions of the law apply to “the state and its political subdivisions”.  Public utilities, state universities, school districts, and special taxing districts are subject to the requirements of Chapter 295.

II.  CATEGORIES OF PROTECTED INDIVIDUALS

Section 295.07, Florida Statutes, extends veterans’ preference to:

·         A veteran with a service-connected disability who is eligible for or receiving compensation, disability retirement, or pension under public laws administered by the U.S. Department of Veterans Affairs and the Department of Defense.

·         The spouse of a veteran who cannot qualify for employment because of a total and permanent service-connected disability, or the spouse of a veteran missing in action, captured, or forcibly detained by a foreign power.

·         A veteran of any war who has served on active duty for one day or more during a wartime period, excluding active duty for training, and who was discharged under honorable conditions from the Armed Forces of the United States of America. A veteran who served honorably but who has not met the criteria for the award of a campaign or expeditionary medal for service in Operation Enduring Freedom or Operation Iraqi Freedom, qualifies for preference in appointment effective July 1, 2007.

 

The service dates are defined as follows:

·                     Operation Enduring Freedom – October 7, 2001 to date to be determined.

·                     Operation Iraqi Freedom – March 19, 2003 to date to be determined.

·                     Operation Iraqi Freedom has been renamed Operation New Dawn

 

·        The unremarried widow or widower of a veteran who died of a service-connected disability.

·        The Armed Forces Expeditionary Medal, as well as the Global War on Terrorism                Expeditionary Medal are qualifying for Veterans’ Preference.

III.  REQUIRED NOTICE BY EMPLOYERS

Public employers must give notice in all announcements and advertisements of vacancies, that preference in appointment will be given to eligible veterans and spouses, and application forms must inquire whether the applicant is claiming veterans’ preference, and whether the applicant has claimed such a preference.  Florida Administrative Code Rule 55A-7.009. The regulations provide that an applicant claiming preference is responsible for providing required documentation at the time of making application, but also state that the covered employer must inform applicants of the requirements for documentation. 55A-7.013, F.A.C.

 

 

IV.  PREFERENCE REQUIRED AT EACH STEP

·         An eligible veteran is entitled to preference at each stage of the hiring process.

·         Rule 55A-7.011(2) recognizes that the preference is not absolute. However, the employer is “required to document and justify” the decision. Rule 55A-7.011(3), F.A.C.

V.  EMPLOYMENT PREFERENCE WHEN A NUMERICALLY BASED SELECTION PROCESS IS USED

·         Employment preferences, where numerically based examinations are used as a device for selections, consists of adding ten points to the score of the first category of applicants (disabled veterans and spouses of disabled or missing veterans) and five points to the score of other preference-eligible applicants. 

·         The rules provide that where the requisite points (ten points to individuals in the first category, and five points to other applicants) have been adjusted to test scores, the names of all the preference-eligible applicants shall be placed on a register or employment list, beginning with those disabled veterans with disability ratings of 30 percent or more, and followed by all other preference-eligible applicants in the order of their augmented ratings.

·         The regulations state that “appointments to positions will be made from the appropriate register or employment list in the rank order of their augmented ratings.”  55A-7.010(4), F.A.C.

VI.  PREFERENCE WHEN A NUMERICALLY BASED SELECTION PROCESS IS NOT USED

Section 295.085(1), Florida Statutes, states that preference must be given to protected individuals provided such persons possess the minimum qualifications necessary to the discharge of the duties involved.  The rule defines “minimum qualifications” to mean a “specification” of the kinds of experience, training, education and/or licensure or certification that provides “appropriate job-related evidence that an applicant possesses the minimum required knowledge, skills, and abilities necessary to the discharge of the duties involved.” 55A-7.003(8), F.A.C.

VII.  OTHER PROVISIONS REGARDING PREFERENCE

·         Veterans’ preference in perpetuity: A person eligible for veterans’ preference in appointment (defined by s. 295.07, FS) may use veterans’ preference each time when seeking new employment with different state agency or political subdivision of this state. Internal transfers and promotions are not covered by this section of law.

·         Preference in layoffs:  Where a layoff is necessitated in a covered position, similar preferences must be given to the covered employee in the retention process. 295.07, Florida Statutes.

·         Preference in reinstatement or reemployment:  When an employee in a covered position leaves employment for the purpose of serving in the armed forces, he or she is entitled to reinstatement or reemployment upon release or discharge from active military service. 295.09. Florida Statutes.

·         Promotion preference:  Promotion preference applies only to a veteran’s first promotion after reinstatement or reemployment, without exception. Chapter 55A-7.0111, F.A.C.

 

 

VIII.  EXEMPT POSITIONS

Chapter 295, Florida Statutes, provides for a preference in employment for certain classes of covered positions.  However, Ch. 98-33, s. 2, Laws of Fla., exempts from the law positions that are exempt from the state career service system under Section 110.205 (2), Florida Statutes. Chapter 2001-273, Laws of Florida, eliminates the exemption for some previously exempted positions.  City managers, county managers, and management and policymaking positions of political subdivisions of the state are now eligible for preference in appointment and retention as provided in s. 295.07(1).

IX.  ENFORCEMENT

If an applicant claiming veterans’ preference for a vacant position is not selected, he/she may file a complaint with the:

Florida Department of Veterans' Affairs

Division of Benefits and Assistance - Veterans' Preference

Post Office Box 31003

St. Petersburg, FL 33731

 

While the DVA stands ready to assist preference-eligible applicants who are seeking public employment opportunities, Chapter 55A-7, Florida Administrative Code (FAC), requires the department to accept only those complaints for positions that have been filled and the petition filed in a timely manner.

 

Any applicant seeking veterans’ preference in employment in the state of Florida who is not selected for the job and is so notified must file the complaint with the DVA against the agency or political subdivision within twenty-one calendar days from the date the hiring decision is received or within three months of the date the application is filed with the employer if no notice is given. Where a notice of non-selection is not provided, it is the responsibility of the applicant to maintain contact with the employer to determine the status of the vacancy announcement. In order for the department to act on a complaint, the position must be filled by another applicant.

 

Submit a statement of complaint with original signature verifying the method of notifying the employer that you were eligible for veteran preference and any notifications and information on when you had interviews and your attachments. This information must be documented for each petition you wish to pursue:

• DD Form 214
• Position announcement
• Job application submitted for vacant position
• Notification of non-selection
• Verification that the position has been filled or a statement when you called to determine you were not selected and the position has been filled.

 

Upon receipt of the information requested the department will review your claim to determine if we have jurisdiction to proceed in this matter. FDVA will then initiate an investigation and request proper documentation from the employer.

 

 

 

The enforcement mechanism established by the regulations provide for an initial investigation by the Florida Department of Veterans’ Affairs, followed by an evidentiary proceeding before the Public Employees Relations Commission (PERC) if the matter cannot be earlier resolved. Chapter 55A-7.016, F.A.C. and Chapter 28-101 Uniform Rules of Administrative Procedures (PERC).

 

 

Technical Bulletin 2: Campaigns and Expeditions of the Armed Forces Since WWII Which Qualify for Veterans Preference

(Click the link to view info)

 

Technical Bulletin 3: Uniformed Services Reemployment Rights Act of 1994

(Click the link to view info)

 

For additional information concerning veterans' preference, please contact:

The Florida Department of Veterans' Affairs:

 

By phone at: (727) 319-7462, Facsimile (727) 319-7780

By email: cosentinoj@fdva.state.fl.us

 

X.  PENALTIES

In the event that the veteran prevails on his/her veterans’ preference complaint before the Public Employees Relations Commission, the Commission may issue an order to compensate the veteran for the loss of any wages and reasonable attorneys fees and costs the veteran incurred by having to appeal to the Commission. Attorney fees and costs are capped at $10,000.00 per case.