55A-7.016. Enforcement of Preference

(1) Employers are required to document the basis for hiring decisions by maintaining a file that includes documentation of advertised positions, dates advertised, waiver of educational requirements advertised, applications received, candidates interviewed, evaluation criteria and methods used such as numerical scoring or other means of evaluating applicants, documentation of manager, team or committee process and interview notes, waiver of educational requirements requested or granted, employment offer and acceptance letters, employment pre-screening results, agreed upon start date for person hired, and any other relevant information for the appropriate records retention period.

(2) When a preference-eligible applicant receives notice of a hiring decision from an employer, and believes that he or she was not afforded employment preference in accordance with applicable Florida law and regulation, he or she may file a written complaint requesting an investigation to the Florida Department of Veterans’ Affairs, Veterans’ Preference Coordinator, 11351 Ulmerton Road, Suite 311, Largo, FL 33778.

(3) In the event of any investigation conducted pursuant to Section 295.11, F.S., in response to the individual preference-eligible applicant’s or employee’s complaint, the Department of Veterans’ Affairs shall require the agency or political subdivision to demonstrate how its employment selection or retention process gave due consideration to Veterans’ Preference and the particular preference-eligible person at each step of the process.

(4) Such complaint shall be filed within 60 calendar days from the date that the notice is received by the preference-eligible applicant pursuant to Sections 120.569 and 120.57, F.S. The time periods specified in this rule may extend the time periods set forth in Chapter 120, F.S., in order to benefit preference-eligible persons and to accommodate the challenges of obtaining federal government records. The day of receipt will be presumed to be the date on the employer’s letter plus 5 calendar days for mail unless the applicant provides proof that the applicant received the notice earlier.

(5) Prior to filing a complaint, it is the responsibility of the preference-eligible applicant to contact the designated Human Resources or other contact person at least one time after 45 days have passed from the final date for submitting an application or the interview date, whichever is later in time, if the applicant has not received notice of a hiring decision.

(6) Within 10 calendar days of receiving the complaint, the Department shall send a written acknowledgment of receipt to the complainant and the employer, advising that the complaint will be investigated and a copy of the findings furnished to the complainant thereafter.

(7) Within 20 calendar days of receiving the complaint, the Department shall designate a Department representative who will be responsible for conducting the investigation and requesting information from the employer within 10 days of assignment.

(8) Within 30 calendar days of the Department initiating a request for documentation, the employer or hiring authority shall furnish the following information:

(a) The documentation regarding the position and any materials concerning the hiring decision including advertisement of the position, applications of qualified applicants who were considered for the position, interview notes, offers of employment, and acceptance letters, any other relevant documentation.

(b) A plain statement justifying the hiring decision.

(c) If applicable, a statement as to whether the essential job functions can or cannot be performed by the preference-eligible applicant. If a statement is provided advising the essential job functions cannot be performed by the preference-eligible applicant, then the hiring entity must also provide information as to the type of employment accommodation which was considered and/or discussed with the applicant.

(9) After investigation and review of the complaint and documentation provided by the complainant and employer, the Department may issue its opinion by certified mail, return receipt requested, and shall provide copies to the complainant and to the employer. The opinion shall include the following:

(a) The name of the individual supplying the information from the employer.

(b) The nature of the information supplied.

(c) The rationale the agency used for not selecting the veteran.

(d) Whether the position was subject to employment preference under Chapter 295, F.S.

(e) The nature of the preference claimed.

(f) The criteria applied for the case such as a description of numerical or non-numerical evaluation criteria.

(g) A statement as to whether preference was properly afforded to the applicant.

(h) An opinion, based on information considered during the investigation, as to whether the complaint has merit or lacks merit.

(10) If the complaint is found to lack merit, the Department shall also notify the complainant, advising that the complainant may petition the Public Employees Relations Commission for a hearing, within 20 calendar days from the date of receipt of the findings, and the address to which the petition should be sent.

(11) If the complaint is found to have merit, at the time of issuing its opinion to the complainant and employer, the Department shall solicit from the employer a statement as to the action the employer proposes to take to resolve the complaint. The employer shall send a written statement of the proposed action to the complainant by certified mail, return receipt requested, within 30 calendar days of the date the Department’s findings are issued, and the employer shall furnish a copy to the Department. The complainant, if not satisfied with the proposed action, shall notify the Department in writing within 15 calendar days. The Department shall notify the complainant within 10 calendar days of receipt of the complainant’s notice, by certified mail, return receipt requested, of the right to petition the Public Employees Relations Commission for a hearing within 45 calendar days from the receipt of such letter, and the address to which the petition shall be sent.

(12) If the complaint is found to have merit and the employer fails to send a written statement of the proposed action to the complainant within 30 calendar days of the date the Department’s findings are issued to the complainant and employer, the complainant shall, within 15 calendar days, advise the Department of the employer’s failure to effect a resolution satisfactory to the complainant. The Department shall notify the complainant within 10 calendar days of receipt of the complainant’s notice, by certified mail, return receipt requested, of the right to petition the Public Employees Relations Commission for a hearing within 45 calendar days from receipt of such letter, and the address to which the petition should be sent.

(13) The administrative determination by the Public Employees Relations Commission shall be conducted in accordance with Sections 447.201-447.609, F.S. Upon obtaining jurisdiction, the Public Employees Relations Commission may hear and determine penalties for violation of preference statutes and rules, and order remedies pursuant to Section 295.14, F.S., including but not limited to compensation for lost wages, reasonable attorney fees and costs.

(14) Under Section 447.207(10), F.S., the decision concerning a Veterans’ Preference complaint made by the Public Employees Relations Commission is final agency action and pursuant to Section 447.207(11), F.S., may be reviewed by the district courts of appeal under Section 447.504, F.S., in accordance with the requirements of Section 120.68, F.S.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.11, 295.14 FS. History–New 3-30-88, Formerly 22VP-1.016, Amended 2-12-90, 7-12-93, 12-27-98, 6-11-08, 6-27-16, 8-17-22.