To remove rules that are redundant of statute. To update contact information. To conform rules to current Florida Statutes. To amend rules concerning Announcements, Applications, Due Process and Documentation of Preference Claim.

DEPARTMENT OF VETERANS' AFFAIRS
Division of Veterans’ Benefits and Assistance

RULE NO: RULE TITLE
55A-7.002: Policy
55A-7.003: Definitions
55A-7.004: Covered Employers
55A-7.005: Covered Positions
55A-7.008: Persons Eligible for Appointment and Retention Preference
55A-7.009: Announcements and Applications
55A-7.010: Employment Preference When Using a Numerically Based Selection Process
55A-7.011: Employment Preference When Numerically Based Selection Process Is Not Used
55A-7.0111: Reinstatement or Reemployment; Promotion Preference
55A-7.012: Procedures for Commencement and Expiration of Preference
55A-7.013: Documentation of Preference Claim
55A-7.014: Notice and Documentation by Employer
55A-7.015: Preference in Retention
55A-7.016: Enforcement of Preference
PURPOSE AND EFFECT: To remove rules that are redundant of statute. To update contact information. To conform rules to current Florida Statutes. To amend rules concerning Announcements, Applications, Due Process and Documentation of Preference Claim.
SUMMARY: Veterans’ Preference in Appointment and Retention in Employment.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 295.07(2), 295.085(2) FS.
LAW IMPLEMENTED: 1.01(14), 295.065, 295.07(1), (2)(c), (4), 295.08, 295.09, 295.101, 295.11 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Ron Lynn, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

55A-7.002 Statement of Legislative Intent  Policy.

It is the intent of the Legislature to provide preference and priority for veterans in the hiring practices of the state and its political subdivisions.  This includes preference and priority in appointment, retention, reinstatement, reemployment and promotion. It is the policy of the State of Florida to give preference to eligible veterans and spouses of veterans in appointment and retention in positions of public employment.

Specific Authority 295.07(2)  295.085(2) FS. Law Implemented 295.065 295.085(2) FS. History–New 3-30-88, Formerly 22VP-1.002, Amended________.

 

55A-7.003 Definitions.

As used in this chapter:

(1) “Appointment” means employment of a preference-eligible applicant into a vacant position with the state or political subdivisions of the state after the effective date of these rules.

(2) “Armed Forces” or “armed services” means the Army, Navy, Air Force, Marine Corps and Coast Guard of the United States.

(3) “Augmented Rating” means the final numerical score received by a preference-eligible applicant after it is increased by veterans’ preference points in accordance with Rule 55A-7.010, F.A.C., of this chapter.

(4) “Complaint Lacking Merit” means a complaint lacking a basis in law and/or fact, and which is so insufficient in that there is little if any prospect that it can be successfully resolved in favor of the veteran.

(5) “Department” means the Florida Department of Veterans’ Affairs.

(6) “Department of Defense” means the United States Department of Defense.

(7) “Examination” means any selection device which results in a numerical score and by which applicants are determined eligible for consideration for a specific position. These devices will include the following:

(a) A written or proficiency assessment of an applicant’s knowledge, skills, and abilities,

(b) An assessment of the essential knowledge, skills, abilities, and other job-related requirements possessed by an applicant, or

(c) An evaluation of the applicant’s training and experience.

(8) “Minimum Qualifications” means a specification of the kinds of experience, training, education, and licensure or certification (if applicable) 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.

(9) “Numerically Based Selection Process” means an examination resulting in a numerical score which is the sole criterion for making an employment selection decision from a pool of candidates who meet minimum qualifications.

(10) “Vacant Position” means a position which the covered employer has announced as being open for recruitment and available to all applicants. A position that is announced as being open to current employees only, to be filled by the reassignment, promotion or demotion of an employee is not a vacant position for the purpose of this chapter.

(11) “DVA” means the United States Department of Veterans’ Affairs.

(12) “Veteran” or “wartime veteran” is as defined in Section 1.01(14), F.S. To be eligible for veterans’ preference as a wartime veteran, an applicant must have served at least one day during a wartime period as delineated in Section 1.01(14), F.S.

(a) The veteran must have served at least 1 day during a wartime period to be eligible for veterans’ preference.  Active duty for training shall not be allowed for eligibility.

(b) A veteran who has served in a campaign or expedition for which a qualifying campaign badge or expeditionary medal has been authorized, (including any armed forces expeditionary medal or the global war on terrorism medal) is eligible for preference pursuant to Section 295.07, F.S.

Specific Authority 295.07(2) FS. Law Implemented 1.01(14), 295.07(1), 295.07(2)(c) FS. History–New 3-30-88, Formerly 22VP-1.003, Amended 2-12-90, 6-21-92, 7-12-93, 12-27-98, 7-26-00,________.

 

55A-7.004 Covered Employers.

This chapter applies to employment by the state, including the State University System, the State Community College System, the Florida School for the Deaf and Blind, and the state’s political subdivisions as defined in Section 1.01(8), F.S., including The term “political subdivisions” means counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in the state.

Specific Authority 295.07(2) 295.085(2) FS. Law Implemented 295.07(1), 295.07(4) 295.07(2) FS. History–New 3-30-88, Formerly 22VP-1.004, Amended 2-12-90,________.

 

55A-7.005 Covered Positions.

(1) Positions of employment offered by the State as designated in Rule 55A-7.004, F.A.C., and listed below are covered by the provisions of this Chapter.

(a)  All positions under the state Career Service System.

(b) All positions under the State University System’s University Support Personnel System.

(c) All Career Service System positions under the State Community College System. that are identified as Teaching Assistant/Associate, Specialist/Support staff, Clerical/ Secretarial, Technical/Paraprofessional, Skilled Crafts or Service/Maintenance.

(d) All Career Service System positions under the Florida School for the Deaf and Blind that are under the Career Service System.

(2) Positions of employment offered by a political subdivision of the state are covered by the provisions of this Chapter except those that are filled by officers elected by popular vote or persons appointed to fill vacancies in such offices and the personal secretary of each such officer, members of boards and commissions, persons employed on a temporary basis without benefits, city managers and county managers, heads of departments, management positions, policymaking positions as determined by each political subdivision subject to review by the Public Employees Relations Commission, positions which require licensure as a physician, licensure as an osteopathic physician, licensure as a chiropractic physician, and positions which require that the employee be a member of The Florida Bar which are exempt.

Specific Authority 295.07(2) 295.085(2) FS. Law Implemented 295.07(1), 295.07(4) 295.07(2), 295.11(4) FS. History–New 3-30-88, Formerly 22VP-1.005, Amended 2-12-90,________.

 

55A-7.008 Persons Eligible for Appointment and Retention Preference.

The following persons shall be eligible to receive preference in appointment and retention in employment:

(1) Disabled veterans who have served on active duty in any branch of the Armed Forces and who:

(a) Have a presently existing service-connected disability which is compensable under public laws administered by the DVA; or

(b) Are receiving compensation, disability retirement benefits, or pension by reason of public laws administered by the DVA and the Department of Defense.

(2) The spouse of any person:

(a) Who has a total and permanent service-connected disability and who, because of this disability, cannot qualify for employment; or

(b) Who is missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.

(3) A wartime veteran as defined in subsection 55A-7.003(12)(11), F.A.C., of this chapter.

(4) The unremarried widow or widower of a veteran who died of a service-connected disability

(5) A veteran who has served in a campaign or expedition for which a qualifying campaign badge or expeditionary medal has been authorized (including any armed forces expeditionary medal or the global war on terrorism medal).

Specific Authority 295.085(2) FS. Law Implemented 295.07(1) FS. History–New 3-30-88, Formerly 22VP-1.008, Amended 2-12-90, 6-21-92,________.

 

55A-7.009 Announcements, and Applications, and Due Process.

(1) The employer shall give notice in all announcements and advertisements of vacancies in covered positions that preference in initial appointment will be given to eligible veterans and spouses of veterans.

(2) The covered employer shall inform preference-eligible applicants at the time of application of the right to an investigation by the Department if a non-preference eligible applicant is appointed to a position, the time limits for requesting such investigation, and the address to which the request for an investigation should be sent. Veterans’ preference applies only for the preferred applicant’s initial employment by a covered employer. Veterans’ preference is not given for an employee seeking promotion except as provided at Rule 55A-7.0111, F.A.C., below.

(3) Forms provided for application for covered employment shall ask whether the applicant is claiming veterans’ preference., and whether the applicant entered into covered employment by a covered employer before or after the present application.

(4) Each covered employer shall ensure that records are maintained which document the manner of the selection and the propriety of the selection process and decision in accordance with federal and state laws.

Specific Authority 295.07(2) 295.085(2) FS. Law Implemented 295.065, 295.11 295.101, 295.15 FS. History–New 3-30-88, Formerly 22VP-1.009, Amended 2-12-90, 7-12-93,________.

 

55A-7.010 Employment Preference When Using a Numerically Based Selection Process.

(1) In all covered positions for which an examination, as defined in subsection 55A-7.003(7), F.A.C., of this chapter, is used to determine the qualifications for entrance into employment with a covered employer, the score of a preference-eligible applicant who obtains a qualifying score on the examination shall be augmented as follows:

(a) Where the highest possible examination score is 100, ten points shall be added to the scores of applicants eligible under subsections 55A-7.008(1) and (2), F.A.C.;

(b) Five points shall be added to the scores of applicants eligible under subsections 55A-7.008(3), and (4) and (5), F.A.C.;

(b)(c) Where the highest possible examination score is other than 100, then 10 percent or 5 percent shall be added to the applicant’s score under paragraph (a) or (b) above, as appropriate to give the preference-eligible applicant the equivalent of 10 points or 5 points on a scale of 100.

(2) The names of persons eligible to receive a 10-point preference whose service-connected disabilities have been rated by the DVA or the Department of Defense to be 30 percent or more shall be placed at the top of the appropriate register or employment list in the order of their augmented ratings. This subsection shall not apply to classes of positions with Federal Government designations in the U. S. Department of Labor, Employment and Training Administration’s Dictionary of Occupational Titles of professional or technician.

(3) The names of all other preference-eligible applicants shall be placed on the appropriate register or employment list in the order of their augmented ratings.

(4) Appointments to positions are required by the local merit system rules to be made from the appropriate register or employment list in the rank order of their augmented ratings.

Specific Authority 295.07(2) FS. Law Implemented 295.08 FS. History–New 3-30-88, Formerly 22VP-1.010, Amended 2-12-90, 7-12-93, 12-27-98,________.

 

55A-7.011 Employment Preference When Numerically Based Selection Process is Not Used.

(1) In all covered positions for which an examination, as defined in subsection 55A-7.003(7), F.A.C., is not used to determine the qualifications for employment, preference in appointment, employment and retention shall be given first to those persons included under subsections 55A-7.008(1) and (2), F.A.C., and second to those persons included under subsections 55A-7.008(3), and (4) and (5), F.A.C., provided such persons possess the minimum qualifications necessary to the discharge of the duties involved.

(2) Preference in appointment and employment requires that a preferred applicant be given special consideration at each step of the employment selection process but does not require the employment of a preferred applicant over a nonpreferred applicant who is the most qualified applicant for the position. Granting of an interview is one example of the type of special consideration which may be given to a preferred applicant. If, at any stage of the hiring process, a preference-eligible veteran meets minimum qualifications for an open position, then he or she will advance to the next step in the public employer’s selection process. If, at any step in the selection process, a determination is made that the veteran is not qualified to advance to a subsequent step in the selection process, such determination will receive a review at a higher level of management having authority to overturn the initial determination, to ensure whether the determination was correct. In the event of any investigation conducted pursuant to Section 295.11, F.S., the Department of Veterans’ Affairs shall require that the agency or political subdivision which is party to such investigation demonstrate how its policies were effectuated at each step of the employment selection process, including why an interview was not provided, in regard to the individual preference-eligible applicant or employee who requested the investigation.

(3) The employer is required to document and justify the decision to hire a nonpreferred applicant over the preferred applicant, subject to the review of that decision by the Department of Veterans’ Affairs as provided by at Rule 55A-7.016, F.A.C., of this Chapter, and ultimately by the Public Employees Relations Commission.

Specific Authority 295.07(2) FS. Law Implemented 295.085, 295.11(4) FS. History–New 3-30-88, Formerly 22VP-1.011, Amended 2-12-90, 7-12-93, 12-27-98, 12-28-04,________.

 

55A-7.0111 Reinstatement or Reemployment; Promotion Preference.

(1) When an employee in a covered position leaves employment of the state or its political subdivisions for the purpose of serving in the Armed Forces of the United States and is separated therefrom with an honorable discharge, the state or its political subdivision shall reinstate or reemploy such person under the following conditions:

(a) Reinstatement or reemployment is made to the same or to an equivalent position.

(b) Reinstatement or reemployment is made within one year of the date of separation from the military service, or, in the case of extended active duty, within one year of the date of discharge or separation subsequent to the extension.

(2) Persons reinstated or reemployed under this section shall be awarded preference in promotion, and shall be promoted ahead of all other employees who are as well or less qualified for the position. When an examination, as defined in Rule 55A-7.003, F.A.C., is utilized, such persons shall be eligible for preference points and ranking on the register as provided by Rule 55A-7.010, F.A.C., of this chapter. Eligibility for preference in promotion shall apply only to a veteran’s first promotion after reinstatement or reemployment, without exception.

(3) If the reinstated or reemployed person is not promoted, the person retains promotion preference eligibility until the first promotion following reemployment is satisfied.

(4) Where the reinstated or reemployed person is not promoted and the register is vacated to establish a new register for the next promotion, such person shall retain eligibility for preference points and ranking on the new register as provided by Rule 55A-7.010, F.A.C.

Specific Authority 295.07(2) 295.085(2) FS. Law Implemented 295.08, 295.09 FS. History–New 3-30-88, Formerly 22VP-1.0111, Amended________.

 

55A-7.012 Procedures for Commencement and Expiration of Preference.

(1) A veterans’ preference claim shall be indicated by the applicant on the employment application form which shall be placed into the employee’s personnel file upon appointment to a position to document utilization of veterans’ preference.

(2) The procedures for granting veterans’ preference pursuant to this chapter shall commence on the date the rule becomes effective.

(3) A veteran’s employment preference shall be deemed to have expired after an eligible person pursuant to Rule 55A-7.008, F.A.C., of this chapter has applied and been employed by the state or any agency of a political subdivision of the state.

Specific Authority 295.07(2) FS. Law Implemented 295.101 FS. History–New 3-30-88, Formerly 22VP-1.012, Amended 12-27-98, Repealed________.

 

55A-7.013 Documentation of Preference Claim.

(1) An applicant for a covered position who believes he or she is entitled to veterans’ preference in employment shall indicate such preference on the application form.

(2) The applicant claiming preference is responsible for providing required documentation at the time of making an application for a vacant position, or prior to the closing date of the vacancy announcement.

(3) The covered employer shall inform applicants of requirements for documentation of eligibility for preference.

(4) The covered employer shall determine whether an applicant is eligible for employee has utilized his or her veterans’ preference.

(5)  The covered employer shall document the employee’s election of veterans’ preference.

(6)(5) Intentional misrepresentation of the claim for preference shall disqualify the applicant from claiming veterans’ preference, and if employed, shall be subject to disciplinary action by the covered employer.

(7)(6) Documentation shall include the following:

(a) Veterans, disabled veterans, and spouses of disabled veterans shall furnish a Department of Defense document, commonly known as form DD-214 or military discharge papers, or equivalent certification from the DVA, listing military status, dates of service and discharge type.

(b) Disabled veterans shall also furnish a document from the Department of Defense, the DVA, or the Department certifying that the veteran has a service-connected disability.

(c) Spouses of disabled veterans shall also furnish either a certification from the Department of Defense, or the DVA that the veteran is totally and permanently disabled or an identification card issued by the Department; spouses shall also furnish evidence of marriage to the veteran and a statement that the spouse is still married to the veteran at the time of the application for employment; the spouse shall also submit proof that the disabled veteran cannot qualify for employment because of the service-connected disability.

(d) Spouses of persons on active duty shall furnish a document from the Department of Defense or the DVA certifying that the person on active duty is listed as missing in action, captured in line of duty, or forcibly detained or interned in line of duty by a foreign government or power; such spouses shall also furnish evidence of marriage and a statement that the spouse is married to the person on active duty at the time of that application for employment.

(e) The unremarried widow or widower of a deceased veteran shall furnish a document from the Department of Defense or the DVA certifying the service-connected death of the veteran, and shall further furnish evidence of marriage and a statement that the spouse is not remarried.

(f) Spouses of persons eligible to claim preference under subsection 55A-7.008(2), F.A.C., shall furnish certification from the VA that the veteran has a total and permanent service-connected disability.

(g) All documents specified in this section must clearly indicate that they are copies of originals.

Specific Authority 295.07(2) FS. Law Implemented 295.07 FS. History–New 3-30-88, Formerly 22VP-1.013, Amended 2-12-90, 7-12-93, 12-27-98,________.

 

55A-7.014 Notice and Documentation by Employer.

(1) The covered employer shall inform preference-eligible applicants at the time of application of the right to an investigation by the Department if a non-preference eligible applicant is appointed to a position, the time limits for requesting such investigation, and the address to which the request for an investigation should be sent.

(2) Each covered employer shall ensure that records are maintained which document the manner of the selection and the propriety of the selection process and decision in accordance with federal and state laws.

Specific Authority 295.07(2) FS. Law Implemented 295.11 FS. History–New 3-30-88, Formerly 22VP-1.014, Amended 12-27-98, Repealed________.

 

55A-7.015 Preference in Retention.

(1) In all covered positions where layoffs are necessitated, special consideration in the retention of employees shall be given first to those persons included under subsections 55A-7.008(1) and (2), F.A.C., and second to those persons included under subsections 55A-7.008(3), and (4), and (5), F.A.C., of this chapter. The point system procedures described in Rule 55A-7.010, F.A.C., may also be utilized by covered employers. In the event that a point system is not utilized by the covered employer, the employer must demonstrate how special consideration was afforded at each step in the retention process.

(2) Each covered employer shall ensure that records are maintained which document the manner of the retention and the propriety of the retention process and decision in accordance with federal and state laws.

Specific Authority 295.07(2) 295.085(2) FS. Law Implemented 295.07, 295.08, 295.085 295.085(2) FS. History–New 3-30-88, Formerly 22VP-1.015, Amended 7-12-93,________.

 

55A-7.016 Enforcement of Preference.

(1) An applicant eligible for veterans’ preference who believes he or she was not afforded employment preference in accordance with this chapter may file a complaint with the Department at 11351 Ulmerton Road, Room 311-K, Largo, Florida 33778, Post Office Box 31003, St. Petersburg, Florida 33731, requesting an investigation. When the applicant has received notice of a hiring decision from a covered employer, the complaint shall be filed within 21 calendar days from the date that the notice is received by the applicant. The day of receipt by the applicant of the hiring decision will be presumed to be the date on the employer’s letter plus 5 calendar days for mail unless there is definitive proof that the applicant received the notice earlier. When the applicant has not received notice of a hiring decision within two calendar months of the receipt of the application by the employer, the applicant shall contact the employer to determine if the position has been filled by a nonpreferred applicant. After having determined from information supplied by the employer that the position has been filled by the appointment of a nonpreferred applicant, the preferred applicant may file a complaint within three calendar months of the date the application was received by the employer. Receipt by the employer will be presumed to be the date stamp utilized by the employer to document mail receipt on the date shown on the application, if no other proof of receipt is available. If the position has not been filled, the time period for filing a complaint is extended to provide the preferred applicant one calendar month after having determined that the position has been filled. It is the responsibility of the preferred applicant to maintain contact with the employer to determine if the position has been filled.

(2) Within 10 calendar days of receipt of the complaint, the Department shall send a written acknowledgment of receipt to the complainant, advising that the complaint will be acted upon in accordance with Chapter 55A-7, F.A.C., a copy of which shall be furnished to the complainant.

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

(4) Within 30 calendar days of a request by the Department, the employer or hiring authority shall furnish the following information:

(a) The documentation required by subsection 55A-7.014(2) or 55A-7.015(2), F.A.C., whichever applies.

(b) A statement justifying the hiring decision.

(c) If applicable, a statement as to whether the essential job functions can or cannot be performed by the applicant. If a statement is provided advising the essential job functions cannot be performed by the 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.

(5) Within 30 calendar days of receipt of the information from the covered employer, the Department shall issue its investigative findings, by certified mail, return receipt requested, and shall provide copies to the complainant and the employer. The report 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 Rule 55A-7.010 or 55A-7.011, F.A.C., of this chapter.

(e) The nature of the preference which the applicant is claiming.

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

(g) A factual finding, based on information considered, as to whether the veteran’s complaint is valid, invalid, and whether it lacks merit.

(6) If the complaint is found to be invalid, the Department shall also notify the complainant, 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.

(7) If the complaint is found to be valid, at the time of issuing its findings 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 20 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 10 calendar days. The Department shall notify the complainant within 10 calendar days of receipt of the complainant’s notice, by letter sent certified mail, return receipt requested, of the right to petition the Public Employees Relations Commission for a hearing within 20 calendar days from the receipt of such letter, and the address to which the petition shall be sent.

(8) If the complaint is found to be valid and the employer fails to send a written statement of the proposed action to the complainant within 20 calendar days of the date the Department’s findings are issued to the complainant and employer, the complainant shall, within 10 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 letter, sent certified mail, return receipt requested, of the right to petition the Public Employees Relations Commission for a hearing within 20 calendar days from receipt of such letter, and the address to which the petition should be sent.

Specific Authority 295.07(2) FS. Law Implemented 295.11 FS. History–New 3-30-88, Formerly 22VP-1.016, Amended 2-12-90, 7-12-93, 12-27-98,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: David Herman
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Earl Daniell
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 4, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: February 15, 2008