The proposed amendments will update rules in Chapter 55A-7, F.A.C., to conform with current statutory provisions of Chapter 295, Fla. Stat. (2015).

 

DEPARTMENT OF VETERANS’ AFFAIRS

Division of Veterans’ Benefits and Assistance

RULE NOS.:RULE TITLES:

55A-7.003Definitions

55A-7.007General Eligibility for Appointment and Retention Preference

55A-7.008Persons Eligible for Appointment and Retention Preference

55A-7.009Announcements, Applications and Due Process

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

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

55A-7.0111Reinstatement or Reemployment; Promotion Preference

55A-7.013Documentation of Preference Claim

55A-7.015Preference in Retention

55A-7.016Enforcement of Preference

PURPOSE AND EFFECT: The proposed amendments will update rules in Chapter 55A-7, F.A.C., to conform with current statutory provisions of Chapter 295, Fla. Stat. (2015).

SUMMARY: The Florida Legislature modified provisions in the Florida Statutes causing some rule provisions to become inconsistent. Chapter 55A-7 addresses requirements for the State of Florida and its political subdivisions to grant Veterans' Preference points in the appointment and retention processes for specified employees, and provide a certification form to facilitate the process.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Since the proposed rule amendments only revise existing procedures for Florida state and local governments and do not impact the small business or the private sector, there are no new adverse economic and non-economic impacts, just the refinement of current rules to align with Florida Statutes. Any resulting regulatory cost increases that may occur from training and implementation of the amended rules are anticipated to be minimal.

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.

RULEMAKING AUTHORITY: 295.07(2) FS.

LAW IMPLEMENTED: 295.065, 295.065, 295.07, 295.08, 295.085, 295.09, 295.11, 295.123, 295.14 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Linda Williams, Florida Department of Veterans’ Affairs, 11351 Ulmerton Road, Room 311-K, Largo, Florida 33778, [e-mail]/ or [phone], ext. 5611. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Linda Williams, Florida Department of Veterans’ Affairs, 11351 Ulmerton Road, Room 311-K, Largo, Florida 33778, [e-mail] or [phone], ext. 5611

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

55A-7.003 Definitions.

As used in the rules of chapter 55A-7, F.A.C.:

(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 s. 295.08, F.S. and subsection 55A-7.010, of this chapter 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) “Death under Combat Related conditions” means the death was determined by the Department of Defense or U.S. Government to have been incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duties under conditions simulating war, or through an instrumentality of war.

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

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

(9) “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.

(10) “Family Member” for the purpose of Veterans’ Preference, includes the mother, father, legal guardian, or unremarried widow or widower of a veteran.

(11) “Florida National Guard” means either the Florida Air National Guard or Florida Army National Guard.

(12)(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.

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

(14) “Preference-Eligible Applicant” or “Preferred Applicant” means an applicant eligible for preference in appointment or employee eligible for preference in retention pursuant to s. 295.07, F.S., including certain servicemembers and veterans, and the spouse and family members of the servicemembers and veterans.

(15) “Reserve Component of the United States Armed Forces” means the United States Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve and Coast Guard Reserve.

(16) “Servicemember” as found in s. 295.065, F.S., includes a person currently serving in the active military, naval, or air service under honorable status or a “veteran” as defined in s. 1.01(14), F.S.

(17)(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.

(18)(12) “Veteran” or “Wartime Veteran” is as defined in s. 1.01(14), F.S.

(a) The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released under honorable conditions only or who later received an upgraded discharge under honorable conditions, notwithstanding any action by the United States Department of Veterans Affairs on individuals discharged or released with other than honorable discharges. Active duty for training may not be allowed for veterans’ preference eligibility.

(b) To receive benefits as a “Wartime Veteran,” a veteran as described in (a) must have served at least one day in a campaign or expedition for which a campaign badge has been authorized, including any armed forces expeditionary medal or the global war on terrorism medal, or during one of the following periods of wartime service:

1. Spanish-American War: April 21, 1898, to July 4, 1902, and including the Philippine Insurrection and the Boxer Rebellion.

2. Mexican Border Period: May 9, 1916, to April 5, 1917, in the case of a veteran who during such period served in Mexico, on the borders of, or in the waters adjacent to Mexico.

3. World War I: April 6, 1917, to November 11, 1918; extended to April 1, 1920, for those veterans who served in Russia; also extended through July 1, 1921, for those veterans who served after November 11, 1918, and before July 2, 1921, provided such veterans had at least one day of service between April 5, 1917, and November 12, 1918.

4. World War II: December 7, 1941, to December 31, 1946.

5. Korean War: June 27, 1950, to January 31, 1955.

6. Vietnam War: February 28, 1961, to May 7, 1975.

7. Persian Gulf War: August 2, 1990, to January 2, 1992.

8. Operation Enduring Freedom: October 7, 2001, and ending on the date thereafter prescribed by presidential proclamation or by law.

9. Operation Iraqi Freedom: March 19, 2003, and ending on the date thereafter prescribed by presidential proclamation or by law.

(a) The veteran must have served at least 1 day during a wartime period to be eligible for veterans’ perference. 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.

(19) “Veterans’ Preference” means laws enacted to prevent veterans from being penalized in their civilian careers for their time in military service.  Veterans’ Preference laws recognize the economic loss suffered by citizens who have served their country in uniform, restore veterans to a favorable competitive position for public employment, and acknowledge the larger obligation owed to disabled veterans.  Preference shall be awarded as detailed in s. 295.08, F.S., when numerically based selection is used and s. 295.085, F.S. when numerically based selection is not used.

Rulemaking Authority 295.07(2) F.S.. Law Implemented 1.01(14), 295.065, 295.07 FS.(2)(c) F.S.  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, 6-11-08,______.

 

55A-7.007 General Eligibility for Appointment and Retention Preference.

Chapter 55A-7, F.A.C., sets forth procedures for providing preference and priority in the employment selection and retention practices of agencies of the State and its political subdivisions as defined in s. 1.01(8), F.S., applying such rules to those certain servicemembers, veterans, spouses and family members of servicemembers and veterans specified in s. 295.07(1), F.S., who This chapter shall apply to any veteran or the spouse of any veteran who:

(1) Have Has not been classified by any branch of the Armed Forces of the United States as a deserter; or

(2) Have Has not received a discharge under less than honorable conditions upon separation from the Armed Forces.

(3) Have not been designated as exempt pursuant to s. 295.07(4), F.S. Who is a resident of the State of Florida.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.065, 295.07(4), 295.123, 295.07(3) FS. History–New 3-30-88, Formerly 22VP-1.007, Amended 12-27-98,______.      

 

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 pursuant to s. 295.07, F.S.:

(1) Disabled veterans who have served on active duty in any branch of the United States 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 s. 1.01(14), F.S., and subsection 55A-7.003(19), F.A.C., who has served in active duty during a specified wartime period for at least one day in a campaign or expedition for which a campaign badge has been authorized, including any armed forces expeditionary medal or the global war on terrorism medal, or during one of the specified periods of wartime service; however, active duty for training is not allowed for eligibility.

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

(5) The mother, father, legal guardian, or unremarried widow or widower of a member of the United States Armed Forces who died in the line of duty under combat-related conditions, as verified by the Department of Defense. 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).

(6) A veteran as defined in s. 1.01(14), F.S., and subsection 55A-7.003(19), F.A.C., who has served in active duty as specified; however, active duty for training is not allowed for eligibility.

(7) A current member of any reserve component of the United States Armed Forces or the Florida National Guard.

Rulemaking Authority 295.07(2) 085(2) FS. Law Implemented 295.07(1)and (3) FS. History–New 3-30-88, Formerly 22VP-1.008, Amended 2-12-90, 6-21-92, 6-11-08,________.

 

55A-7.009 Announcements, Applications and Due Process.

(1) The employer shall give notice in all written announcements and audio and video advertisements of employment opportunities subject to preference under s. 295.07, F.S., vacancies in covered positions that preference in initial appointment will be given to preference-eligible applicants 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.

(3) Any employment application forms for positions that are subject to Veterans’ Preference under s. 295.07, F.S., Forms provided for application for covered employment shall ask whether the applicant is claiming Veterans’ Preference, and shall state that required documentation must accompany application or be submitted prior to the application closing or deadline date and time.

(4) The 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.

(5) In the event that a preference-eligible applicant is not selected for a position, the employer shall notify the applicant within 14 business days of the hiring decision which shall be determined by the employer upon submitting an offer of employment to a selected applicant for the position and receiving an acceptance by the selected applicant for a date certain to start work.

(6) The employer is required to document and justify the decision to hire a non-preference eligible applicant over the preference-eligible applicant because the decision may be challenged by the preference-eligible applicant and subjected to review by the Department of Veterans’ Affairs pursuant to s. 295.11, F.S., resulting in findings as to the merits which will be sent to the complaining applicant and the employer. If appealed further, the Department’s opinion may be sent to the Public Employees Relations Commission.

(7) Jurisdiction to effectuate the purposes of ss. 295.07-295.09, F.S., shall vest with the Public Employees Relations Commission which shall render a final decision under the powers and duties authorized by ss. 295.11 and 447.207(9)(c), F.S.  Its decision shall be final agency action which shall be reviewable pursuant to s. 447.504, F.S., in the district courts of appeal pursuant to s. 120.68, F.S.

Rulemaking Authority 295.07(2) F.S.. Law Implemented 295.065, 295.11 FSF.S.. History–New 3-30-88, Formerly 22VP-1.009, Amended 2-12-90, 7-12-93, 6-11-08,________.

 

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

(1) The names of persons, unless exempt under s. 295.07(4), F.S., who receive a qualifying examination score for a position, are also eligible to receive Veterans’ Preference points or augmentation to be added to the final examination score as defined in subsection 55A-7.003(9), F.A.C., and shall be added to an appropriate register in order of the augmented score which is sum of examination score and applicable augmentation unless subject to (2)(c) of this rule. 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:

(2) 15 points of augmentation shall be added for:

(a) Those disabled veterans:

1. Who have served on active duty in any branch of the United States Armed Forces, have received an honorable discharge, and have established the present existence of a service-connected disability that is compensable under public laws administered by the DVA; or

2. Who are receiving compensation, disability retirement benefits, or pension by reason of public laws administered by the DVA or Department of Defense.

(b) The spouse of a person who has a total disability, permanent in nature, resulting from a service-connected disability and who, because of this disability, cannot qualify for employment, and the spouse of a person 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.

(c) Except for classes of positions with Federal Government designations of professional or technician, all persons eligible for a 15-point preference whose service-connected disabilities have been rated to be 30% or more shall be placed at the top of the appropriate register or employment list in accordance with his or her respective augmented rating score in addition to the preference points.

(3) 10 points of augmentation shall be added for:

(a) A wartime veteran as defined in s. 1.01(14), F.S., and subsection 55A-7.003(19), F.A.C., and who has served at least one day in a campaign or expedition for which a campaign badge has been authorized, including any armed forces expeditionary medal or the global war on terrorism medal, or during one of the specified periods of wartime service. However, active duty for training is not allowed for eligibility under this paragraph.

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

(c) The mother, father, legal guardian, or unremarried widow or widower of a member of the United States Armed Forces who died in the line of duty under combat-related conditions, as verified by the United States Department of Defense.

(4) 5 points of augmentation shall be added for:

(a) A veteran as defined in s. 1.01(14), F.S., and subsection 55A-7.003(19), F.A.C., not including wartime veterans who are eligible for 10 points of augmentation under (3) in this rule. However, active duty for training is not allowed for eligibility under this paragraph.

(b) A current member of any reserve component of the United States Armed Forces or the Florida National Guard.

(5)Augmented scores are to be added to a qualified candidate’s examination score of 100 or more in addition to the applicable veteran’s preference points as follows: 15 points for (2)(a) or (b); 10 points for (3)(a), (b), or (c); 5 points for (4)(a) or (b).  However, where the highest possible examination score is less than 100, an alternative procedure makes it permissible to apply percentages to calculate additions to points instead, as follows: 15 percent for persons described in (2)(a) or (b) of this rule; 10 percent for persons described in (3)(a), (b), or (c) of this rule; and 5 percent for persons described in (4)(a) or (b) of this rule.

(6)Appointments to positions under local merit system rules are to be made from the appropriate register or employment list in accordance with these augmented ratings.

(7) Employers shall comply with the requirements of any applicable collective bargaining agreements whenever such agreements provide better preference augmentation than this rule.

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

(b) 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.

Rulemaking 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, 6-11-08,_______.

 

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

(1) When open positions are not filled based upon examination scores or numerically-based selection, and are not among the exempt positions described in s. 295.07(4), F.S., Veterans’ Preference in appointment, employment, and retention requires that a preference-eligible applicant be given special consideration and priority at each step of the selection process.

(2) Preference-eligible applicants who meet the minimum qualifications for the open position shall be considered for selection prior to all other applicants and shall be granted an interview.

(3)   When two equally-qualified preference-eligible applicants are considered for an open position, selection preference shall be awarded first to paragraphs (a) and (b) of this subsection, and second to paragraphs (c) through (g) of this subsection:

(a) Those disabled veterans who possess the minimum qualifications necessary to discharge the duties:

1. Who have served on active duty in any branch of the United States Armed Forces, have received an honorable discharge, and have established the present existence of a service-connected disability that is compensable under public laws administered by the United States Department of Veterans Affairs; or

2. Who are receiving compensation, disability retirement benefits, or pension by reason of public laws administered by the United States Department of Veterans Affairs and the United States Department of Defense.

(b) The spouse of a person who has a total disability, permanent in nature, resulting from a service-connected disability and who, because of this disability, cannot qualify for employment, and the spouse of a person 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 who possesses the minimum qualifications necessary to discharge the duties.

(c) A wartime veteran as defined in s. 1.01(14), F.S., and subsection 55A-7.003(19), F.A.C., who has served at least one day in a campaign or expedition for which a campaign badge has been authorized, including any armed forces expeditionary medal or the global war on terrorism medal, or during one of the specified periods of wartime service.

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

(e) The mother, father, legal guardian, or unremarried widow or widower of a member of the United States Armed Forces who died in the line of duty under combat-related conditions, as verified by the Department of Defense.

(f) A veteran as defined in s. 1.01(14), F.S., and subsection 55A-7.003(18), F.A.C. However, active duty for training may not be allowed for eligibility under this paragraph.

(g) A current member of any reserve component of the United States Armed Forces or the Florida National Guard.

(4) At each stage of the hiring process, if a preference-eligible applicant meets minimum qualifications necessary to discharge the duties of the position, he or she will advance to the next step in the public employer’s selection process.

(5) If, at any step in the selection process, a determination is made that the preference-eligible applicant is not qualified to advance to a subsequent step in the selection process, a higher level of management having authority to overturn the initial determination shall review such determination to ensure that the determination was correct.

(6) Appointments to positions under local merit system rules are to be made from the appropriate register or employment list in accordance with these augmented ratings.

(7) Employers shall comply with the requirements of any applicable collective bargaining agreements whenever such agreements provide better preference augmentation than this rule.

(8) Veterans’ Preference does not require the employment of a preferred applicant over a nonpreferred applicant who is the most qualified applicant for the position, and if a preference-eligible applicant is not selected for a position, an employer may then consider other applicants.

(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), (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 at Rule 55A-7.016, F.A.C., of this chapter, and ultimately by the Public Employees Relations Commission.

Rulemaking 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, 6-11-08, _______.

 

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 for a required military purpose other than for training, within one year of the date of discharge or separation subsequent to the extension.

(2) Persons reinstated or reemployed under this rulesection 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 a numerically based selection process is used 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. When a numerically based selection process is not used, Rule 55A-7.011, F.A.C., applies. 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.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.08, 296.085, 295.09 FS. History–New 3-30-88, Formerly 22VP-1.0111, Amended 6-11-08,_______.

 

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 in accordance with subsection (7) below.

(4) The covered employer shall determine whether an applicant is eligible for Veterans’ Preference.

(5) The covered employer shall document the employee’s election of Veterans’ Preference perference.

(6) Intentional misrepresentation of any the claim for preference shall disqualify the applicant from claiming Veterans’ Preference on future applications, and if employed, shall be subject to disciplinary action by the covered employer, including dismissal.

(7) Documentation shall include a Veterans’ Preference Certification, FDVA form VP-1, found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06654, and 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 mother, father, legal guardian, or unremarried widow or widower of a deceased veteran shall furnish a document from the Department of Defense showing the death of the service member while on duty status under combat-related conditions or the DVA certifying the service-connected death of the veteran, and The mother, father, or legal guardian shall provide evidence of familial relationship, and the unremarried widow or widower shall further furnish evidence of marriage and confirmation that the spouse has not remarried certified by a completed FDVA form VP-3, found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06656, in addition to the FDVA form VP-1, first appearing in subsection (7) of this rule, confirming that the spouse has not remarried.  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) The current member of any reserve component of the United States Armed Forces shall provide a completed Certification of Current Member of Reserve Component of the United States Armed Forces or The Florida National Guard, FDVA form VP-2, found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06655, signed by an immediate military supervisor, in addition to the FDVA form VP-1, first appearing in subsection (7) of this rule.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.065, 295.07, 295.11 FS. History–New 3-30-88, Formerly 22VP-1.013, Amended 2-12-90, 7-12-93, 12-27-98, 6-11-08, ________.

 

55A-7.015 Preference in Retention.

(1) An employer shall provide no less than 60 days notice to affected employees prior to beginning implementation of a workforce reduction or layoff plan.  This notice shall describe the different categories of preference-eligibility, shall provide employees a minimum of 30 days to provide documentation of eligibility, and designate an appropriate point of contact within organization for employees to submit this documentation.

(2)(1) In all covered positions where workforce reduction plans or layoffs are necessitated, employers shall credit the amount of time the preference-eligible employee served on active duty in the U.S. Armed Forces as years of service with the employer for the purposes of determining seniority. Service shall be credited on a year-for-year and month-for month basis 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), (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.

(3) A numerically-based process may be used for retention, pursuant to s. 295.08, F.S.

(4) If a numerically-based process is not used, the covered employer shall give preference and priority to retention of preference-eligible employees in the following manner:

(a) Employees who are not eligible for preference shall be considered first for layoff, before preference-eligible employees.

(b) If there are no other non-preference employees, then preference-eligible employees can be considered for layoff.

(c) In the event two equally-qualified preference-eligible employees are considered for layoff, retention shall be awarded first to disabled veterans under s. 295.07(1)(a), F.S., or spouses under s. 295.07(1)(b), F.S.

(5) Preference-eligible employees who have previously provided proof of eligibility to the covered employer, and have this documentation as part of their personnel file, are not required to resubmit proof of eligibility for retention.

(6)(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.

(7) In the event that a preference-eligible employee is not selected for retention, the employer shall notify the applicant within seven days of the retention decision.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.07, 295.08, 295.085 385.085 FS. History–New 3-30-88, Formerly 22VP-1.015, Amended 7-12-93, 6-11-08, _______ .

 

55A-7.016 Enforcement of Preference.

(1) Employers are required to document and justify the decision to hire a nonpreferred applicant over a preferred applicant.

(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, Division of Benefits and Assistance, 9500 Bay Pines Blvd., Room 214, St. Petersburg, Florida 33708.

(3) In the event of any investigation conducted pursuant to s. 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)(1) Such complaint shall be filed within 60 calendar days from the date that the notice is received by the preference-eligible applicant pursuant to ss. 120.569 and 120.57, F.S. The day of receipt will be presumed to be the date on the employer’s letter plus five calendar days for mail unless the applicant provides proof that the applicant received the notice earlier 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 9500 Bay Pines Blvd., Room 214, St. Petersburg, Florida 33708, 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.

(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 30 days after the closing date of the position advertisement or the interview date, whichever is later in time, if the applicant has not received notice of a hiring decision.  Such designated person shall provide notice regarding the status on the hiring decision, and shall document the applicant’s contact with that office in writing. If a hiring decision has been made without the required notification by the employer, the time for an appeal is tolled and the preference-eligible applicant may file a complaint with the Department, as stated above, at any time within 6 calendar months from the date that the status is confirmed by the employer.

(6)(2) Within ten calendar days of receipt 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 acted upon in accordance with Chapter 55A-7, F.A.C., a copy of the findings shall be furnished to the complainant.

(7)(3) Within 20 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 within ten days of assignment.

(8)(4) Within 30 calendar days of the Department initiating a request for documentation a request by the Department, 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 top applicants, interview notes, offers of employment, acceptance of offer letters, any other relevant documentation; required by subsection 55A-7.015(2), F.A.C., whichever applies.

(b) A plain statement justifying the hiring decision; and.

(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)(5) After investigation and review of the complaint and documentation provided by the complainant and employer Within 30 calendar days of receipt of the information from the covered employer, the Department may shall issue its opinion investigative findings by certified mail, return receipt requested, and shall provide copies to the complainant and the employer.  The opinion 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 chapter 295, F.S. Rule 55A-7.010 or 55A-7.011, F.A.C., of this chapter.

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

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

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

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

(10)(6)If the complaint is found to lack merit be invalid, 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)(7) If the complaint is found to have merit, be valid, at the time of issuing its opinion 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 30 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 15 10 calendar days. The Department shall notify the complainant within ten 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 45 20 calendar days from the receipt of such letter, and the address to which the petition shall be sent.

(12)(8) If the complaint is found to have merit be valid and the employer fails to send a written statement of the proposed action to the complainant within 30 20 calendar days of the date the Department’s findings are issued to the complainant and employer, the complainant shall, within 1510 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 ten 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 45 20 calendar days from receipt of such letter, and the address to which the petition should be sent.

(13) After such review, a preference-eligible applicant may appeal to the Public Employees Relations Commission in accordance with ss. 447.201-447.609, F.S. Upon obtaining jurisdiction, the Public Employees Relations Commission will hear and determine penalties for violation of preference statutes and rules, and may order remedies pursuant to s. 295.14, F.S., including but not limited to compensation for lost wages, reasonable attorney fees and costs, which determination is conclusive on the agency, employee, and officer concerned.

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,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Charles Faircloth, General Counsel

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Mike Prendergast, Executive Director

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 1, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 2, 2015