Definitions, General Eligibility for Appointment and Retention Preference, Persons Eligible for Appointment and Retention Preference, Announcements, Applications and Due Process, Employment Preference When Using a Numerically Based Selection Process,...

 

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

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 42 No. 57, March 23, 2016 issue of the Florida Administrative Register.

These changes are being made to address comments expressed by the Joint Administrative Procedures Committee and written comments timely submitted to the agency.

 

55A-7.003 Definitions.

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

(1) through (2) No change.

(3) “Augmented Rating” means the final numerical score received by a preference-eligible applicant after it is increased by Veterans’ Preference augmentation points in accordance with s. 295.08, F.S. and subsection 55A-7.010, of this rule chapter.

(4) “Complaint Lacking Merit” means a complaint lacking a substantial ground basis in law or and/or fact, and which has is so insufficient in that there is little or no if any prospect of being that it can be successfully resolved in favor of the veteran.

(5) “Death under Combat Related Cconditions” means the death was determined by the Department of Defense or U.S. Government to have occurred 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) through (12) No change.

(13) “Numerically Based Selection Process” means an examination resulting in a numerical score that is used to determine the qualifications for entrance into employment.

(14) through (17) No change.

(18) “Veteran” or “Wartime Veteran” is 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 will may not qualify a veteran be allowed for Vveterans’ Ppreference eligibility.

(b) To receive benefits as a “Wartime Veteran,” a veteran as described in (a) must have served at least 1 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 specific following periods of wartime service described in s. 1.01(14), F.S.:

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.

(19) No change.

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

 

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

Rule cChapter 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:

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

(2) Have 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.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.065, 295.07(4), 295.123 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) through (2) No change.

(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 1 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) through (5) No change.

(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) No change.

Rulemaking Authority 295.07(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) through (2) No change.

(3) Any employment application forms for positions that are subject to Veterans’ Preference under s. 295.07, F.S., 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) No change.

(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 timeclock shall begins to run when be determined by the employer secures a commitment upon submitting an offer of employment to a selected applicant for the position and receiving an acceptance from 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 investigative findings as to the merits which will be sent to the complaining applicant and the employer. If an applicant pursues an administrative determination in accordance with ss. 120.569 or 120.57, F.S., 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 for an administrative determination which may include hearing, dismissal without hearing, and entering orders as it deems appropriate 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 FS. 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 an Augmented Rating as defined in rule 55A-7.003(3), F.A.C. Veterans’ Preference points shall or augmentation to be added to the final examination score as defined in subsection 55A-7.003(9), F.A.C., in order to increase an applicant’s final score, and the names of preference-eligible persons shall be added to an appropriate register in order of the augmented score which is sum of examination score and applicable augmentation points unless subject to (2)(c) of this rule.

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

(a) through (b) No change.

(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 at 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 augmentation points augmented rating score in addition to the preference points.

(3) 10 points of augmentation points 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 1 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) through (c) No change.

(4) 5 points of augmentation points 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) No change.

(5) Augmentation points 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) in this rule; 10 points for (3)(a), (b), or (c) in this rule; 5 points for (4)(a) or (b) in this rule.  However, where the highest possible examination score is more or 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. If the total possible score is exactly 100, augment directly with 5, 10, or 15 points; if the total possible points are less than or more than 100 points, use percentages to calculate points for addition to examination score. For example, if an applicant scores 50 points, and is a person described in (3)(a), (b), or (c) of this rule, then calculate 10% for additional points, resulting in a final score of 55.

(6) Appointments to positions subject to collective bargaining agreements 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.

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) No change.

(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 in all cases.

(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) through (b) No change.

(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 1 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) through (e) No change.

(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) No change.

(4) No change.

(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 subject to collective bargaining agreements 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.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.085 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) No change.

(b) Reinstatement or reemployment is made within 1 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 1 one year of the date of discharge or separation subsequent to the extension.

(2) Persons reinstated or reemployed under this rule 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, such persons shall be eligible for preference points and ranking on the register as provided by rRule 55A-7.010, F.A.C., of this rule chapter. When a numerically based selection process is not used, rRule 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) No change.

(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 rRule 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) through (5) No change.

(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 for all applicants shall include a Veterans’ Preference Certification, FDVA form VP-1, incorporated by reference and found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06923 http://www.flrules.org/Gateway/reference.asp?No=Ref-06654, and the following:

(a) through (d) No change. 

(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 Tthe mother, father, or legal guardian shall provide evidence of familial relationship, such as a birth certificate, and the unremarried widow or widower shall provide further furnish evidence of marriage, such as a marriage certificate, and certification confirmation that the spouse has not remarried certified by providing a completed Certification of Unremarried Widow or Widower, FDVA form VP-3, incorporated by reference and found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06925 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. 

(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, incorporated by reference and found at http://www.flrules.org/Gateway/reference.asp?No=Ref-06924 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. The current servicemember of any active component of the United States Armed Forces who is expected to be discharged or released from active duty service under honorable conditions no later than 120 days after the date that a Statement of Service certification or letter is prepared by the armed forces, shall be treated as a preference-eligible applicant. These documents may be provided in lieu of a DD-214 or other documentation which may not be available until active service has ended.

(g) The employer has an affirmative duty to notify the applicant if a timely submitted Veterans’ Preference claim is later found to be missing information; the employer shall advise the applicant of what is missing and provide a reasonable amount of time for the applicant to cure the deficiency.

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) through (3) No change.

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

(a) through (b) No change.

(c) In the event that 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) Each employer shall ensure that records are maintained which document the manner of the retention and the propriety of the retention process and justification for its final 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 7 seven days of the retention decision.

Rulemaking Authority 295.07(2) FS. Law Implemented 295.07, 295.08, 295.08 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 the basis for hiring decisions and justify the decision to hire a nonpreferred applicant over a preferred applicant by maintaining a file that includes documentation of advertised positions, dates 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, 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) through (3) No change.

(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 ss. 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 30 days have passed from after the final closing date for submitting an application 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) Within 10 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, and a copy of the findings shall be furnished to the complainant thereafter.

(7) Within 20 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 10 ten 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 all qualified top applicants who were considered for the position, interview notes, offers of employment and acceptance letters, acceptance of offer letters, any other relevant documentation.;

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

(c) No change.

(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) through (d) No change.

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

(f) through (g) No change.

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

(10) No change.

(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 ten 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 ten 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 After such review, a preference-eligible applicant may appeal to the Public Employees Relations Commission shall be conducted in accordance with ss. 447.201-447.609, F.S. Upon obtaining jurisdiction, the Public Employees Relations Commission may 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.

(14) Under s. 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 s. 447.207(11), F.S., may be reviewed by the district courts of appeal under s. 447.504, F.S., in accordance with the requirements of s. 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,________.

 

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