Florida's Veterans' Preference Act: Providing Meaningful Opportunities to Those Who Have Served Our Country.

• Date: 01 July 2023
• Author: Morton, Gregg Riley

With 1.5 million veterans, comprising 12% of Florida's adult population, Florida prides itself on being the nation's most veteran friendly state. (1) In his November 2022 Veterans Day statement, Gov. DeSantis highlighted Florida's ongoing commitment to serving its veterans:

Florida's state agencies and partners offer an abundance of resources and opportunities to help veterans find meaningful employment, support their families, and contribute to their communities.... Florida's veterans have made countless sacrifices to protect our freedoms, and in return we are working hard to ensure they have the resources and support they need to be successful and take care of their families. (2) One of the myriad ways that Florida recognizes the service of veterans is to afford them preference in employment. Such laws encouraging employers to hire veterans of wars are some of the oldest employment-related statutes in the country. The major national law in this area followed the return of veterans from World War II, but even before this, there were laws encouraging the hiring of veterans for federal jobs dating back to the Civil War. (3) Following World War II, Florida was an early adopter of a state law giving veterans a preference in state-level public sector hiring. Florida's current laws giving veterans and other eligible individuals a preference in employment traces its history back to 1947. (4) The Florida Veterans' Preference Act, found in F.S. [section][section]295.065 through 295.11 (2022), has been a key feature in the employment and retention of veterans in public sector jobs over the course of many decades.

The policy reasons for the act are self-evident. Over 70 years ago, the Florida Supreme Court, using language that is equally applicable today, explained:

The purpose of veterans' preference acts is sometimes said to be to reward those who served their country in time of need; and, again, it is stated that such acts are a recognition of the qualities and traits developed by military service which tend to make veterans superior public servants. But whether such preference is considered to be in recompense for the services performed and the sacrifices suffered by veterans, or whether it is considered to be a legislative recognition of the habits of industry, obedience, and fortitude instilled by their service on active duty in the armed forces of our country, there can be no doubt that the Legislature desired the veteran to have the actual benefit of the preference granted--either upon his entrance into public service or upon his promotion in such service.... Preference to veterans must be a reality. It cannot be made illusory or a mere gesture. (5) While there have been significant changes in the act over time, Florida's commitment to its veterans remains strong and these changes have been toward offering more opportunity and a more robust preference. The legislature has more recently reiterated the motivation for the act, stating that

it is the policy of the State of Florida that in appreciation for their service to this state and the country, and in recognition of the time and advantage lost toward the pursuit of a civilian career, veterans as defined in F.S. [section]295.07 shall be granted preference in employment with the state and political subdivisions of or in the state. (6) The act continues to play an important role in Florida's recognition of veterans' service. The purpose of this article is to highlight some of the act's important features, including some best practices for employers who are required to comply with the act, and explain the basic process of how veterans' preference complaints are processed. Additionally, we recommend some options for ways in which we believe the act could be amended to undergird its purpose.

Eligibility for Preference

Unlike other employment laws that prevent discrimination against certain classes of applicants, the act requires eligible individuals to be given preference over other equally qualified applicants. However, the act does not guarantee a veteran the position based on the preference alone, and there are a number of provisions outlining which individuals are eligible, what level of preference is applicable, and which employers and positions are covered. In addition to the text of the act itself, the Florida Department of Veterans' Affairs (FDVA) has promulgated rules at Fla. Admin. Code Ch. 55A-7 that provide additional guidance. Moreover, the FDVA's website contains information about the act, (7) including a helpful list of frequently asked questions. (8)

Generally speaking, individuals who qualify for preference under the act include: 1) disabled veterans who have served on active duty in any branch of the U.S. Armed Forces who have a service-connected disability; 2) the spouse of a disabled veteran who cannot qualify for employment because of a total and permanent service-connected disability, or the spouse of a veteran missing in action, captured in line of duty by a hostile force, or detained or interned in line of duty by a foreign government or power; 3) a wartime veteran who has served on active duty during a specified wartime period; 4) the mother, father, and legal guardian of a service member who died as a result of military service under combat-related conditions; 5) the un-remarried widow or widower of a veteran who died of a service-connected disability; 6) a veteran who has served on active duty in any branch of the U.S. Armed Forces with an honorable discharge; and 7) current members of any reserve component of the U.S. Armed Forces or the Florida National Guard. (9)

The act's requirements apply to the state and its political subdivisions. However, making the determination of which employment positions are covered and which employers are covered or exempt is not always clear-cut. The act contains some exemptions, but also includes a cross-reference to the exemptions from the state Career Service System, while at the same time un-exempting positions in the State University System, Florida College System, and the School for the Deaf and the Blind. (10) Some exempted employers, such as the judicial branch, and some exempted positions, such as those that require Florida Bar licensure, are readily apparent by looking at the statutory language. (11) However, other exemptions are more nuanced. For example, the Public Employees Relations Commission (PERC or commission) recently clarified that employees of county clerks of court fell under the act, even though the clerks perform functions relating to both the judiciary and local county government. (12)

Once coverage of the employer and position is confirmed, (13) the act gives eligible individuals a number of advantages. For new hires, the state and its political subdivisions must give preference in hiring to qualified individuals. (14) Additionally, the state and its political subdivisions are required to reinstate or reemploy veterans whose civilian employment was interrupted by service in the armed forces, as well as afford them preference in the first promotion after such reinstatement or reemployment. (15) Finally, in instances where a public employer is needing to undergo layoffs or reductions in force, eligible employees should receive a preference in retention plans, with non-veterans and non-eligible employees being considered first for layoffs. (16)

Applying the Preference

To be entitled to the preference, the eligible applicant is required to submit some basic documentation demonstrating that he or she qualifies. Often this is the applicable certificate of release or discharge from active duty, generally referred to as a "DD-214," or a letter from the U.S. Department of Veterans Affairs demonstrating that the applicant or the veteran tied to the applicant was honorably discharged. However, employers should note that if an applicant indicates that he or she is claiming veterans' preference on the application but fails to supply this documentation, the employer has an affirmative duty to notify the applicant and give him or her an opportunity to cure the deficiency. (17)

Next, to advance in the hiring process, the applicant must also meet any minimum requirements. If a position, for example, requires a college degree, special certification, or other advanced training, the applicant will not necessarily be advanced in the process based solely on his or her status as a veteran...