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State voluntary veterans’ preference laws keep marching along

April 23rd, 2015  |  Joy Waltemath

Flying somewhat under the radar is a plethora of new (and relatively new) state laws that authorize private employers to establish voluntary veterans’ preference employment policies. These laws allow employers to implement a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Some laws include promotion; others do not so specify. Some specify a veterans’ preference for retention during a reduction in force. A few extend the preference to spouses under certain conditions. Almost all state in some fashion that granting a veterans’ preference won’t violate any local or state equal employment opportunity law or regulation, including antidiscrimination provisions.

Take, for example, California. California AB 1383 is working its way through the state assembly. It would amend Title 2 of the Government Code by adding an article that would allow private employers with one or more employees to voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Veteran is defined in the bill as an individual who served in the U.S. Armed Forces on active duty and who was discharged or released with an honorable discharge.

The bill also says employers may require that a veteran submit a Department of Defense Form 214 (relating to separation from military service) to be eligible for the preference. Granting a veterans’ preference, in and of itself, would “be deemed not to violate any local or state equal employment opportunity law or regulation.”

Other recent state laws. A little research reveals the following recent state activity (but remember this is a blog, not a research project; there could be others out there): Alabama has a similar bill (S.B. 269) pending in both its House and Senate.  Arizona enacted a law (H 2094) April 6 of this year. Last year California enacted legislation (Ch. 645 (A. 1397), L. 2013) to include the veterans’ preference system among employment selection devices of the State Department of Human Resources.

Florida’s law (H. 7015, L. 2014), enacted last year, extends further and allows preference in hiring to an honorably discharged veteran; the spouse of a veteran with a service-connected disability; the un-remarried widow or widower of a veteran who died of a service-connected disability; or the un-remarried widow or widower of a member of the U.S. Armed Forces who died in the line of duty under combat-related conditions.

Georgia sent its voluntary veterans’ preference bill (HB 443) to the governor on April 6, 2015; Indiana has a bill pending (H. 1530); and Idaho’s law, passed in 2014, says that private, nonpublic employers may give preference in the hiring and promotion of employees to those who are eligible for public employment preferences (S. 1316). Iowa’s law is broader, like Florida’s: It extends not only to veterans but also to the spouse of a veteran who has sustained a permanent, compensable, service-connected disability and the surviving spouse of a deceased member of the United States armed forces who died while serving on active duty during a time of military conflict or who died as a result of such service (S. 303, L. 2013).

Kentucky recently enacted a law allowing private employers to have a voluntary veterans’ preference employment policy (H. 164, L. 2015); Maine did last year (Ch. 576 (S. 735). Massachusetts’ law, also enacted in 2014, includes a voluntary preference for spouses of disabled veterans and surviving spouses of veterans (Ch. 62 (S. 2052). Michigan’s 2014 law, Public Act 508 (H. 5418), does not extend to spouses.

Both Montana (S. 196) and Nebraska (L.B. 272) passed laws in 2015; only Nebraska’s includes spouses of veterans under certain conditions. New Hampshire (S. 55) has a bill pending. Although New Jersey passed a law in 2014 providing a veterans’ preference in appointments to the State Police (Ch. 51 (A. 1510)), the state has a handful of other veterans preference bills pending, including for school districts and non-civil service positions. New York (S. 4326) also has legislation pending this year that has a strict definition of veteran and, if passed, would not apply to spouses.

Oklahoma’s governor signed 2015 legislation (S. 195) on April 10. Oregon enacted its law last year to allow private employers to give preference in hiring and promotion to specified veterans (Ch. 86 (H. 4023). Also last year, South Carolina accomplished the same thing, essentially, by amending its fair employment practices law to provide that it is not an unlawful employment practice for a private employer to give hiring preferences to a veteran, and to extend the preference to the veteran’s spouse if the veteran has a service-connected permanent and total disability (H. 4922).

Texas has a couple of identical bills (S. 1713 and H. 3547) pending in committee. Effective May 12, 2015, Utah private employers will be allowed to create voluntary, written veterans’ employment preference programs (H. 232). Finally, Virginia’s law relating to preference for veterans and spouses of certain veterans in private employment (Ch. 570 (S. 516)) was enacted last year.

Early adopters. It appears that Washington passed its voluntary veterans’ preference law for private employers in 2011; Minnesota followed in 2012; and Arkansas passed a similar law in 2013.

What about Title VII? The Equal Employment Opportunity Commission Compliance Manual notes that federal, state, or local laws that confer special rights or privileges on veterans with respect to hiring are not affected by Title VII. However, if the veterans’ preference is not required by a local, state, or federal law (and these private employer laws are voluntary), the situation is not quite as clear.

Veterans’ preference statutes have, in the past, operated “overwhelmingly to the advantage of men,” the EEOC noted in a 1990 Policy Guidance. Things have changed in the past 25 years, but that Guidance stated that “where an employment preference is conferred upon veterans on the employer’s own initiative and is not mandated by statute, the discriminatory impact of the preference is not shielded from scrutiny under Title VII. As the language of Section 712 makes clear, the deference provided by that section applies only to veterans’ preferences that are created by law and not to those that are voluntarily accorded to veterans by employers. Falling outside the terms of Section 712, voluntary preferences are subject to Title VII adverse impact analysis.”

Better pay attention to these.