AN ACT TO PERMIT A PRIVATE EMPLOYER OR A LOCAL GOVERNMENT EMPLOYER TO HAVE A VOLUNTARY VETERANS' PREFERENCE EMPLOYMENT POLICY.
Background: Currently, Title VII of the Civil Rights Act of 1964, amended 1991, at 42 U.S.C. Section 2000e, prohibits voluntary veterans preferences in employment as unlawfully discriminatory under Title VII due the potential disparate impact of female employees and applicants. However, veterans’ preferences are not subject to challenge under Title VII when granted by State law, by virtue of the exception provided in Section 712, which states:
“Nothing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans”.1
In Arkansas, federal and state employers are bound by mandatory veteran’s preference laws, though there is no method for private employers to provide veterans preference between equally qualified candidates. The Arkansas Society for Human Resource Management (ARSHRM) designed language for Act 598 to legalize veteran’s preference in the private sector on a voluntary basis for the employer.
Key concepts about Act 5982:
- Veterans experience a higher unemployment rate than civilians, and with two wars winding down more active duty veterans will be transitioning into civilian employment over the next several years.
- The Act provides private employers with a more compliant method of including veterans in their hiring practices.
- Private employers are not required to participate, and can elect whether the preference applies to hiring, promotion, or a reduction in force. Also, the Act does not require recordkeeping or justification of employment decisions.
- Act 598 provides an easy standard for determining eligibility: if the veteran has a DD214 (Certificate of Release or Discharge from Active Duty), he/she is eligible for preference.
- The Act makes it easier for employers to tap in to the market of high tech military job skills, and apply for tax credits available for hiring veterans.
- The ADWS Registry will drive quality, disciplined candidates to area employers.
Questions and Answers about Act 598
Why is Act 598 necessary?
As of now, a private employer could offer preference to a veteran, but few would be comfortable doing so because the EEOC has said there is the potential for a disparate impact claim. However, the EEOC has also said that there is a carve-out within Title VII for rights provided to veterans by state law...an example of that is the mandatory veterans preference law for State employers. When it comes to private employers, only two states in the U.S. take advantage of this exception...Washington and Minnesota.
How does Act 598 benefit employers?
The goal of this legislation is to encourage more private employers to step up and offer preference...and to give them a layer of protection and confidence in their employment decisions that favor veterans. The Act does not create a mandate of any kind or require the employer to change current practices. However, it does specify that participating employers maintain a written preference policy, and that the preference must be applied between equally qualified candidates. The employer is also free to decide if the preference applies to the employment practices of hiring, promotion, or a reduction in force.
How does Act 598 benefit the Veteran community?
The Act creates a registry of employers in Arkansas that decide to offer Veterans Preference in their organization. The Arkansas Department of Workforce Services would maintain this registry, and that tool would be used by Veteran specialists (LVERs) working throughout all the ADWS regional offices in Arkansas. With the use of this registry, a veteran can walk into any of these offices in Arkansas and be referred to private employers nearby who offer preference. The reverse is also true...an employer looking for a unique skill found within the military community (mapping, defense technology, aviation) could also use the ADWS to locate quality candidates.
As an HR Manager, how will I know if a veteran qualifies?
The Act is designed to be user friendly for employers. HR managers are not always familiar with military language and/or service requirements, so the Act stipulates that the veteran will submit a DD214 as proof that they are eligible for preference. If the candidate provides the DD214, they are eligible. For a veteran to receive a DD214, they must meet the definition of veteran as found in the U.S. Code, and that exact language is mirrored in the Act. If a reserve member is never called to active duty, except for training, they would not receive at DD214 upon discharge. As a result, they would not be eligible for preference even in Federal employment. By requiring the DD214, it is unlikely that the employer would be in the position of verifying a person's eligibility, but if there is uncertainty, they can circle back to the Veterans specialist with ADWS for clarification.
The end result is a new process that benefits employers and veterans, without the burdensome mandates and record keeping requirements that employers often deal with when navigating State and Federal regulations.
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