By Thomas M. Dunlap, PHR
On April 4th, 2013, Arkansas Governor Mike Beebe signed Act 598 into law, the Voluntary Veterans Preference Act. This new law allows private sector employers in Arkansas the ability to implement a Veterans Preference practice on a voluntary basis. This legislation was authored by the ARSHRM Government Affairs team, and was the culmination of two years of research and planning.
In March of 2011, while at the SHRM Legislative Conference, I had a conversation with David Black, a Seattle based attorney who serves as the State Council Legislative Director for Washington State. He mentioned that his state had just passed a voluntary veterans preference law, and that we should consider doing the same. The idea seemed so simple to me at the time and I immediately asked him for any information he could provide about the new law. From there, I became convinced that this would be immensely popular with the state legislature and the perfect initiative for Arkansas Society of Human Resource Management to pursue. Our General Assembly only meets every other year, so it would be 2013 before we could move on this idea.
The United States is presently emerging from a decade of war, with a resulting drawdown of combat ready forces nearing one million service members by 2017. Veterans are re-entering a difficult civilian job market within a stifled economy, where they must also make the case that their military skills translate into civilian employment. As HR professionals, we are aware of the high unemployment rate within the veteran community, in some cases three times higher than what civilians experience. In Arkansas, service members also face career uncertainty regarding the mission re-assignment of our military installations, such as the 188th Fighter Wing in Ft. Smith. Finally, the looming threat of sequestration and deeper defense spending cuts compound the challenges our veterans will face in the coming years as they readjust to a civilian career.
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”. An example of this exception is the State’s mandatory veterans preference laws for state government, higher education, and school districts.
ARSHRM designed language for an Act to legalize veteran’s preference in the private sector on a voluntary basis for the employer, with a few key considerations. First, the Act is clear that the preference must be applied between equally qualified candidates, and that the employer must have a written preference policy. Second, to determine eligibility and be consistent, the definition of veteran matches that of Title 38 of the U.S. Code, with the inclusion of spouses of deceased and totally disabled veterans. Third, ARSHRM wanted the eventual Act to be easy for employers to administer, so the law does not require employers to establish a point system, ranking structure, or record keeping process.
But that did not seem to be enough. We believed there was a better way to connect unemployed veterans to where the jobs actually were, and that employers would want to promote that they were willing to offer veterans preference. As a result, there is a new shared process between the Arkansas Department of Workforce Services (ADWS) and private employers, to encourage the participation of private employers interested in offering veterans preference. The Act creates a registry of employers, maintained by ADWS, so that job seeking veterans can zero in on organizations in their area that offer preference.
ARSHRM also recruited a local veteran to provide guidance on the bill language, and serve as a liaison between the HR and veteran communities. Marine Cpl. Aaron Mankin of Rogers provided expert leadership to ARSHRM at all steps along the way towards the eventual law. Mankin survived an IED blast near Fallujah, Iraq in 2005, and has endured nearly 60 surgeries in the past 8 years of his recovery. Now serving as a Leadership Fellow for the Iraq and Afghanistan Veterans of America (IAVA), he has advocated from Wall Street to the White House on transition issues that veterans face, and testified with me in the State Capitol as Act 598 made its way through both houses of the legislature.
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.
The Act creates a registry of employers in Arkansas that elect to offer Veterans Preference in their organization. The Arkansas Department of Workforce Services will 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.
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. This provides consistency because it works the same way in Federal employment: if a reserve member is never called to active duty, except for training, they would not receive at DD214 upon discharge and would not be eligible for preference on the Federal level. 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. The new law coincides with strategic priorities for SHRM, and federal agencies such as the Department of Labor and the EEOC. ARSHRM is very appreciative of the efforts and participation of Representative Sue Scott, who sponsored the bill and help guide it through the Arkansas Legislature. “We are making history here”, Cpl. Mankin says of the passing of Act 598. “Arkansas has set a standard of how to "support" the troops that can be easily emulated across the country. Our Veterans volunteered and are proven leaders; they are America's greatest untapped human-capital resource. It makes sense both economically and morally to serve those who have served”. ARSHRM is in total agreement with Cpl. Mankin, and we encourage the State Councils of Tennessee, Mississippi, etc., to enact similar legislation. Please let us know if we can help!
From left: Steve Schulte, Arkansas SHRM GA Director; Randy Thurman, ARSHRM lobbyist; Arkansas Representative Sue Scott (Bill sponsor); Thomas Dunlap, Arkansas SHRM Federal Legislative Director; Michael Ritchey, VFW District All-American Commander; Kelly DeStefano, SPHR, Arkansas SHRM State Director; and Marine Cpl Aaron Mankin with Arkansas Governor Mike Beebe.
Thomas Dunlap, PHR is the HR/Benefits Administrator for Benton County Arkansas, and serves as the Federal Legislative Director for ARSHRM.
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