June 8, 2017
Roy Maurer | SHRM
Private-sector California employers might soon be able to establish a voluntary preference for hiring military veterans regardless of when the veterans served, thanks to a bill that recently passed the state assembly.
The veterans' hiring preference currently in use is limited to Vietnam-era veterans and only immunizes employers from gender discrimination claims.
AB 353 passed by a unanimous, bipartisan vote of 74-0 and has been referred to the state senate. The legislation, introduced by Assemblyman Randy Voepel, R-Santee, was co-sponsored by the Society for Human Resource Management (SHRM) and the California State Council of SHRM.
"This bill corrects an outdated law, which only allows for a business to create a preference
for Vietnam War era veterans," Voepel said. "While the original legislation was relevant when first adopted, the existing law is now lacking. My bill … ensures that, if they desire, employers can give preference to veterans who have served [in] Iraq, Afghanistan and other conflicts."
Limiting hiring preference to Vietnam-era veterans "forsakes the entire new generation of warriors transitioning out of the military today, the post Sept. 11 veterans," said Jean South, CEO of Hire Served, which works with small and medium-size businesses to help recruit military talent. "Statistically, the unemployment rate for Vietnam-era veterans has been lower than that of the post-Sept. 11 era veterans, whose unemployment rate has only recently come into alignment with the rest of the country. This is largely due to the challenge veterans face translating the value their military service brings to the private sector to find meaningful post-service careers."
There are just under 2 million veterans residing in the state, the largest veteran population in the country, according to the California Department of Veterans Affairs.
And "while considerable improvements have been made in the unemployment rate nationally and in California, the unemployment rate for returning veterans in California exceeds the state average, and is even higher for female veterans," said Michael Kalt, an attorney at Wilson Turner Kosmo in San Diego, and the government affairs director for the California State Council of SHRM.
Providing hiring preference to veterans—across all service eras—acknowledges the sacrifices veterans have made, including the first few years of career-building time, South said. "The years during which most people begin their career journey and find their paths are spent in service to the nation; however, most employers don't provide any kind of credit for that service when considering a veteran for a job."
Kalt explained that more employers would like to do just that, but are concerned that by trying to assist returning veterans, they may unintentionally be setting themselves up for a discrimination claim. "Historically, while the EEOC [Equal Employment Opportunity Commission] has identified potential concerns about so-called voluntary veterans preferences, it has generally upheld those enacted pursuant to state law."
AB 353 would prohibit a veterans' preference employment policy from being established or applied for the purpose of discriminating against applicants on the basis of protected characteristics but would hold that the granting of a veterans' preference, in and of itself, would not violate any local or state equal employment opportunity laws, including the California Fair Employment and Housing Act.
"AB 353 would insulate employers who follow its requirements from certain types of discrimination claims, particularly discriminatory impact claims, but would not insulate employers who misuse the preference policy specifically to discriminate against particular groups," Kalt said. "AB 353 strikes an appropriate balance and essentially says that employers who are enacting these policies in good faith and following them appropriately will not be sued, but those who are using the preference policy in a manipulative fashion and as a means to discriminate would not be protected."
Thirty-seven states across the country have enacted similar veterans' preference laws, according to the National Conference of State Legislatures.