Private Employers Can Choose to Give Preferential Treatment to Veterans Under Illinois’ New Veterans Preference in Private Employment Act

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On July 28, 2015, Illinois Governor, Bruce Rauner, signed House Bill 3122 which created the Veterans Preference in Private Employment Act (“Veterans Preference Act”).  In doing so, Illinois has joined 19 other states that have similar laws, including: Arkansas, Arizona, Florida, Georgia, Iowa, Idaho, Indiana, Kentucky, Maine, Michigan, Minnesota, Montana, North Dakota, Nebraska, Oklahoma, Oregon, South Carolina, Utah, and Washington.  A separate veterans preference law is already in place in Illinois for public employers.

The law, sponsored by Rep. Robert W. Pritchard (R-Hinckley), aims to reduce the unemployment rate for the more than 800,000 veterans in Illinois. “Those that put their lives on the line and serve their country shouldn’t be forgotten when they take off their uniform and seek a job in the private sector,” Rep. Pritchard said. “While many private companies may want to hire veterans for their leadership, job skills and experience, they were cautious of violating laws against discrimination.”  In signing the bill, Governor Rauner echoed Rep. Pritchard’s sentiment and said “I am proud that Illinois is taking the initiative in helping veterans who often times face greater barriers when finding employment.  All of us have a responsibility to ensure that job opportunities are available to those who serve our country.”

SUMMARY OF THE NEW LAW:

Who is a Covered Employer?

A “private employer” is defined as any non-public sole proprietor, corporation, partnership, limited liability company, or other private, non-public entity employing one or more employees within Illinois.

Who is a Covered Veteran?

A “veteran” is defined as an individual who meets one or more of the following:

  1. Has served on active duty with the armed forces of the United States for a period of more than 180 days and was discharged or released from active duty under conditions other than dishonorable;
  1. Was discharged or released from activity duty with the armed forces of the United States because of a service-connected disability; or
  1. Is a member of the Illinois National Guard who has never been deployed but separated under conditions other than dishonorable as noted on the individual’s NGB-22 discharge form.

A private employer may require and rely on the following documents from an applicant or employee to verify their eligibility:

  1. Department of Defense DD214/DD215 forms or their predecessor or successor forms;
  1. NGB-22 discharge form or its predecessor or successor forms (for National Guard members); or
  1. A U.S. Department of Veterans Affairs award letter (for those claiming a service-related disability).

What Does the Law Allow?

Under the Veterans Preference Act, a private employer may adopt a veterans’ preference employment policy that permits the employer to provide preferential treatment in hiring, promotion, and/or retention of veterans over other equally qualified applicants or employees without running afoul of the Illinois Human Rights Act.  A private employer may adopt such a policy if the following conditions are met:

  1. The veterans’ preference employment policy is in writing;
  1. The veterans’ preference employment policy is publicly posted by the private employer at the place of employment or on any website maintained by the private employer;
  1. The private employer’s job application informs all applicants of the veterans’ preference employment policy and where the policy may be obtained; and
  1. The private employer applies the veterans’ preference employment policy uniformly for all employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in force.

Prior to the Veterans Preference Act, the Illinois Human Rights Act already permitted employers to give preferential treatment to veterans and their relatives when the employer was required by applicable federal, state or local law or regulation to do so. Now, such preferential treatment can take place not because an employer is mandated by law to provide it, but because the employer has adopted a private policy to do so.

What Should Private Employers Do?

If a private employer is not otherwise mandated by law to provide preferential treatment to eligible veterans but wishes to do so, it can adopt a veterans’ preference employment policy that complies with the Veterans Preference Act requirements.  This will include not just adopting a written policy, but also updating application forms and making the required postings regarding the veterans’ preference employment policy either in hard copy form or on the employer’s website.  Moreover, as with other policies, it is important that the employer take the time to train those managers and supervisors who are responsible for making employment decisions about the new policy so that once implemented, the policy is properly administered and enforced. Finally, employers should institute safeguards with respect to any information or documentation provided by veterans to determine their eligibility for preferential treatment under the employer’s veterans’ preference employment policy so as to protect and secure what may be private personnel or medical information.

Contributor:  Lizbeth V. West, Attorney at Law | Weintraub Tobin