How Employers Can Honor Veterans

Posted by marykeating on November 11, 2009 under veterans' discrimination | Be the First to Comment

Veterans have long received mixed welcome upon their return home from service.  Many of us remember the Vietnam era veterans’ difficulty in reassimilating, facing as they did receptions ranging from indifference to outright hostility.  These days we give more lip service to honoring the sacrifices of this country’s service members.  But whether we truly support our troops is open to question when such a large portion of our homeless population consists of veterans, and the medical benefits available for their specific needs is often denied.

One way we can, and must, support veterans is in the workplace.  The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) forbids employers from discriminating against individuals because of their service (or application to serve) in the uniformed armed services.  Briefly, the law requires employers to rehire a returning service member into the same job they held, or a job up the ladder that he or she would have held if not for the break in service required by the military.   If the service member needs additional training to meet the requirements of the old or the escalated job, the employer has to provide it.  In addition, an employer may not refuse to hire or promote someone because of his membership in, for example, the National Guard. The reemployment requirements apply to any service member whose cumulative absences are less than five years, with exceptions.

In addition, returning service members with disabilities must be accommodated, if a reasonable accommodation is available.

The law asks service members to give reasonable notice of their being called to duty, and requires them to return promptly to work if they were gone for no more than 30 days.  If they are gone longer, or return disabled, they have more time to notify the employer and claim their old job.  If the absence is up to six months, they have two weeks to return; if more than six months, they have 90 days to notify the employer that they are ready to return to their old job.

This law can pose hardships on the employer.  First of all, it applies to all employers, regardless of size.  So a company of three can be in the position of losing an employee for short or long-term duty, and if the military does not give much warning of deployment, then the employer does not get that warning either.  Upon return, the service member is entitled to the old job back; the replacement may need to be fired.  Second, with the long-running wars in the middle east, return deployments are common.  Sometimes there is very little notice that a person is being called up.  Congress has decided that the burden of the uncertainty is going to be shared by the service member and his family, and the employer who will have to deal with the occasional tours of duty.
Employers have to post USERRA rights notices.  As with other discrimination statutes, retaliation for exercising rights or standing up for other employees’ rights is actionable.

Retaliation for wage complaints

Posted by marykeating on October 19, 2009 under Uncategorized, Wage and hour issues | Be the First to Comment

The Fair Labor Standards Act requires hourly employees to be paid for time worked, and for time during which the employer “suffers or permits” the employee to work. Many disputes arise over the right to payment for time spent putting on protective clothing, reaching the workplace (for example, going through security and walking to the timeclock), and waiting time. Some rules are clear, and others still await court clarification. But today I’m going to discuss the right to be free from retaliation for complaining about a practice that may violate the law.

As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.

This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.

In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.

Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.

Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.