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.

Congress May Add to Disabled Veterans’ Rights

Posted by marykeating on August 27, 2009 under Discrimination in employment, Pending legislation | Be the First to Comment

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military.  One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule.  Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions.  USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate.  The law applies to virtually all employers, without the typical threshold number of employees.

Still, the number of claims in this region is not huge.  There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim.  One reason could be the difficulty of proving discrimination in hiring.  Proving discrimination at all is seldom easy, but hiring is particularly difficult.  In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination.  In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.

Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service.  The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities.  The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June.  It is before the Senate now.