USERRA is the law designed to protect military service personnel. The regulations that govern layoffs say:

Sec.  1002.42  What rights does an employee have under USERRA if he or she is on layoff, on strike, or on a leave of absence?

    (a) If an employee is laid off with recall rights, on strike, or on a leave of absence, he or she is an employee for purposes of USERRA. If the employee is on layoff and begins service in the uniformed services, or is laid off while performing service, he or she may be entitled to reemployment on return if the employer would have recalled the employee to employment during the period of service. Similar principles apply if the employee is on strike or on a leave of absence from work when he or she begins a period of service in the uniformed services.

    (b) If the employee is sent a recall notice during a period of service in the uniformed services and cannot resume the position of employment because of the service, he or she still remains an employee for purposes of the Act. Therefore, if the employee is otherwise eligible, he or she is entitled to reemployment following the conclusion of the period of service even if he or she did not respond to the recall notice.

    (c) If the employee is laid off before or during service in the uniformed services, and the employer would not have recalled him or her during that period of service, the employee is not entitled to reemployment following the period of service simply because he or she is a covered employee. Reemployment rights under USERRA cannot put the employee in a better position than if he or she had remained in the civilian employment position.

So, if an employee is laid off while on military leave, or if the job you had was eliminated altogether, they still may have a right to re-employment. That’s because of the escalator theory. They are entitled to keep seniority while away. So, if they hadn’t been called to duty, there’s a possibility that they could’ve “bumped” another employee with less seniority out of the way of an open job. Or, maybe they could’ve found another, different job with the employer.

Generally, they can’t be laid off simply because there were advances in technology or changes in the employer’s methods while you were on active duty. The employer must make reasonable efforts to retrain a serviceman on the new technology or processes.

If an employer doesn’t make job-related decisions based on seniority, and they would’ve been laid off even if not on military leave, then there is no protection. A good example of is when an employer makes a reduction in force (RIF) such as when it shuts down all or part of its operations.

Similarly, if workers are laid off with the expectation that they’ll be rehired or “recalled,” then, absent seniority and bumping rights, it’s possible that they’ll be rehired to a laid-off position when they return from service. USERRA isn’t meant to put servicemen (and women) into a better position than they would’ve enjoyed if not called up. Rather, it’s just supposed to make sure they’re treated fairly while away.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a revised publication addressing veterans with disabilities and the Americans with Disabilities Act (ADA). The revised guide reflects changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.] 

As large numbers of veterans return from service in Iraq and Afghanistan it is important for employers to be prepared.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

President Obama recently signed into law the “VOW to Hire Heroes Act” (H.R.674), a law that provides tax credits for employers who hire unemployed veterans and veterans with service-related disabilities. The new law allows a company to claim a tax credit of up to $2,400 if it hires veterans who have been looking for work for at least one month. The maximum credit is increased to $5,600 for hiring veterans who have been searching for work for at least six months. Additionally, employers may be granted a $9,600 tax credit for hiring out-of-work veterans with service-related disabilities.

The new legislation also amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”)—which was enacted to prohibit civilian employers from discriminating against employees engaged in military service—to recognize claims of “hostile work environment” on account of an individual’s military status. The law states that employees who perform military service “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of that service. However, courts had previously rejected the notion that the statute creates a cause of action for “hostile work environment” harassment against military service members. By clarifying that “benefit of employment” includes the “terms, conditions, or privileges of employment,” the new legislation brings the USERRA in line with Title VII and the Americans with Disabilities Act, both of which include the phrase “conditions…of employment.”

EEOC Approves Draft of Rule Amending Age Discrimination Regulations The Equal Employment Opportunity Commission (“EEOC”) has approved a draft final rule amending its Age Discrimination in Employment Act (“ADEA”) regulations in light of U.S. Supreme Court decisions addressing disparate impact claims and the “reasonable factor other than age” (“RFOA”) defense.

The proposed rule is based on the EEOC’s analysis of Smith v. City of Jackson (2005) 544 U.S. 228 (2005) (holding that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a reasonable factor other than age) and Meacham v. Knolls Atomic Power Lab. (2008) 128 S. Ct. 2395 (holding that the employer bears the burden of proving the RFOA defense).

Under the proposed rule, a “reasonable” factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances. The rule explains that whether a particular employment practice is based on RFOA turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts. According to the EEOC, this standard is lower than Title VII’s business-necessity test but higher than the Equal Pay Act’s “any other factor” test. The standard is intended to represent a balanced approach that preserves an employer’s right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities.

To assess whether an employment practice is based on RFOA, the proposed rule provides a non-exhaustive list of factors to be considered:

• whether the employment practice and the manner of its implementation are common business practices;
• the extent to which the factor is related to the employer’s stated business goals;
• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
• the existence of a lesser discriminatory alternative and the reasons why the employer selected the option it did.

The proposed rule also emphasizes that in order for the RFOA defense to apply, the challenged practice must be based on an objective, non age-related factor (e.g., salary, seniority, etc.).

The EEOC’s final draft regulations now go to the White House Office of Management and Budget for a review period that takes approximately 90 days. If the draft regulations are approved, they will return to the EEOC for a final vote before taking effect.

To learn more go to http://www.whitehouse.gov/blog/2011/11/21/president-obama-hire-veteran.

Article courtesy of Pettit Kohn (www.pettitkohn.com).

The Vietnam Era Veterans’ Readjustment Act of 1972, 38 USC §4212 (“VEVRAA”), requires federal contractors and subcontractors covered by VEVRAA’s affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans. VEVRAA also requires federal contractors and subcontractors to report the number of new hires during the reporting period who are qualified covered veterans.

The report required is either the VETS-100 or VETS-100A report.

                        The VETS-100 report is required of contractors and subcontractors that have federal contracts of least $25,000 entered into prior to December 1, 2003.

                        The VETS-100A report is required of contractors and subcontractors that have federal contracts of at least $100,000 entered into on or after December 1, 2003.

For both reports an employer uses employment data from any one payroll period in July or August of the current year. The report can be filed online. The VETS100-100A Federal Contract Reporting website, which includes instructions, answers to frequently asked questions, and the report form, is located at http://www.dol.gov/vets/programs/fcp/main.htm.

Normally, the requirement is for contractors submit to this report by September 30. However, because DOL changed the report and that changed form was not ready for use in the normal filing timeline, for 2011 only the deadline for submitting the VETS-100 or VETS-100A report is December 30, 2011. The ollowing message is posted on the DOL/VETS website:

“Contractors may now submit their VETS100 and/or VETS100A reports using the VETS100 reporting application for the 2011 filing cycle. Contractors must use the 2011 form provided below (see Forms Section).

While the filing cycle timeframe has changed, the timeframe for information used to complete a VETS100/100A report (known as the reporting period) will still remain the same. Question 16 in the FAQs provides more information about the reporting period.

Contractors will have up to 60 days to submit their report(s) from November 1, 2011 to December 30, 2011. Reports will not be accepted for the 2011 filing cycle after December 30, 2011.”

Timely filing of the VETS100 and/or VETS100A report is critical, as the DOL makes clear: “Federal contracting agencies are prohibited from obligating or expending funds to enter into a contract covered by VEVRAA with a contractor from which a VETS-100 or VETS-100A Report was required with respect to previous fiscal year if such contractor did not submit such report.”

Remember that there are many other labor, employment and benefit issues related to veterans, such as various veteran-focused employment initiatives and military leave under USERRA and state law.

Thanks to the Bullard Law Firm for this memo!

On March 1, 2011, the U.S. Supreme Court unanimously held in Staub v. Proctor Hospital (.pdf) that an employer can, in certain circumstances, be held liable for employment discrimination based upon the bias of a supervisor who influenced, but did not make, the ultimate employment decision.  The Court struck down a narrow version of this so-called “cat’s paw” argument, under which the employer could be held liable only if the biased supervisor exerted a “singular influence” over the ultimate employment decision.  Unfortunately, the Court’s decision provides little guidance for employers as to what steps they can take to avoid liability for “cat’s paw” claims.

Background

Vincent Staub worked for Proctor Hospital as an angiography technician until his termination in 2004.  During his employment, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full-time for two to three weeks per year.  According to Staub, both his supervisor, Janice Mulally, and Mulally’s supervisor, Michael Korenchuk, were hostile to these military obligations.  Staub claimed that Mulally was actively seeking to get rid of him, and that Korenchuk was aware of her efforts.  In January 2004, Mulally issued a disciplinary directive to Staub that required him to report to Mulally or Korenchuk when he had no patients or when the angio cases were completed.  Around April 2004, Korenchuk reported to Linda Buck, Proctor’s vice president of human resources, that Staub left his desk without informing a supervisor in violation of the disciplinary directive.  Buck relied on the accusation and, after reviewing Staub’s personnel file, decided to fire him.

Staub filed a grievance challenging his termination, claiming that Mulally fabricated the allegations that had resulted in the disciplinary directive because of her hostility to his military obligations.  After discussing the matter with another personnel officer, and without conferring with Mulally, Buck upheld her termination decision.

Staub subsequently sued Proctor Hospital under the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), claiming that his discharge was motivated by hostility to his military obligations.  Staub did not argue that Buck harbored any hostility to his military obligations, but that Mulally and Korenchuk’s hostility influenced Buck’s ultimate employment decision.  A jury found in favor of Staub, finding that his military status was a motivating factor in the decision to discharge him.  However, the Seventh Circuit Court of Appeals reversed the jury verdict, holding that Staub’s claim could not succeed unless the biased supervisor exercised such a “singular influence” over the decisionmaker that the decision to terminate was the product of “blind reliance.”  Because Buck took other factors into account in making the termination decision, the Seventh Circuit held that Proctor Hospital was not liable.

The Court’s Ruling

The Supreme Court unanimously reversed the Seventh Circuit’s decision.  In a majority opinion joined by six Justices, Justice Scalia wrote that the Seventh Circuit’s narrow view of the “cat’s paw” theory “would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.”  Thus, the Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

In a separate concurring opinion joined by Justices Alito and Thomas, Justice Alito wrote that an employer should not be held liable “where the officer with formal decision making responsibility, having been alerted to the possibility that adverse information may be tainted, undertakes a reasonable investigation and finds insufficient evidence to dispute the accuracy of that information.”  The majority, however, declined to adopt a hard-and-fast rule that the decisionmaker’s independent investigation and rejection of the employee’s allegations of discriminatory animus shielded the employer from liability.  While not foreclosing the possibility that such an investigation could shield an employer from liability, majority observed that even with such an investigation, the biased adverse action could remain a causal factor in the dismissal if the decisionmaker took the biased action into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

Insights for Employers

This case is a clear victory for plaintiffs and plaintiffs’ attorneys, particularly in jurisdictions such as the Seventh Circuit (which encompasses Illinois, Indiana and Wisconsin) that had previously adopted more limited versions of the “cat’s paw” theory.  While the case addresses a claim under USERRA, the Court’s decision makes it clear that the same analysis is likely to apply under nearly all federal laws prohibiting discrimination and retaliation in employment.

In light of the Court’s opinion, it is clear that having HR or a higher-level manager review an employment decision will not necessarily absolve an employer of liability for the bias of a subordinate.  Nevertheless, this case makes meaningful review of employment decisions by HR and management even more vital, as the best way to avoid a lawsuit is to ensure that supervisors’ recommendations are well-supported and that questionable actions are reversed or postponed until they can be properly supported.  Further, it is now all the more important to ensure that even first-line supervisors receive effective training regarding equal employment laws and how to properly document and support employment decisions. 

Article courtesy of Worklaw Network firm Franczek Radelet.