Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

6s wild! 6th Circuit affirms contractual 6 month limitation for employment claims

Between the following two options—a federal statute or a private employment agreement—which wins?

• The federal statute (USERRA), which, at the time, provided for a four-year statute of limitations, and which states that it “supersedes any … contract, agreement, … or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter.”

–or–

• The employment agreement, which provides, “I … agree that any action, claim or suit against [Defendant] arising out of my application for employment, employment, or termination including, but not limited to, claims arising under State or Federal civil rights statutes must be brought within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred. I waive any and all limitation periods to the contrary.”

In Oswald v. BAE Industries (5/16/12) [pdf], the 6th Circuit ruled that the contract trumped USERRA.

After returning from serving with the Marines in Iraq, Jerome Oswald claimed that BAE limited his duties and responsibilities compared to his pre-deployment work, failed to give him a raise, transferred him to a lesser position, and ultimately fired him.

Unfortunately for Oswald, he waited until almost three years after his termination to file suit against BAE. The 6th Circuit concluded that his feet-dragging doomed his lawsuit:

Plaintiff’s employment contract does not eliminate all procedural rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the contractual period of limitations diminished a right under USERRA that was merely procedural, [it] does not override the contractual limitations period on that basis….

Because Plaintiff’s complaint was untimely under the 180-day period in the contract, the district court did not err in granting summary judgment to Defendant….

There are two key takeaways from this case:

1. This case might no longer good law under USERRA. In 2008, the Veterans’ Benefits Improvement Act provided that there “shall be no limit on the period for filing the complaint or claim” under USERRA. If there cannot exist any “limit on the period for filing,” it is unlikely that a contract can impose such a bar.
2. Even if employers no longer can shorten the statutory period to file a claim under USERRA, this case serves as a good reminder that employers can use contractual provisions to shorten the statutory period for host of other claims. In a state like Ohio, which has a six-year limitations period for all discrimination claims except age, the ability to significantly shorten the filing period is a powerful weapon that too few employers deploy.

Do you know? The ADA and reverse discrimination

Earlier this week, the EEOC published Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers. In this guide, the EEOC asks the following question:

May a private employer give preference in hiring to a veteran with a disability over other applicants?

According to the agency, the answer is “yes.” The ADA does not prohibit “affirmative action on behalf of individuals with disabilities. Nothing prohibits an employer from hiring an individual with a disability who is qualified over a (presumably less) qualified applicant without a disability.

If you think about, this statement makes a lot of sense. Title VII prohibits reverse discrimination because it makes no differentiation on the basis of majority or minority status. It merely prohibits discrimination on the basis of race/sex/religion/national origin. The ADA, on the other hand, only protects the disabled. For one to be covered by the ADA, one must meet the specific statutory definition of “disability.”

If this difference was not already clear enough, the ADAAA added a section to the statute expressly stating that the ADA does not protect those who claim discrimination because of a “lack of disability.”

The EEOC’s guide is worth a quick read. It offers some excellent pointers on how to handle the recruiting, hiring, and accommodating of anyone with a disability — whether veterans or civilians.

The “cat’s paw” lives: Supreme Court issues broad victory for employees in Staub v. Proctor Hospital

This morning, the Supreme Court issued its decision in Staub v. Proctor Hospital, which asked whether the “cat’s paw” is a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

Staub is a huge victory for employees. A unanimous opinion written by Justice Scalia whole-heartedly endorsed the “cat’s paw”:

We therefore hold 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.

The Court also declined to immunize employers who undertake their own independent investigation of the circumstances leading to the adverse employment action. Instead, the Court only excuses reliance on the biased report of a supervisor if the employer independently determines that the decision was entirely justified apart from the supervisor’s input:

Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

While the Court limited its holding to USERRA, it pointed out that USERRA’s “motivating factor” causation standard is “very similar to Title VII.” It will be difficult for lower court’s to avoid this broad application of the cat’s paw in Title VII (and likely ADA) cases. The only hold-out will be ADEA cases, which, in light of Gross v. FBL Financial Services, Inc., requires “but for” causation.

I have two initial reactions to this opinion:

1. Staub is a broad, sweeping win for employees, which leaves employers with little protection against the discriminatory animus of those who play no role in the decision making process.
2. The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Staub v. Proctor Hospital [pdf] is available for download directly from the Supreme Court’s website via this link.

[Hat tip: Workplace Prof Blog]

Reading the tea leaves: Staub v. Proctor Hospital and the “Cat’s Paw”

Before we get into the specifics of the Staub case, let’s first discuss the relationship between a cat’s appendage and employment discrimination law. The “cat's paw” derives from a 17th century fable by French poet Jean de la Fontaine. In “The Money and the Cat,” a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another’s bidding. Drawing the parallel between la Fontaine’s fable and discrimination law, one seeks to hold an employer (the cat) liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence (the monkey). As Mike Maslanka put it on his Work Matters blog, the question is what is an employer’s liability “when the guy who pulled the trigger is pure, but the guy who loads the gun is not?”

Thus, the argument in the case is framed like this:

• Employers argue that federal discrimination laws make the employer liable only for the actions of the employee or supervisor who takes the discriminatory action.
• Employees,  however, argue that the is enough that the person with the discriminatory animus (the money) played some role in the process, even if the decision maker (the cat) is completely unaware of the animus.

As for the specifics of the case, Staub brought his claim under USERRA, which, among other things, protects those in military service from discrimination upon their return to employment from active duty. Staub had been a long-time employee of Proctor Hospital before being called upon to serve in Iraq. Many at the hospital were critical of Staub’s military service because of the strain it put on those who had to cover from him in his absence. When the Vice President of HR, who held no hostility towards Staub, terminated him, he sued, claiming that although the decision maker was not personally biased against his military service, she fired him based on the hostility of Staub’s direct supervisors.

The 7th Circuit reversed a jury verdict for Staub, holding:

[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence” over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer…. [W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee’s submission of misinformation to the decision maker.

In other words, under the 7th Circuit’s pronouncement of the cat’s paw, the employer can only be liable if the decision maker is only influenced by the animus of the non-decision makers.

Yesterday, the Supreme Court held oral argument [transcript, in pdf] in this case. It’s hard to read Supreme Court Justices at oral argument. Sometimes they play devil’s advocate, and sometimes they genuinely challenge the attorney. Regardless, I found the following question from Justice Breyer (one the Court’s more liberal justices) to the employer’s attorney to be insightful:

You have A and B, they are both supervisors; in the one case B fires the employee because he is in the Army, and he says it: Ha, ha, that’s why I’m doing it. In the second case he fires the employee … for a perfectly good reason, but A has lied about it. And the reason A lied about it was because she wanted to tell him a lie so B would fire the employee, and her reason is because he’s in the Army. Those two situations, the second seems to me one of … 80 million situations, fact-related, that could arise, and I don’t know why we want a special standard for such a situation. Why not just ask the overall question, was this action an action that was -­ in which the bad motive was a motivating factor. Forget psychoanalysis of A. B is good enough -- or vice versa.

I also found insightful the following exchange between Justices Alito and Kennedy and the employee’s attorney:

   Justice Alito: Even -- even if the employer at that time did every -- made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

   A: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

   Justice Kennedy: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the -- the officer who is in charge, charged with the decision to terminate or not to terminate says: I'm going to have a hearing. You can both have counsel. And you have who, is it -- suppose Buck -- suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?

   A: Yes. Yes.

   Justice Kennedy: That’s sweeping. That's almost an insurer’s liability insofar as the director of employment is concerned…. He has to insure. He has -- he has done everything he can, he has an hearing, and he has almost absolute liability.

Reading the tea leaves, it is likely that the cat’s paw will survive the Supreme Court’s review in a narrow form. I predict that the court will derive a standard that looks to the ultimate decision and the role that the animus of the non-decision maker played in that decision. I also think that the Court will craft an affirmative defense or other means to rebut the inference of the cat’s paw, such as the decision maker's independent investigation of the circumstances leading to the termination.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Evidence of moonlighting and misuse of email system prove fatal to retaliation claim

Rudolph Escher claimed that he was terminated in retaliation for complaints he made about his employer’s designation and accounting of his military leave time, in violation of the Uniformed Services Employment and Reemployment Rights Act. As it turned out, his employer fired him for egregious misuse of its computer system through the use of that system to perform substantial work for the Naval Reserves:

Samuel Long, a human resources specialist, reviewed the e-mails and documents Escher had stored on the server. Long initially discovered more than 3,200 e-mails, from 1999-2005, in more than 240 individually named folders and subfolders. He also discovered files outside the e-mail system containing: 18 PowerPoint Presentations; 75 Word documents; 38 Excel spreadsheets; 12 PDF documents; and 140 miscellaneous documents. Long determined that Escher was working on these e-mails during work hours, and using his BWXT e-mail address as an automatic signature, which invited recipients to respond to it. Long could tell from his review that Escher was spending “an inordinate amount of time by reviewing the e-mails, by replying to the e-mails, by writing paragraph after paragraph in response to different e-mails.”

If you are going to moonlight, best not to do business through your main employer’s computer system. Needless to say, the 6th Circuit upheld the trial court’s dismissal of Escher’s USERRA lawsuit. The case is Escher v. BWXT Y-12, LLC (6th Cir. 8/18/10) [pdf].

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Ohio military family leave law takes effect July 2

Beginning this Friday, July 2, 2010, Ohio employers with 50 or more employees will be required to provide leave for employees who are a spouse or parent of a member of the military who is called to active duty or is injured or hospitalized while serving on active duty.

The law—Ohio Revised Code Chapter 5906—has the following provisions and limitations:

• The employee eligible for leave must be a spouse, parent, or legal custodian of a person who is a member of the uniformed services and who is called into active duty, or who is injured, wounded, or hospitalized while serving on active duty.

• Employees are only eligible for leave if they have been employed for at least 12 consecutive months and for at least 1,250 hours in the 12 months immediately preceding the leave.

• Leave is limited to once per calendar year.

• Employees are entitled to the lesser of 10 work days or 80 work hours.

• It only covers full-time duty in the active military service for periods of longer than 30 days. It does cover training, or the period of time for which a person is absent from employment for an examination to determine fitness for military duty, unless it is contemporaneous with full-time military duty.

• An employee must provide at least 14 days’ notice prior to taking leave, unless the leave is taken because an employee receives notice from a representative of the uniformed services that the injury, wound, or hospitalization is of a critical or life-threatening nature.

• The dates on which an employee takes leave cannot occur more than two weeks prior to, or one week after, the deployment date of the employee’s spouse, child, or ward or former ward.

• The employee cannot have any other leave available, except sick leave or disability leave.

• Employers must continue to provide benefits to employees during the leave period. Employees remain responsible for their pro rata share of costs, if any.

• Upon the completion of the leave, employers must restore the employee to the position the employee held prior to taking that leave or a position with equivalent seniority, benefits, pay, and other terms and conditions of employment.

• An employer may require an employee requesting to use leave to provide certification from the appropriate military authority.

• Retaliation is prohibited.

• Employers cannot require employees to waive their leave rights.

• Employees can sue for injunctive relief and money damages to enforce their rights.

[Hat tip: @CCHWorkDay]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit upholds release of USERRA claim in separation agreement

We employment lawyers love severance agreements. I preach their benefits to my clients for all but the most egregious of for-cause terminations. For some amount of compensation (usually salary and benefit continuation measured in weeks or months), employers can buy off the risk of protracted and expensive litigation. The amount paid in severance will be less than the amount of fees incurred in defending litigation by multiple factors. What a nightmare, then, to have an employee who signed a severance agreement sue you anyway. That is exactly the situation in which IBM found itself in Wysocki v. Intentional Business Machine Corp. (6th Cir. 6/16/10) [pdf].

The facts of Wysocki are relatively simply. After George Wysocki returned from military service in Afghanistan, IBM refused to reinstate him to his pre-leave position. Before Wysocki could assert a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA, the federal statute that guarantees job restoration following a military leave), IBM presented him with a separation agreement, which contained a release of claims. In exchange for $6,000 in severance pay, Wysocki promised not to sue IBM relating to his employment or termination, including claims related to his “veteran status.” Even though Wysocki signed the release, he sued anyway, claiming that USERRA prohibits releases of claims.

This case concerns two specific provisions of USERRA:

• 4302(a), which provides that USERRA will not supersede or nullify any contract or agreement that is more beneficial than rights provided by the statute; and

• 4302(b), which provides that USERRA will supersede any contract or agreement that reduces, limits, or eliminates any right or benefit provided by USERRA.

Wysocki argued that under 4302(b), USERRA superseded the release, because it was a contract that eliminated his rights and benefits under USERRA. The 6th Circuit disagreed:

The Release used clear and unambiguous language and involved a valuable amount of consideration. The Release stated that it covered claims based on “veteran status.” This clear and unambiguous language informed Wysocki that he was waiving his USERRA rights and, in exchange for signing the Release, Wysocki received over $6,000. Under these circumstances, it appears from the record that Wysocki understood that the Release eliminated his USERRA rights, that he signed the Release because he believed that the rights provided in the Release were more beneficial than his USERRA rights and, therefore, that the Release is exempted from the operation of § 4302(b) by § 4302(a).… We also note that Wysocki was encouraged to see a lawyer and had ample time to consider the Release before he signed it. In short, we hold that § 4302 does not invalidate the Release.

As the concurring opinion points out, the enforceability of a waiver of USERRA rights and claims under section 4302 will likely come down to an analysis of four key issues, which you should be considering when drafting an agreement that includes a release of USERRA claims:

1. Does the release unambiguously state an intent to waive USERRA rights? The release in Wysocki used the words “veteran status.” For the sake of clarity, consider mentioning the USERRA statute directly in the release itself.

2. Did the employee receive substantial consideration in return for executing the release?

3. Did the employee sign the release knowingly, voluntarily, and not under duress? As added protection, encourage the employee have an attorney of his or her choice review the release pre-execution.

4. Was the money and other consideration the employee received in exchange for signing the release more beneficial than the USERRA rights he or she waived and released? Note that the majority only required the employee to believe that the consideration was more beneficial than the USERRA rights he was waiving. For an at-will employee, however, I would argue that any consideration paid would be greater than the rights waived, since an employee can be terminated at any time and for any reason.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Right to reinstatement under USERRA for returning military personnel is absolute

In 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan.

USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions:

1. The employee must provide the employer notice that the employee intends to take leave for military service.
2. The cumulative length of the employee's service cannot exceed five years.
3. If the leave exceeded 30 days, the employee makes timely reapplication for employment.
4. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave.
5. The employee's separation from military service was under "honorable conditions."

If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position.

What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements.

Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him.

Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges.

The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes.

It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits.

Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work.

According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim:

It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.

This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts.

Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim.

Department of Labor publishes new FMLA poster for Military Family Leave Amendments

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008. Section 585(a) of that Act amends the FMLA to provide eligible employees working for covered employers new leave rights related to military service. Because of these amendments, the Department of Labor has published an insert to its FMLA poster that all employers should add to their compendium of workplace postings.

Special considerations for employment of veterans with service-connected disabilities

In Ohio, two laws apply to the employment of veterans: the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides reemployment rights to returning veterans, and Ohio's ban on military status discrimination, which goes into effect on March 18. If a returning veteran is injured, though, another law might come into play, the ADA. Earlier today the EEOC published guidance for employers on how to handle veterans with service-connected disabilities under the ADA. The following summarizes the EEOC's key points:

How does USERRA differ from the ADA?

USERRA protects the reemployment rights of those who leave their civilian jobs to serve in the uniformed services. The ADA prohibits employers from discriminating against qualified individuals with disabilities with respect to hiring, promotion, termination, and other terms, conditions, and privileges of employment. The ADA also prohibits disability-based harassment and provides that, absent undue hardship, applicants and employees with disabilities are entitled to reasonable accommodation. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job.

Is a veteran with a service-connected disability automatically protected by the ADA?

No. The impairment must meet the statutory definition of a "disability" under the ADA, meaning a person who (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment, and who otherwise meets the employer's requirements for the job and can perform the job's essential functions with or without reasonable accommodation.

May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a service-connected disability?

Yes, if the employer is asking the applicant voluntarily to self-identify for affirmative action purposes. Otherwise, employers generally may not ask for medical information from applicants prior to making a job offer.

What steps should an employer take if it asks an applicant to self-identify as a "disabled veteran" for affirmative action purposes?

If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously (i) that the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and (ii) the specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the employee to any adverse treatment, and that it will be used only in accordance with the ADA. Any information collected must be kept separate from the application to ensure confidentiality.

May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?

Yes. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability." The law neither prohibits nor requires affirmative action on behalf of disabled individuals. Therefore, an employer may, but is not required to, hire a qualified individual with a disability over a qualified applicant without a disability.

What types of reasonable accommodations may veterans with service-connected disabilities need for the application process or during employment?

Some examples of possible reasonable accommodations to consider include: written materials in accessible formats; recruitment fairs, interviews, tests, and training held in accessible locations; modified equipment or devices; physical modifications to the workplace; permission to work from home; leave for treatment, recuperation, or training related to the disability; modified or part-time work schedules; a job coach; reassignment to a vacant position.

How does an employer know when a veteran with a service-connected disability needs an accommodation?

Usually, the reasonable accommodation process begin with a request by the employee or someone else on his or her behalf. The request does not have to mention the ADA or use the term "reasonable accommodation" and simply can be an indication that the employee needs a change for a reason related to a medical condition. A request for reasonable accommodation is the first step in an informal interactive process between the individual and the employer. That process usually involves determining whether the employee actually has a "disability" Employers should also ask what is needed to do the job.

May an employer ask a veteran with a service-connected disability whether a reasonable accommodation is needed if none has been requested?

It depends. During the application process, an employer may explain what the hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (such as blindness or a missing limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type. Once a veteran with a service-connected disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.

Columbus Dispatch on military status discrimination

This morning's Columbus Dispatch reports on Ohio's ban on military status discrimination, which will go into effect on March 23. For some information on what this law protects, take a look at my January 10 post: Ohio to prohibit discrimination based on "military status". The Dispatch's article quotes me on some the new law's effects:

The courts will eventually decide how to interpret the new law, though it's not hard to guess what some interpretations might be, experts say. For example, gender-based discrimination is illegal, and courts have decided that means that sexual harassment is illegal, said Jonathan Hyman, a labor and employment lawyer with the Cleveland firm of Kohrman, Jackson & Krantz.

"It's not a stretch that harassment because of military status could be illegal," he said. In that interpretation, an employee who is anti-war could violate the law by making fun of an activated military member's service.

Even the most ardent opposition of the Iraq war would be hard pressed to be in favor of discrimination against the men and women who volunteer to serve and defend our country. Nevertheless, by including military status as a protected class in our employment discrimination laws, the claims based on political speech has the potential to be injected into private workplaces like never before. If military status is protected, then in all likelihood, harassment because of military status will be actionable. Heated workplace debates about war policy could turn into discrimination claims. When Ohio's courts are asked to interpret this statute in a harassment context (and trust me, they will be asked), I hope that they seriously consider free speech versus what is truly a hostile environment, and rule accordingly.

Ohio to prohibit discrimination based on "military status"

I try to stay on top of all issues that impact Ohio employers, but this one simply fell beneath my radar. On December 20, Governor Strickland signed into law House Bill 372 – The Ohio Veterans Package.

Of importance to employers, the law, which will go into effect on March 18, 2008, adds "military status" to the list of classes protected from discrimination in employment by Ohio Revised Code chapter 4112. "Military status" means a person's status in "service in the uniformed services," which includes active duty, active duty for training, initial active duty for training, inactive duty for training, full-time national guard duty, and performance of duty or training by a member of the Ohio organized militia, in addition to any period of time a person is absent from work for a fitness for duty exam for such service.

Ohio now joins a handful of other states in which it is illegal to discriminate based on military status. This law does will not affect the rights that employees already enjoy under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Now is as good a time as any to educate your supervisors and managers that "military status" will be joining the list of employment law no-nos in Ohio, alongside race, sex, age, disability, religion, national origin, color, and ancestry.

(Hat tip to John Phillips' Word on Employment Law.)

Jury verdict underscores rights of veterans

A federal jury in Portland, Oregon, returned a $985,000 verdict in favor of a National Guardsman terminated by Target after his return from military duty. The jury found that the employee was fired when he tried to come back to his old job and that it retaliated against him for asking for reinstatement. The evidence at trial was that Target management told the employee that his enlistment following 9/11 "would not be beneficial to his future career," that he was demoted following his return from active duty, and when the National Guard intervened on his behalf to have his previous position restored, Target terminated him. The jury awarded $85,000 in economic damages and $900,000 in punitive damages for the retaliatory termination. It found the demotion, however, lawful.

This verdict highlights the rights held by employees who take military leaves of absence. Military leaves are covered by the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA provides reemployment protection and other benefits for veterans and employees who perform military service. The law applies to all members of the United States military, reserves, and national guard. Under the statute, military service is not only defined as actual active duty, but also inactive duty training. In sum, USERRA requires that all employers must grant military leave for all full-time and part-time employees for up to a period of 5 years, provided the employee provided appropriate documentation for the leave. Employers have no obligation to pay employees during a military leave, and employees have the option to use, but cannot be required to use, accrued paid time off (such as vacation days) during the leave. If a military absence was 90 days or shorter, the employer must restore the employee to his or her former position. If a military absence was 91 days or longer, the employer must restore the employee either to his or her former position if it is still available, or if it is not available, to a job that is equal to the former position in status and pay. Upon an employee’s return from a military leave of absence, the employee must be compensated at the rate of pay he or she would have received had he or she continued working during the period of leave. The employee must also be restored to full participation in benefit plans.

It is a good idea to have a military leave policy so that all supervisors and managers understand the rights and responsibilities under this law.