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Labor: Potential employment issues related to hiring veterans

Federal and state laws such as the ADA and USERRA provide legal protection for returning servicemembers

As of mid-2012, more than 1.6 million veterans had returned from Iraq and Afghanistan. Veteran unemployment rates regularly track at more than twice the national average. Economic incentives to hire these returning service members include the Returning Heroes Tax Credit (which offers businesses a maximum tax credit of $5,600 per veteran hired) and the Wounded Warriors Tax Credit (which offers businesses that hire veterans with service disabilities a maximum tax credit of $9,600 per veteran). The U.S. Chamber of Commerce has a special initiative, “Hiring our Heroes”; the White House has obtained commitments from many of the largest U.S. employers to hire and accommodate returning veterans and their families, and several large job search companies have pledged to offer special assistance to veterans and military spouses with job matching services. This column is meant to address some of the most common workplace issues of which employers should be mindful in the context of hiring and employing returning service members. Failure to abide by these guidelines can expose employers to fines, penalties and civil litigation, as well as bad publicity arising from allegations of improper workplace practices concerning veterans.

Federal and state laws prohibit discrimination based on military service. Returning veterans often are perceived as, and may indeed have, different education and experience than those of other applicants or employees in the same positions. Many return from service with fewer years of traditional education than those they are competing against in a tight economy. Employers may incorrectly assume that long periods of military service translate into a lack of private sector skills and experience, including a perceived inability to adjust to corporate culture. If these perceptions color hiring decisions, employers will be exposed to potential discrimination suits.

Federal law also provides some protections for returning veterans who were employed at the time of their initial deployment. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to reemploy returning service members with the same seniority, status and pay, as well as other rights and benefits determined by seniority. If the service member cannot qualify for this position, the employer must provide alternative reemployment positions. Employers also must make reasonable efforts to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. Such reinstatement or accommodation rights are rarely available for other categories of employees following long absences from the workplace.

Both the Americans with Disabilities Act and USERRA require employers to make reasonable efforts to accommodate veterans with disabilities. Nearly 45 percent of the returning veterans from Iraq and Afghanistan are seeking compensation for service-related injuries. Many of the injuries may qualify as disabilities under the law. Service members recovering from injuries received during service or training may have up to two years after completing service to return to their jobs or apply for reemployment. Employers need to carefully plan how, or whether, they are able to accommodate these returning service members and still effectively operate their businesses.

Finally, in this age of free speech and strong feelings about recent military conflicts, employers need to be conscious of how political or personal comments or communications might be construed as being directed at the veteran’s individual capabilities or morals. Dakota Meyer, the first living Marine to receive the Medal of Honor since the Vietnam War, sued his civilian employer for defamation and wrongful termination after his supervisor allegedly made comments belittling his service. One can easily imagine how political discussion in the presence of a returning veteran could feel personal, and create risk.

Given their military training, veterans have an innate respect for procedure, are disciplined, perform well under pressure and exhibit extraordinary leadership skills. Returning veterans offer tangible job benefits and often have positive impact on morale. By giving equal employment opportunities to our veterans, employers can demonstrate the appreciation that returning servicemembers deserve. Good corporate citizenship requires a conscious regard for all employees’ rights; veterans are no different.

Contributing Author

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Heather Sager

Heather M. Sager is a partner in Drinker Biddle's Labor & Employment Practice Group. Heather regularly provides management training seminars and advice and...

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