Overview: A number of laws on the state and federal level apply to the employment of veterans and workers who perform military service. The Uniformed Services Employment and Reemployment Rights Act (USERRA), as well as its state counterparts, prohibit applicant and employee discrimination and retaliation against employees or applicants based on prior or current military service or an intention to serve in the future. USERRA generally applies to service or the reserves in the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps. Employers also have an obligation under USERRA to accommodate an eligible employee's uniformed services leave request and an obligation to reinstate an eligible employee (with some exceptions) after he or she has served.
A veteran may be protected under federal and state family and medical leave acts if he or she returns from military service and is suffering from a serious health condition. In addition, the Americans with Disabilities Act (ADA) and its state counterparts may offer protection if the veteran suffers from a disability. That means, for example, that an employer cannot refuse to hire a veteran because he or she has PTSD, because he or she was previously diagnosed with PTSD, or because the employer assumes the employee has PTSD.
The Vietnam Era Veteran's Readjustment Act of 1972 (VEVRAA) addresses employment of veterans and ensures that veterans have equal employment opportunity in the workforce. Under VEVRAA, federal contractors and subcontractors are obligated to take positive actions to hire and promote veterans. Such employers are required to report their efforts toward hiring and employing veterans and are obligated to have an affirmative action plan that addresses veteran employment.
All employers should aim to develop policies and practices to eliminate discrimination against veterans and those workers who perform military service. Further, employers should implement hiring practices to encourage the employment of veterans.
Trends: In response to the increased number of veterans returning to the workforce after serving in Iraq and Afghanistan, the Equal Employment Opportunity Commission (EEOC) has issued new guidance with regard to the hiring and employment of veterans. Employers need to understand that some of these veterans are entitled to the protection of the ADA and other state and local laws because they have become disabled in the course of serving in the military. Employers need to understand their obligations to reasonably accommodate such individuals and not discriminate against them when it comes to interviewing and hiring.
Melissa Burdorf, JD, Legal Editor
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On January 28, 2013, the Equal Employment Opportunity Commission (EEOC) released fiscal year 2012 statistics on employment discrimination charges filed with the agency. Retaliation (37,836) was the most frequently filed claim, followed by race discrimination (33,512) and sex discrimination (30,356), which includes sexual harassment and pregnancy discrimination. Retaliation charges remain a top concern for employers and have since 2010, accounting for 38.1% of all charges in 2012.
In order to make sure the goals of the Uniformed Services Employment and Reemployment Rights Act of 1994 are met, employers and their supervisors must be familiar with the law and procedures for reinstating employees who leave their employment to serve in the uniformed services. If an employee has been absent from civilian employment to serve in the uniformed services, the employee will likely be eligible for reemployment and the employer will have reinstatement obligations.
In-depth review of the spectrum of South Dakota employment law requirements HR must follow with respect to USERRA.
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HR guidance on developing policies and practices regarding hiring and accommodating veterans in the workplace.
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