Hiring and Employment of Qualified Veterans

Jul 15, 2016

The U.S. Department of Labor recently announced that more than 500,000 veterans have been hired through the U.S. Chamber of Commerce’s Hiring Our Heroes program.

As part of the announcement, Secretary of Labor Tom Perez discussed efforts to create employment opportunities for veterans, claiming it has become an “all hands on deck” enterprise. That is good news, as it is estimated that more than 2 million veterans have returned from Iraq and Afghanistan and veteran unemployment rates are around twice the national average.

Economic incentives and favorable legal treatment has helped this hiring initiative. Economic incentives to hire returning service members include the Returning Heroes tax credits — with a maximum tax credit of $5,600 per veteran hired — and the Wounded Warriors tax credit — offering businesses that hire veterans with service disabilities a maximum tax credit of $9,600 per veteran.

There are several legal issues of which employers should be mindful in the context of hiring and employing returning service members. Failing to abide by the law could expose employers to fines, civil litigation and bad publicity arising from allegations of improper workplace practices concerning veterans.

Federal and Iowa law prohibit discrimination based on military service. Returning veterans often are perceived as having, and may indeed have, different education and experiences than other applicants. However, employers should not incorrectly assume that long periods of military service necessarily translate into a lack of private-sector skills, including some perceived inability to adjust to a corporate culture.

If such perceptions affect your hiring decisions, your company may lose a discrimination lawsuit.

Also remember that the Uniformed Services Employment and Re-employment Act of 1994 (USERRA) requires employers to re-employ returning service members with the same seniority, status and pay. If the returning service member cannot qualify for the same position he or she held before their tour of duty, the employer must provide alternative re-employment positions.

Employers also must make reasonable efforts to enable returning service members to refresh or upgrade their skills to help them qualify for re-employment. Such accommodations rarely are available for other categories of employees following long absences from the workplace, even under the Americans with Disabilities Act.

Likewise, in Iowa, a qualified veteran employed by a public employer is entitled to preference in appointment and employment over other applicants of no greater qualifications, and only can be terminated from his or her job for incompetence or misconduct following a pre-discharge hearing.

Private employers have been hesitant to favor veterans because of provisions of the Civil Rights Act of 1964 that prohibits discrimination in hiring. An exception in the law, however, allows veterans preferences if authorized under state or local law.

Since 2011, at least 18 states passed statutes allowing private employers to give preference in hiring to honorably discharged veterans. While private employers in Iowa are not required by law to provide this preference, they may do so voluntarily.

It is estimated nearly 45 percent of the returning veterans from Iraq and Afghanistan are seeking compensation for service-related injuries. Many of these physical injuries or mental impairments likely qualify as disabilities under federal and Iowa law and must be reasonably accommodated.

Meet with the employee and discuss any restrictions and potential reasonable accommodations that allow the employee to perform his or her essential job functions. As in any accommodation case, speak with the employee on a regular basis just to check in, not just when there is an incident or issue to be addressed.

Also remember that the Family and Medical Leave Act provides certain leave for a serious medical condition that was incurred on active duty, in addition to caregiver leave for families of injured or ill military members.

Finally, employers should be conscious of how personal comments or communications might be construed.

Dakota Meyer, the first living Marine to receive the Medal of Honor since the Vietnam War, sued his private employer in Texas in 2011 for defamation and wrongful termination. Meyer alleged that his supervisor made comments belittling his service and portraying him as unstable and a problem drinker.

The lawsuit apparently was a public relations disaster for his former employer. Harassment of service members or former service members due to their military service also is illegal under USERRA.

Given their military training, veterans often have an innate respect for procedure and exhibit extraordinary leadership skills. By giving equal employment opportunities to our veterans, employers can demonstrate the appreciation that returning service members deserve.

If you have questions regarding hiring veterans, please contact Wilford H. Stone at Lynch Dallas, P.C. at wstone@lynchdallas.com or 319-365-9101.

Category: Employment Law

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