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Happy Veteran's Day
By: Donald Berner

Today is a great day to remember the sacrifices made by our veterans.  Stop and take a moment to thank a veteran for their service to our country.  The freedoms we all enjoy on a daily basis are provided by those who are currently serving and those that have served in the past.  For employers, Veteran's Day is a great time to reflect on your employment policies and practices to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).  For more reading on the topic check out Department of Labor Fact Sheet on USERRA located here

Happy Memorial Day
By: Donald Berner

Memorial Day is rapidly approaching.  Many of you may have plans to take a few days off and enjoy the official start to the summer vacation season.  Popular escapes include a wide variety of outdoor activities like camping and lake trips.  For those of you with kids playing sports, Memorial Day is also a popular time for tournaments.  With all of these recreational activities on our minds, let's not lose sight of the purpose for the Memorial Day holiday.  Memorial Day was originally established as a day of remembrance for those who died in service to the nation (read more here). 

In this spirit, it is a good time for employers to consider their obligations under USERRA, the federal law that protects returning service members as they re-enter the workforce following their military service.  USERRA protects veterans from discriminatory treatment and provides a variety of re-employment related protections.  For a quick review check out this summary of USERRA's protections.  The DOL has published a lengthy handbook related to USERRA, which can be found here.

No matter what your tradition, have a great and safe holiday weekend.

EEOC Issues Guidance to Employers about Disabled Veterans
By: Boyd Byers

Three million veterans have returned from military service over the past decade, and another one million are expected to return to civilian life during the next five years because of the anticipated drawdown of operations in the Middle East.  In recent years, the percentage of veterans who report having service-connected disabilities has risen.  About twenty-five percent of recent veterans report having a service-connected disability, as compared to about thirteen percent of all veterans, according to the EEOC.                                                 

The EEOC recently released new guidance explaining how the 2008 changes to the Americans with Disabilities Act affect employment of veterans with disabilities.  One of the guides is for employers; the other is for veterans.  “Veterans and the Americans with Disabilities Act: A Guide for Employers” explains how protections for veterans with disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities.  You can link to this guidance by clicking here
A Salute to our Veterans
By: Donald Berner

Happy Veteran's Day to all those who served.  For employers, Veteran's Day is a great time to reflect on your employment policies and practices to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The basic gist is that individuals returning to an employer after engaging in military service are entitled to reemployment as if the individual had never left employment.  In addition, USERRA provides those individuals with some protection of their benefits and compensation levels during this time of military leave.  

For more reading on the topic check out this Department of Labor Fact Sheet on USERRA issues.

The Monkey, the Cat, and the Army Reservist
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if a supervisor performs an act motivated by [discriminatory] 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 ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

In this case, Vincent Staub alleged he was fired because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub presented evidence that his two immediate supervisors had an anti-military bias, and that they in turn had convinced the human resources manager to fire him. Staub argued that even though the HR manager, who actually made the decision, was not herself biased, the company could still be held liable for discrimination because she fired Staub based on information the supervisors reported to HR and put in Staub’s personnel file.  

The      Continue Reading...

A Veteran's Day Salute
By: Donald Berner

In the spirit of Veteran’s Day, we thought a brief summary of the Uniformed Services Employment and Reemployment Rights Act, or USERRA for short, would be appropriate.

USERRA protects employees who serve in the uniformed services, which include the active and reserve components of the various branches of the military and national guard.  USERRA’s protections come in two forms.  First, employers are prohibited from discriminating against an employee on the basis of his or her uniformed service.  In other words, an employer cannot discharge, refuse to hire, or otherwise treat an employee negatively because he or she has served, is serving, or will serve in the uniformed services. 
Second, for employees who leave their employment for uniformed service, USERRA requires that they be reemployed promptly upon their return from uniformed service.  Under what is known as the “escalator principle,” the employee is entitled to reemployment in the position in which he or she would have been employed had he or she not left for military service.  In a nutshell, the employee steps back into the employment relationship as if he or she had not left.  Where a promotion is reasonably certain to have occurred, such as a change in paygrade based on years of service, the employer must place the returning service member in the higher or escalator position.  If the employee is not qualified for      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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