When Troops Return Home: What the Law Requires from Employers May 3, 2012 Presented by: Susan M. Webman, Esq. [email protected]Fortney & Scott, LLC 1750 K Street, NW, Suite 325 Washington, DC 20006 www.fortneyscott.com Tele: 202-689-1200 / Fax: 202-689-1209 A Division of Thompson Media Group
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
When Troops Return Home: What the Law Requires from Employers
This presentation is to provide information regarding rights and obligations under the USERRA with regard to servicemembers returning to civilian employment. These materials are not intended to provide legal advice.
Employers’ representatives should consult either with their in-house counsel or, as directed, with an experienced employment attorney for legal advice about whether, based on specific facts and circumstances, their company complies with the applicable federal and state laws and regulations.
The employee is entitled to any “benefit of employment” that he or she would have received had the employment not been interrupted to serve in the military, not dependent on short-term performance of work.
Courts interpret the statute to benefit the servicemember and give these terms are given an expansive interpretation. They have been defined to include such benefits as:
Choosing hours;
Holiday pay;
Training;
Overtime opportunities; and
Freedom from an anti-military bias in providing these incidents of employment.
Employer must make “reasonable efforts” to qualify an employee.
Qualified means can perform the job’s “essential tasks.”
If the person cannot become qualified for the escalator job, the person gets a position of equivalent or nearest approximation of status and pay that the person is qualified to perform.
If the employee cannot be qualified for any job after reasonable efforts and without undue hardship, the employer is not required to rehire.
Prompt reemployment in the pre-service position or escalator position, as qualified; OR
If employee no longer qualifies for pre-military job, to qualify the person for nearest escalator job, i.e., by providing training if s/he needs to be retrained or qualified by new training.
Required accommodations for disabled servicemembers.
Disabled servicemembers get extended return period.
“If a supervisor performs an act motivated by anti-military 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.” Staub v. Proctor Hospital - 2011 Supreme Court case.
Not necessary to prove that the official who took the adverse action was “singularly influenced” like a “cat’s paw” by the supervisor with anti-military animus.
Susan M. Webman, who is Of Counsel with FortneyScott, has practiced law for over 25 years. Ms. Webman provides clients with significant experience and expertise in U.S. Department of Labor and labor and employment matters. In particular, Ms. Webman has extensive knowledge of the laws governing veterans’ rights, labor-management matters, including union-related LM-10 and LM-30 reporting obligations, and International Labor Organization and other international labor matters.
Prior to joining FortneyScott, Ms. Webman was the primary legal and policy advisor at the U.S. Department of Labor enforcing labor-management laws related to veterans’ employment and reemployment rights, employee protection programs including labor protections in the transportation industries, select international and International Labor Organization matters and significant work under the Labor-Management Reporting and Disclosure Act, as well as other matters. She was the principal DOL drafter for the Uniformed Services Employment and Reemployment Rights Act (USERRA), coordinated and led the Executive Branch interagency task force and worked with the White House and Congress prior to its enactment.
Ms. Webman has testified before Congress and represented various clients at Congressional hearings. She has had considerable experience in the regulatory process at Department of Labor, from drafting proposed regulations and coordinating constituent and government-wide acceptance of controversial measures to responding to comments and shepherding the final product through the regulatory process. As the Department of Labor’s Counsel for International Affairs and Opinions, she represented the U.S. in educating developing Eastern European countries establishing domestic labor laws. As Director of the U.S. Merit Systems Protection Board’s Office of Appeals Counsel, Ms. Webman provided recommended decisions on federal employment law to the Board. She also served as Counselor to the U.S. Department of Veterans Affairs Capital Asset Realignment and Enhanced Services (CARES) Commission, as advisor to the Chairman and Executive Director in all matters and as a writer and editor of the Commission’s Report to the Secretary of Veterans Affairs.
This presentation is intended solely to provide general information and does not
constitute legal advice. Attendance at the presentation or later review of these printed
materials does not create an attorney-client relationship with the presenter(s). You
should not take any action based upon any information in this presentation without first
consulting legal counsel familiar with your particular circumstances.
Do you have a question that you would
like answered during the Q&A session?
Simply follow the instructions below.
To ask a question, please press *1 on your touchtone phone.
If you are using a speaker phone, please lift the receiver and
then press *1.
If you would like to withdraw your question, press *1.
48
Copyright Consent Information This presentation is a copyrighted document. As the registered attendee, you are hereby granted
permission to copy and distribute this presentation to your colleagues who attend this audio conference. Please list these conference attendees using the form below and fax this page to