United States military service men and women employed in civilian jobs must leave their jobs in response to the call of service to their country. Some of those who return do so after suffering injury or disability. What assurances do they have that their job will be waiting for them upon their return from service?
A number of federal and state laws provide important job protections for veterans, particularly those who become disabled while in service. In addition to ensuring their reemployment upon returning from service, some afforded protections extend to affirmative action allowing the preferential hiring of veterans by covered employers. In addition, the law protects veterans against discriminatory practices in the workplace.
Applicable federal and state law
Federal laws specifically addressing veteran protection from employment discrimination include the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title I of the Americans with Disabilities Act (ADA), the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), the Veterans’ Preference Act, the Veterans’ Recruitment Appointment (VRA), the Veterans’ Employment Opportunity Act (VEOA), and the Family and Medical Leave Act (FMLA). The Florida Uniformed Services Employment and Reemployment Rights Act (FL USERRA) applies to protect military service men and women by affording them leave and employment protections, as well as protection from discrimination
Federal Uniformed Services Employment and Reemployment Rights Act (USERRA)
USERRA protects those who serve in the United States uniformed services, including the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, Army or Air National Guard, and Commissioned Corps of the Public Health Service. Under this law, employers may not discriminate against employees or job applicants on the basis of their military status or duty. USERRA also protects the reemployment rights of individuals who voluntarily or involuntarily leave their civilian employment to serve in the military.
Specifically, the law requires employers to take reasonable efforts to help returning veterans to become qualified for the job they would have held but for their military service. Employers must also make reasonable efforts to accommodate veterans with disabilities, whether service-acquired or not, and if they are not qualified for the job due to a disability, the employer must make reasonable efforts (including providing training or retraining) to help them qualify for an equivalent job with equivalent seniority, status and pay.
Title I of the Americans with Disabilities Act (ADA)
Title I of the Americans with Disabilities Act (ADA) also applies to ban employers from discriminating against military veterans because of a disability. For example, it is illegal for an employer to refuse to hire a veteran because he or she suffers from Post Traumatic Stress Disorder (PTSD), deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, among other disabilities, whether service-connected or not.
Under the ADA, absent undue hardship, job applicants and employees with disabilities are entitled to reasonable accommodations when applying for employment, while performing their jobs, and to enjoy equal benefits and privileges of employment. For more information on the ADA, see the Discrimination on the Basis of Disability blog article.
Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)
The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires that federal contractors with contracts of $100,000 or more take affirmative action to employ and advance qualified disabled veterans. Enforced by the Department of Labor, VEVRAA also requires covered employers to list their job openings with specific employment services and give covered veterans priority in referral to such openings.
Veterans’ Preference Act
Under the Veterans’ Preference Act (VPA), all veterans are entitled to employment preference over others and may be considered for special noncompetitive appointments if eligible.
Veterans’ Recruitment Appointment (VRA)
The Veterans’ Recruitment Appointment (VRA) program allows agencies to appoint eligible veterans without competition.
Veterans’ Employment Opportunity Act (VEOA)
The Veterans’ Employment Opportunity Act (VEOA) allows veterans to apply for jobs that are only open to “status” candidates, which means “current competitive service employees.” Under VEOA, employers can appoint eligible applicants who have a severe physical, psychological, or intellectual disability.
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) became effective in 1993 to help balance workplace demands with specific family and medical needs of the eligible employees of covered employers. Provisions geared to protect military families were enacted in 2008.
Specifically, the law provides for leave for military exigency leave, and military caregiver leave. Qualifying exigency leave allows the employee to take up to a total of 12 workweeks of FMLA leave for qualifying exigencies, such as making different day care arrangements for the military member’s children or attending official military ceremonies as their family member prepares to deploy. In addition, military caregiver leave allows an eligible employee to take up to a total of 26 workweeks of unpaid leave during a single 12-month period to take care of a military relative if he or she has a qualifying serious injury or illness. For additional information on FMLA see the Employment Family and Medical Leave (Part 1) and (Part 2) blog articles.
Florida Uniformed Services Employment and Reemployment Rights Act (FL USERRA)
Florida’s USERRA protects private and public sector employees who serve in the Florida National Guard and are required to report to active state duty, and employees who have an obligation as members of a reserve component of the United States armed forces. Upon the conclusion of their service, the employer must fully reinstate these employees with pay. These employees cannot be terminated without cause for a full year after their reinstatement date.
There are additional benefits to Florida National Guard service members under Florida law. For example, employees who are receiving COBRA health insurance coverage upon becoming active have the benefit of tolling the coverage for themselves and their families for an amount equal to the time the employee has served (during which time they are covered by TRICARE, the military health insurance.) Also, state employers must pay public officers and employees who are called to military training exercises their full salary during 17 working days in any one annual period. If called for active military duty, these employees are entitled to pay for the first 30 days of service.
Remedies and Best Practices
Remedies exist under each law to protect an employee or job applicant from discrimination and provide redress for injuries suffered as a result of an employer’s violation. For example, the potential damages for a USERRA violation are significant. Under USERRA, a court may grant an injunction to order an employer to comply with the provisions of the Act and afford the employee the right to be employed or reemployed; it may award damages for lost wages or benefits suffered by reason of the employer’s failure to comply with the Act; and it may require the employer to pay liquidated damages (in the amount of lost wages) for a willful violation, essentially doubling the potential damages for lost wages. A successful plaintiff may also be awarded attorney’s fees and costs.
Therefore, due to the liability associated with the mismanagement of military leave and related discrimination in the workplace, employers should consult with knowledgeable counsel to prevent and manage their legal risk in this area. Employees who believe their employer has violated their rights should consult with legal counsel to assess the level of injury suffered and determine any available redress.
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you with a workplace military leave and/or discrimination compliance situation and offer legal representation, if necessary. Click here to contact an attorney now.