To Serve and Protect: Discrimination Against Veterans In Employment is Prohibited

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On the last Monday in May, Americans celebrate Memorial Day to commemorate all the men and women who have died in military service to the US. But what about those who return from a military tour... and join, or re-join, the workforce. The federal government through Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, for this class of individuals to protect their right to work and to return to work.

USERRA prohibits discrimination against employees and potential employees based on their military service. It also imposes obligations on employers with respect to employees returning to work after a military tour of duty. The most unique characteristics of USERRA make it very different from other employment laws and civil rights law. Consider the following:   

  1. No Employer Bias: courts universally construe USERRA in favor of veterans, on the other hand, many with experience in the field will agree that most courts, especially the 11th Circuit and those within its jurisdiction (Georgia included) generally construe other employment related laws in favor of the employer.
  2. No Statute Of Limitations: USERRA has no statute of limitations for claims that accrued after October 10, 2008 and, in some cases, October 10, 2004. Other employment-related statutes have strict deadlines during which a claim must be brought such as Title VII and the ADA - one-hundred and eighty (180) days, the EPA - two (2) years, etc.
  3. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size whereas laws like Title VII require a minimum of 15 employees, the ADEA requires 20, FMLA requires at least 75 employees within a geographic location
  4. No Termination Without Cause: USERRA creates a “for cause” termination standard for employees who return to work after one month or more of military service.  If an employee’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be terminated without cause for up to six (6) months following his or her return to work.  And employees returning from more than one-hundred and eighty (180) days of service are afforded this protection from termination for a full year.  This is most relevant to states like Georgia where employees are terminable “at will” meaning that no cause for termination is required.

Note that in addition to USERRA, veterans may be protected under other employment statutes. For instance, an injury sustained during a military tour might make that individual a person with a disability and entitled to protections under the ADA. 

Happy Memorial Day!

How Long Is Too Long: Leave of Absence Under the ADA

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Can finite leave of absence of more than one month can be a reasonable accommodation?

Federal circuit courts have rendered conflicting decisions regarding how much leave is reasonable under the Americans with Disabilities Act ("ADA"). Although given the opportunity to settle the dispute, earlier this month the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA. 

The Seventh Circuit had issued two decisions holding that even if the employee had a disability and an essential requirement of the job was impaired by the disability, the employee was not a qualified individual entitled to ADA protections on the reasoning that the accommodation sought (a multi-month leave) would not help the employee do the job, but would keep the employee from performing job functions altogether.

Ultimately the Seventh Circuit found that while the ADA may require brief periods of medical leave, such as days or even weeks, multiple month long periods of leave are not required under the ADA. The Court stated: “…not working is not a means to perform the job’s essential functions…”.

The Eleventh Circuit (in which the State of Georgia is located) is of the same opinion.

While it seems all appeals courts, and even the Equal Employment Opportunity Commission (“EEOC”), agree that indefinite leave is never a requirement, the EEOC disagrees with the Courts in that it has stated that placing a limit on the amount of disability leave to which an employee is entitled is a clear violation of the ADA.

Given the EEOC’s opinion on the issue, Georgia employers are not advised to take the position of rigidity with regards to how much leave is reasonable. Rather, employers are encouraged engage in the interactive process, consider each case individually, and err on the side of caution until further notice from SCOTUS.

Protected Status + Adverse Employment Action = Discrimination?

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”
  • asked another to “manage the ladies in the office.” 
  • was “standoffish" with female employees
  • treated female employees differently than male employees
  • would come into work in the morning and “go straight to his office.."
  • "...wouldn’t speak to any of [the female employees].”
  • stated several times "that he would never put a woman in a management position"

The Court found this evidence is to be "sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.”"

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.

Multi-Million Dollar Awards for SEC Whistleblowers

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The Securities and Exchange Commission announced on March 19, 2018, its highest-ever Dodd-Frank whistleblower awards:

- two whistleblowers shared a nearly $50 million award

- a single whistleblower received more than $33 million

These awards unseated the previous record high award of $30 million in 2014.

Monetary awards are available to whistleblowers who voluntarily provide the SEC with original, timely, credible and significant information that enables it to pursue and remedy serious violations that might otherwise go unnoticed. The information must result in a successful enforcement action.

The SEC has awarded more than $262 million to 53 whistleblowers since issuing its first award in 2012.  Whistleblower awards can range from 10 percent to 30 percent of the money collected when the monetary sanctions exceed $1 million. Also, whistleblowers can report jointly under the program and share an award.

By law, the SEC protects the confidentiality of whistleblowers and does not disclose information that might directly or indirectly reveal a whistleblower’s identity. Should a whistleblower's identity become revealed through whatever means, the SEC and Dodd Frank include provisions to protect a whistleblowing employee from retaliation by an employer. Courts have enforced whistleblower protection against retaliation through the award of significant back pay, front pay and litigation costs and expenses.

Myths In Employment Civil Rights Litigation: Odds

Myth 6. Plaintiffs have high odds of success and win large awards.

Although media coverage gives that impression, we find that some 36 percent of plaintiffs have their cases dismissed or thrown out on a motion for summary judgment and 50 percent of plaintiffs receive settlements early on, with an average settlement of $30,000. Of those cases that go to trial (6 percent), only one-third end with a win for the plaintiff.

More significantly, we find that plaintiffs often pay a high personal cost for their involvement in discrimination lawsuits. Beginning in the workplace, once they start to raise the possibility that they were discriminated against and certainly if they file a charge, they face ostracism from management and even co-workers...

SOURCE: http://www.abajournal.com/magazine/article/myths_show_the_harsh_realities_of_civil_rights_litigation/P1