Most employers have been educated, either in the school of hard knocks or by the guidance of their counsel, to manage within the law and avoid employment discrimination—whether as to hiring or active employment. The “protected classifications” of workers under California and federal law are usually easy to spot. For example, with an employee returning from a disability leave, an employer is obviously aware of the disability issues beforehand and has its antennas up to ensure that the return-from-leave process (and any interactive process that needs to occur) is deliberate—perhaps to a fault.
But what happens when the applicant walking through the door, or the employee returning from leave is, say, a seemingly able bodied, twenty-something white male? Unless that applicant/employee walks through the door wearing a military uniform, the employer might not recognize that the applicant/employee, as a military veteran, has “protected class” rights similar to those given to other groups under state and federal equal employment opportunity laws? That is exactly the scenario that will play out in California and elsewhere in the United States over the next few years as one million military veterans, protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) reintegrate into the civilian workforce.
Under USERRA, an employer has to reemploy certain veteran-employees who, during their employment, were called up to active service. An employer violates USERRA when the employee’s military obligations are a “motivating factor” in the decision not to hire him or her.
You can expect increased focus on USERRA as veterans report back from war zones. Indeed, the L.A. Times recently noted that complaints of USERRA violations by veterans have effectively doubled in the twelve years since the United States’ deployment of troops, and particularly called-up reservists and National Guard members, ramped up after 9/11.
So what can an employer do to prepare for this next wave of EEO challenges? Here are a few ideas:
- Make sure that you track your employees if they are reserve members of the Armed Forces, or members of the National Guard, particularly their leaves of absence and particularly if they are deployed to active duty. USERRA requires re-employment even five years after deployment under certain circumstances, so keeping track of such folks is essential.
- With regard to reserve Armed Forces members, members of the National Guard and veterans: be deliberate in your consideration of both the first-time applicant and the employee seeking reemployment, post-deployment, and document your process carefully.
- As with any EEO process, be consistent. Regardless of intent, an inconsistent hiring/rehiring process can be contorted to show (or attempt to show) discrimination.