Do Employment Laws Hurt Rather Than Help Those Who Serve in The Military?

VeteransClose to 48,000 Iraq and Afghanistan veterans are either homeless or are “in federal programs aimed at keeping them off the streets.” (USA Today, January 17-19, 2014). The unemployment rate among veterans who served after 9-11, is 8.6%,  compared to a nation’s overall jobless rate of  6.7%.

One of the factors which may account for this gap is the fear among employers spawned by   the publicity given to post-traumatic stress disorder (PTSD).  Employers worry that if they hire a veteran and that person displays the outbursts of anger sometimes correlated with the disease, the Americans with Disabilities Act (ADA) can make it very difficult for the employer to let the individual go.   The ADA specifically identifies post-traumatic stress disorder as a protected mental impairment.

Should the employer become concerned about workplace safety, his only recourse may be to go to the expense of paying a psychiatrist to perform a fitness-for-duty evaluation (FFD).

Another reason many employers now shy away from hiring members of the  Armed Services, The Reserves, and the National Guard  is to avoid having to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA). This act requires employers to  promptly reemploy them in their civilian jobs upon their return from duty  (even if this means laying off the people hired to replace them) and to grant them any pay increases and, in some cases, any promotions they would likely have been entitled to had they not been deployed.

Employers who violate  or who are perceived as having violated USERRA  may be sued.  In 2011, U.S. Army Reservist David C. Fyock filed a complaint with the Department of Justice alleging that  the Pennsylvania Department of Corrections (PDOC) had violated USERRA   ” by failing to retroactively promote Fyock from a corrections officer 1 to a corrections officer 2 position” after he returned from military deployment. Fyock took a make-up promotional exam after he returned and scored higher than those colleagues who had been promoted to the higher position while he was deployed.  The Department of Justice found in favor of Fyock and has ordered PDOC to  promote him to the Corrections Officer 2 (Sergeant) position and to give him back pay along with other benefits.

More recently (in 2013), U.S. Army Reservist Curtis Kirk sued All Battery Sales and Service (ABS) for reemploying him in a lower position than the one he had held when he left for active duty. The new position came with fewer guaranteed working hours, a less lucrative commission and bonus structure and fewer opportunities for promotion. Later ABS let Kirk go, which Kirk claimed was also a violation of his rights under USERRA. The Department of Justice found in favor of Kirk and ordered ABS to pay him $37,500 to compensate for lost or reduced wages and benefits. 

Yes, not hiring someone because they might suffer from PTSD is a violation of the Americans with Disabilities Act (ADA) and not hiring them in order to avoid USERRA is outright discrimination, but this hardly curbs employers from putting their  business interests first and the law second. In fact, it’s quite possible that by scaring off prospective employers,  the ADA and USERRA has done more harm than good to those enlisted in the military.

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Indian Diplomat Expelled for Employment Fraud and Bullying

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Americans have developed a knack  for discerning which of our laws are strictly enforced and which can be broken with little fear of punishment. For diplomats the seemingly fine line between some of these laws may be difficult to discern. For example, it’s common in many areas of the United States to pay cash, no questions asked, for someone to mow your yard or clean your house. If you are determined to go the legal route, be prepared to pay wages in line with a chemical engineer’s for an e-verified, social-security recognized individual, if you can find one willing to do the work.  Oh, and don’t forget to withhold social security and Medicare taxes from that person’s paycheck, to match those withholdings out of your own pocket, and to issue a W-2 in January.

The film A Day without a Mexican captures the predicament of Americans needing assistance with their yards and their housework. The movie begins with border patrol officers in southern California arresting would-be immigrants coming across the Mexican border. Fast forward to the sudden and inexplicable disappearance of all Mexicans from California. Yards and houses and children go unattended. Construction comes to a halt. Restaurant meals go uncooked. Crops go unpicked. The state slowly but surely descends into chaos.

In the film’s final scene, (Spoiler Alert) Mexicans illegally cross the border late at night, then freeze when La Migra (now  ICE)  trains spotlights on them. Only this time the border patrol doesn’t handcuff them and load them into vans. Instead, the officers pat them on the back and welcome them to the U.S.A.

It’s little wonder  Devyani Khobragade, the Indian diplomat living in New York, was confused. What she apparently did not understand when she hired a fellow Indian, Ms. Richards, to cook and clean for her, is that paying cash for household help would have been one thing, but committing outright employment fraud by falsifying documents to secure an employee’s visa is another. However, the greatest error in judgment Ms. Khobragade made may not have been fraud, but her unethical, cruel treatment of Ms. Richards.  Ms. Khobragade reportedly forced the maid to sometimes “work 100-hour weeks, even when sick and often without a day off, for pay as little as $1.22 an hour.”

Living in a country which has made anti-bullying a national campaign, Ms. Khobragade had the audacity to bully her employee, an employee so isolated from her homeland, Ms. Khobragade assumed she wouldn’t fight back.

Is this why Ms. Khobragade felt pressured to falsify documents, so that she could hire a maid from her own country? Was she afraid that a documented American, or even an undocumented Mexican or Central American working in the United States, would not have tolerated such treatment?

Apparently she underestimated her fellow expatriate’s tolerance for abuse. Last June, Ms. Richard told Ms. Khobragade that  she was unhappy with the work conditions and wanted to return home. Ms. Khobragade refused the request and would not return her passport. Ms. Richard then turned to Safe Horizon, which helps trafficking victims, for help.

After being indicted by a federal grand jury in New York on charges of visa fraud and employment fraud, Ms. Khobragrade was granted immunity just long enough to be allowed to leave the United States and return to India. Since then, her name has been  placed on U.S. Immigration watch lists and she cannot return unless she surrenders to the court upon arrival.

In retaliation, India has   asked the U.S.  to withdraw one of its senior diplomats from New Delhi.

Diplomats living in the United States would do well to learn and follow not only American laws, but American ethics and not assume immunity when they violate them.

Quote of the Day – I-9’s and Criminal Consequences

“[Employers are] carrying extreme liability [in their I-9 Forms because Immigration and Compliance Agents] are looking for people to prosecute… Civil enforcement is out and criminal enforcement is in — including the possibility that business owners can have their personal property seized and that middle managers can be charged with felonies of conspiracy and harboring.” Mary Pivec, partner at Keller and Heckman LLP (Source: “Federal Enforcers Wield Big Sticks” H R Magazine, July 2010)