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.

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.

What’s in the Brownies? Employers Retain the Right to Enforce Drug-Free Workplaces in States Where Marijuana Has Been Legalized.

Green Wednesday

On New Year’s Day 2014, which has become known as Green Wednesday in Colorado, recreational marijuana became legally available to shoppers. And shop they did!   CNN’s Michael Martinez reports that “Indeed, before the 3D Cannabis Center opened at 8 a.m. MT, more than 100 people were waiting in snowfall and cold under gray skies.

In fact, as the day wore on some shops raised prices or reduced purchasing limits. This despite state and local taxes totaling more than twenty-five percent.

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 So what does this mean for employers wanting to maintain drug-free workplaces?

Fortunately, that question was settled before the recreational use of marijuana became legal in Colorado and Washington State. With medicinal marijuana having already been legalized in twenty states plus Washington, DC ,it’s not surprising that this question had cropped up in courts across the country well before Green Wednesday. Those courts have upheld the rights employers to terminate employees who have tested positive for marijuana based on the fact that marijuana use is still a violation of federal law. The Controlled Substances Act (CSA)  prohibits the possession and improper use of any controlled substance except in a manner authorized by the CSA. It categorizes marijuana as Schedule I drug.

In fact, one of the most recent court cases, Curry v. MillerCoors, Inc., was heard in Colorado. In this case, Federal Judge John Kane  “rejected a terminated employee’s claim that his employer discriminated against him on the basis of his disability when it discharged him for testing positive for marijuana.”

For now employers in all states, those which have legalized marijuana and those which have not, may continue to require not only applicants but employees to take drug tests and have the right to dismiss those employees who test positive. Even so, employers should take certain precautions to minimize risks.  On its webpage summarizing the ramifications of Curry v MillerCoors, Inc., The LEH Law Group offers employers some useful takeaways which include:

  • Having a written drug-testing policy
  • Including a policy provision regarding non-cooperation
  • Applying drug-testing policies consistently
  • Not asking employees if their doctor has recommended medicinal marijuana use

Visit The LEH Law Group’s website for details. And go easy on the brownies.

Card Carrying Parents Beware

Back in the dark days of Senator McCarthy, being a card carrying member of the Communist party could cost you your career. In these presumably more enlightened times, it may not be politics which get in the way of that job or promotion you are seeking, but your affiliation with your own children.

Despite laws requiring that all applicants and workers be treated equally, regardless of caregiver status, a study conducted by the American Journal of Sociology has revealed that a significant number of employers discriminated against applicants who mentioned, in cover letters, that they were officers in elementary school parent-teacher organizations.

According to H R Magazine‘s recent cover story “Handle with Care,” the study consisted of resumes and cover letters for fictitious job applicants being submitted to real employers. The resumes reflected comparable qualifications. However some cover letters were designed to represent the applicants as childless, while others were designed to represent the applicants as having children. The fictitious women who were represented as mothers (those who mentioned that they served as officers for parent teacher organizations) received half as many callbacks as the fictitious childless women (those who mentioned that they served as officers for college alumni associations). Men participating in parent teacher organizations likewise received fewer callbacks than those participating in alumni associations, but the degree of discrimination towards fathers was not as pronounced as it was towards mothers.

The moral of this immoral story is that if you do volunteer work for any parent organizations, you should avoid referring to those organizations in any cover letter or resume you send out or post online. Likewise, if you assisting someone else with his or her resume or cover letter, advise them to do the same.

Of course, if you work in human resources, now is a good time to remind anyone involved in the hiring, selection, recruiting, or promoting process that a person’s status as a parent or a caregiver must not be considered when making employment decisions.

SOX vs HIPAA

As the current economic climate demands greater than ever transparency on Wall Street, are companies obligated to reveal health issues which could result in the long term leave or the death of a CEO or a key employee?

In its March 2009 issue, HR Magazine (March, 2009) asks whether serious health issues being faced by CEOs or key employees constitute material information when it comes to the buying and selling of company stock. The magazine recommends that if the health issue does constitute material information, the company should disclose the issue to the general public (sans medical details) or should prohibit insiders from trading in the company’s securities so long as the information is kept private.

What do you think? When a CEO or an employee crucial to the operation and success of a company is forced to take a long term medical leave or is diagnosed with a terminal illness, should the company err on the side of protecting employee privacy or on the side of transparency?

Do CEOs and key employees at publicly traded companies forfeit their right to privacy just like movie and TV stars?

Link – Health Information Privacy