Men and women who bravely serve their country should, at a minimum, be able to return to their jobs after service and go work every day without harassment. Unfortunately this does not always happen.
There are two common scenarios that military veterans encounter following service: 1) Their job is not held or they are not re-hired back at the completion of service. 2) They are hired back, but when they return to work they are treated differently based upon a perception that they are emotionally disabled.
Failure to re-hire following Military Service
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees from discrimination based upon military service and also protects service members' jobs while they are deployed.
An example of conduct that might violate USERRA is passing a service member over for promotion because of absenteeism that is actually related to deployment or training.
USERRA also requires employers to employ and accommodate service members who suffer from disabilities resulting from their service. These requirements are more expansive than the right to a reasonable accommodation under the Americans with Disabilities Act and it is possible to see an interplay between USERRA and the ADA in cases involving disabled veterans.
USERRA also protects individuals from retaliation: “An employer must not retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation: or, exercised a right provided for by USERRA.” 20 CFR 1002.19.
Military Service and Perceived Disability
Unfortunately, there are times when a service veteran, although hired back, is placed in a position where he is subjected to scrutiny because of his service. This often comes in the form of harassment or discrimination based upon the employer's perception that they veteran has "PTSD" - an overly used and very misunderstood term in the employer community.
Practically, we often see employers tip-toe around service veterans - particularly those who have been in combat - and in some cases remove job duties or discipline/fire them far too quickly because of some unreasonable concern over the employee's mental state.
When this happens the employee may have some protections. The New York Human Rights Law and American's with Disabilities Act both protect against discrimination based upon a "perceived" disability by the employer - in other words the employer cannot target the employee because he believes that the employee is disabled or has a medical condition that would prevent him from performing his work.
If you have served your country and are now finding yourself the victim of harassment, refusal to reinstate, or termination from your position, contact us today. We are happy to help. You may also complete our employment questionnaire for an immediate case review here.