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All employers with employees on military leave must follow new USERRA regulations.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or the Act) gives certain rights to employees who temporarily leave their jobs because of voluntary or involuntary military service. The USERRA prohibits discrimination against employees because of their military status and protects their jobs while they are on military duty, subject to certain requirements. Recently, the Department of Labor issued regulations clarifying certain parts of the law to make it easier for both employers and employees to understand and apply.
The USERRA covers such issues as how an employee must give notice of impending military leave, what kind of job protection is available, what types of job benefits can accrue during military service, and how an employee is reemployed or reinstated once military service ends. Rules governing the return to work have prompted questions from employers. Under the USERRA, returning service members, depending upon the length of military service, can have as long as 90 days to apply for reemployment. The law requires that employers provide for the prompt reemployment of returning service members who request it. The regulations clarify that, as a general rule, an employer shall reinstate the employee as soon as practicable under the circumstances. Reinstatement must occur within two weeks after the employee applies for reemployment, absent unusual circumstances"."
Finally, employers must return service members to the positions they would have held if they had not served in the military. This provision applies to both promotional opportunities and salary increases for which the employee may have been eligible. When these increases or promotions are subject to the employee passing a test or exam, an employee that returns from military leave must be provided an opportunity to take the missed exam.
The USERRA's regulations are extensive. Employers who have employees on military leave should work with an employment lawyer to make sure that they are following the law correctly.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see www.dol.gov/compliance/laws/comp-userra.htm)].
A nonunion financial consultant is fired for protected activity.
A recent Washington, DC, case should remind all employers that they are required to follow the National Labor Relations Act (the NLRA or Act), even if none of their employees are union members. The defendant was an investment counseling firm that had recently acquired another company. Some of the employees of that company were offered jobs but with relatively unfavorable salaries and benefits compared with compensation before the merger. One of the vice presidents, who complained bitterly and often about the pay issues, was eventually fired.
The court held that the employer violated federal labor law by terminating the employee, because he was engaging in the protected, concerted activity of protesting the compensation terms and practices affecting himself and other financial consultants. Under the NLRA, an employee cannot be fired for complaining about workplace issues that affect at least two workers, and the complaining employee does not need to be acting with the authority of coworkers, as long as he is working to initiate, induce or prepare for group action.
Although the company argued that it fired the employee because his negative attitude and behavior went far beyond mere complaining, the court found his actions were protected. He was making his complaints on behalf of all the employees affected by lower pay after the merger, and it did not matter that none of the other workers joined in his protests.
This case illustrates that an employer can be liable for unfair labor practices, even if it does not have unionized workers. In fact, courts may go even further to protect nonunion employees, because they do not have the help or representation of a union to argue on their behalf.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Citizens Investment Serv. Corp. vs. NLRB, 430 F.3d 1195 (C.A.D.C. 2005)].
Refusal to hire a blind applicant may violate the Americans with Disabilities Act.
A customer service call center that refused to hire a blind woman who applied to be a customer service representative settled a lawsuit alleging that it violated the Americans with Disabilities Act (ADA). The woman received $200,000. The call center told the applicant that it could not accommodate her guide dog. The employer did not explain why it could not accommodate the dog and did not claim that the applicant was unqualified for the job.
Under the ADA, employers must make reasonable accommodations for qualified job applicants and employees with disabilities to help them perform their jobs. In this case, there was no legitimate reason for the employer to deny the applicant a job, other than the fact that she used a service animal. During settlement negotiations, the Equal Employment Opportunity Commission indicated that it was prepared to present an expert witness who had inspected the call center and who would testify that the workplace was suitable for accommodating a guide dog.
Although the use of a service animal may not be appropriate in every workplace situation, the ADA requires employers to make reasonable accommodations, such as permitting a guide dog, unless doing so would cause an undue hardship on the employer. In this case, the employer failed to conduct any sort of reasonable accommodation analysis before deciding that it could not accommodate the dog.
All employers should make sure their hiring and employment policies and procedures include guidelines for analyzing reasonable accommodation for applicants or workers with disabilities. Failure to do so can lead to liability under the ADA.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, EEOC vs. Americall Group Inc., N.D. Ill., No. 04-C-5554, consent decree 12/1/05]
Time spent at employer-mandated counseling sessions may count as hours worked for compensation purposes.
The plaintiff, a 911 dispatcher, had several stress-related emotional outbursts at work. Her employer required her to undergo a fitness-for-duty exam, and the evaluating doctor recommended the employee undergo six months of therapy as a condition of continued employment. Although the plaintiff already had a relationship with a therapist, the city required the plaintiff to use a psychotherapist of its choosing, and it paid the majority of the cost. When the plaintiff quit her job four months later, she sought to be paid overtime for the hours she spent commuting to and from her therapy sessions and the time actually spent in therapy.
The court agreed that in this case, the required therapy sessions constituted compensable work time, and since the plaintiff was already working a 40-hour week, she was entitled to receive overtime payments for going to therapy. The court based its conclusion on several factors. First, the sessions were necessarily and primarily for the benefit of the city, which was short on 911 dispatchers and therefore was seeking to keep the plaintiff employed and effective. Second, the plaintiff was not allowed to see her own therapist, which underscored the fact that the time she spent was actually "work" for her employer as defined by the regulations to the Fair Labor Standards Act (FLSA). Other factors in favor of finding the therapy to be compensable work were that the city paid for the sessions and required them as a condition of continued employment.
Because it is not uncommon for employers to require various types of fitness-for-duty exams for their employees, you need to be aware that time spent in therapy may constitute hours worked. Employees who attend employer-required therapy or counseling sessions may have a strong argument in favor of receiving payment for their time.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, Sehie vs. City of Aurora, --F.3d--, 2005 WL 3534472 (7th Cir. Dec. 27, 2005)].
