New CA Law Prohibits Job Discrimination Against Veterans

New CA Law Prohibits Job Discrimination Against Veterans
November 11, 2013

As we honor the service of veterans on this Veterans Day, we must also remember the obstacles veterans face when they return to civilian life - including the critical challenge of finding and keeping a job. 

The U.S. Department of Labor’s September, 2013 unemployment report shows that Iraq and Afghanistan war veterans are unemployed at a rate of 10.1% compared with civilians (who had a 6.8% unemployment rate).  And the rate among female Iraq and Afghanistan war veterans was even higher, at 11.6%.    

Veterans across the nation face discrimination in the hiring process.  Fortunately California has recently enacted a law, AB 556 (Salas), which prohibits employment discrimination based on military and veteran status.  It will go into effect on January 1, 2013.

Even when veterans do find employment, they often face problems at work, such as lack of accommodations for a physical or mental disability; harassment on the job because of their veteran status; and discrimination based on other protected characteristics such as race, gender national origin, and sexual orientation. 

In order to protect the rights of veterans and their caretakers in the workplace, veterans, their families, and their advocates should be aware of the following laws.

Family and Medical Leave

The Family and Medical Leave Act (FMLA) provides for job-protected time off for work for eligible employees to attend to the needs of their families.  Because the FMLA requires reinstatement following time off from work and requires health insurance continuation, it helps maintain employment and economic stability for working families.   While the FMLA initially was focused on affording leave to those caring for family members with serious health conditions and bonding with new children, it was significantly amended in 2008 to provide specific leave for military service members and their families. 

The 2008 FMLA amendments added two new types of leave for eligible employees:  expanded caregiver leave and military exigency leave.  With respect to the military caregiver leave, the FMLA amendments added specific leave provisions for those caring for injured service members.  This leave expansion was significant for three reasons.  First, it provided for more weeks of leave than previously were available, up to 26 weeks for military caregivers as opposed to the usual 12 weeks available for general FMLA leave.  Second, it provided an expanded definition of family, including “next of kin” rather than the narrow family definition that is in effect for the other FMLA provisions.  Third, in 2011, the expanded leave was extended to include veterans (rather than only injured service members).   

The FMLA’s military exigency leave provisions allow for job-protected time off for work for a wide variety of reasons associated with workers whose family members are in the reserves and are called to active duty service.  The list of permissible reasons for taking this military exigency leave include attending military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation leave, post-deployment activities such as briefings, and a catch-all of “additional activities.”

USERRA

Uniformed Services Employment and Reemployment Rights Act (USERRA), which was passed in 2001, protects the employment rights of workers who have taken time off due to their military service.  The statute provides specific reemployment guarantees for those returning from military service.  However, the employee’s absence from work cannot exceed five years (with certain exceptions).  USERRA contains a number of unique provisions, not generally found in job-protection statutes.  First, it applies to all employers, regardless of the number of employees (laws like the FMLA require 50 or more employees within 75 miles of the worksite).  Second, it provides for reinstatement to positions with any promotions that would have occurred but for the employee’s military service.  USERRA rights will not apply if the service member’s discharge is less than honorable. 

Disability Protections

The Americans with Disabilities Act (as amended) and state disability law also provide important protections for veterans.  The rate of disabilities among those who have served in the military is high.  These disabilities can range from physical injuries such as lost limbs to mental health conditions such as PTSD.  Both federal and state law prohibit discrimination against applicants and employees with disabilities.  Moreover, employers are mandated to provide reasonable accommodations to applicants and employees with disabilities (subject to a few limitations such as undue hardship). 

Veterans who believe they have experienced employment discrimination or harassment may contact LAS-ELC, the Department of Fair Employment and Housing, the EEOC, and/or the Department of Labor.