Military Employment Laws for Employees and Employers

Military employment laws are a complex issue. The U.S. Armed Forces employ less than 1% of the working American population, but many veterans re-enter the civilian workforce after their service. Studies estimate that around 20 million veterans live in the United States. For this Armed Forces Day, our team at The Noble Law wants to review military employment laws and discuss their relevance for employees and employers alike.

Veteran Discrimination in the Workplace

The Uniformed Services Employment and Reemployment Act (USERRA) is a federal law passed in 1994 that was designed to protect employees from discrimination in the workplace due to past, present, or future military service. USERRA applies to employers in both the public and private sector. If employees leave their civilian position to serve, the law demands that they be promptly re-employed upon the return from duty. USERRA also protects employees from being denied promotion or be otherwise disadvantaged in their career because of military status. If an employee feels like they are dealing with discrimination, the first step is to contact Employer Support of the Guard and Reserve, an agency created to resolve these issues.

Of course, the Americans with Disabilities Act (ADA) protects every veteran with a disability from discrimination in the workplace, whether that disability is service-related or not. For more on what the ADA defines as “disability”, head to our subject matter page here. As with all ADA claims, the employee must be employed somewhere with 15 or more employees. The Equal Employment Opportunity Commission’s website notes that “Title I of the ADA prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment—including hiring, promotions, job assignments, training, termination, and any other terms, conditions, and privileges of employment—because he or she has a disability, a history of having a disability, or because the employer regards him as having a disability.” An employer cannot refuse to hire a veteran because they have PTSD, for example, or because they assume that the applicant has PTSD due to veteran status.

Sexual Harassment and Assault

The 2020 murder of Spc. Vanessa Guillen in Fort Hood, Texas (who had reported sexual harassment from an officer, although it does not appear this was connected to her death) led to a broader investigation into the culture of Fort Hood. What the report found was extremely disturbing. American servicewomen were fighting a daily battle against their colleagues. Multiple sexual advances were par for the course, and those who reported the incidents to superior officers were told that there was nothing that could be done about this behavior. Women who spoke up about harassment were dismissed and ignored, and many incidents of harassment or assault were not even brought to the attention of leadership because of this reality.

These findings and a succession of other news reports about harassment and assault against female servicemembers led to a push for action. The most noteworthy movement came from the military funding bill, which inspired an Executive Order from President Biden.

That order designated sexual harassment as a separate offense, changing how sexual harassment and assault that occur in the military are prosecuted. Essentially, this means that military commanders are removed from the decision-making process. Instead, independent investigators will now make prosecutorial decisions on matters involving sexual harassment and assault. This is a large change in military employment laws.

Some critics believe that this change does not go far enough. Senator Kirsten Gillibrand, who has been a vocal leader in the push to protect American servicemembers, noted that the independent investigator has the authority to refer the matter back to the relevant military commander.

Military Employment Laws for Employers

To help facilitate the integration of military personnel when they return to the civilian workforce, employers can access tax credits if they hire veterans.  For example, the Work Opportunity Tax Credit (WOTC) allows employers to receive a credit of roughly 40% of a new veteran hire’s first year of wages. More details can be found at the U.S. Department of Labor’s page here. To facilitate the return to the workforce of disabled veterans who have dealt with persistent unemployment, the Wounded Warrior Tax Credit adds additional tax benefits for employers who hire veterans with service-related disabilities and have also been out of the workforce for six months.

If you or someone you know is dealing with veteran discrimination in the workplace, it may be valuable to discuss military employment laws with an employment attorney. The Noble Law has offices in New York, North Carolina, and South Carolina. Visit our pages or call our team directly through the numbers below.

North Carolina: 919-917-9421

New York: 212-662-6500

South Carolina: 864-565-9059

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