No.  I’m not talking about aliens – not even the kind from another country.  I’m talking about highly trained, extraordinarily dedicated police dogs, like the one who recently got the job done on his first night at work in Houston according to KPRC 2 News.

Courtesy of click2houston.com

You all may not know this about me, but all my “kids” have fur.  That’s right, we have a house full of rescue dogs.  So, this story hits home for me – especially given that Looper Reed helped Kristi Schiller set up the charity that made the aformentioned dog deputy available to Houston police.

K-9’s for Cops, donates the $10 – $12,500.00, per dog, necessary to help law enforcement agencies have K-9 units in an era where budget cuts have made K-9 cops an unaffordable luxury.

And before you ask, employers don’t have to pay overtime or minimum wage to these employees, but be careful about discrimination – K-9 work isn’t just for German Shepherds.  There are all manner of dogs involved in police work all over the country.

Take a look at the site www.k9s4cops.org, and if the mood strikes you, give a little back to those who give us so much.

Who, What, Why . . .

Who does it apply to:  Every employer, but especially those subject to discrimination laws or who have employees classified as exempt from overtime.

Why should I have any:  If done right, a job description can help avoid discrimination claims, make job listings and interviews a snap, provide the analysis for classifying employees as exempt or non-exempt, and set the standard for performance appraisals.

How does a description help with exemptions from overtime:  As you know from my previous pieces on Overtime and Exemptions from Overtime, all employees are eligible for overtime – unless they meet one of certain limited exemptions.  Job descriptions can be written with exemptions in mind.  Then, when the Department of Labor arrives for an audit, you have the ammunition you will need to defend your decision to exempt those employees, and you will be less likely to have made a costly mistake in your initial determination of exempt status.

How does a description help with interviews and performance appraisals:  A job description makes writing an ad for an employee very easy because you’ve already defined what you want and can easily transcribe it. Descriptions make interviewing more objective by setting the standard by which all applicants are evaluated.  Finally, descriptions can be converted to evaluation points to objectively determine whether the employee has measured up to the job you’ve given them.

How does a description help avoid discrimination claims:  As noted above, they can help make interviews and performance appraisals objective, avoiding arguments that you made subjective determinations based on race, sex, or some other protected characteristic.  When written to include the essential functions of the position, including physical requirements like lifting, or reading and writing English, they will help avoid claims under the Americans with Disabilities Act (ADA), or discrimination claims based on national origin.

What problems might arise with old or inaccurate descriptions:  Job descriptions pulled off the internet from or a form book are like employee handbooks from the same sources.  They do not really reflect your practices or requirements.  If the Department of Labor arrives and questions employees about job descriptions and they don’t match up, the work in creating them will be for naught.  What is more, the position you designated as exempt based on an inaccurate description may be lost, and you could be responsible to the employee for overtime going back two or three years.   Worse still, since you did not have the employee clock in or out, you have nothing to defend with when the employee suddenly remembers working 5 hours of overtime every week!

What should be in a job description: Job descriptions need to separately describe both the essential functions of the job and those additional requirements that might be added or occasionally fall within the responsibilities for the position.  Essential functions should include not just the basic job duties, but employers must take consideration of what specific characteristics make up those functions.  You shouldn’t just assume that employees must read and write English. To protect you, even functions of this type need to be in the description in advance. Similarly, to protect against claims under the ADA, descriptions need to explain the physical requirements of the job such as lifting, carrying, and typing.  Finally, employers should consider whether the position should be exempt from overtime and under which exception so that the description can be written consistently with the exception requirements.

What should not be in a job description:  Employers should be careful not to write job descriptions that suggest discrimination.  A policy that all employees read and write English might be alright for the hotel front desk clerk, but not for the housekeeping department and thus create discrimination based on national origin.  Requiring a college degree for a job that does not need it might unnecessarily exclude certain protected classes.  And, a policy that specifically calls for a protected characteristic such as sex or religion is only appropriate if it is a “bona fide occupational qualification” or “BFOQ.”

When are BFOQs appropriate:  Sometimes it is appropriate to intentionally discriminate against a protected class in hiring an employee.  If you are hiring a new priest for your church, it is probably good that they have the right religion.  If you are hiring an attendant for the women’s restroom in your gym, it probably is best not to hire a man.  That said, it is not appropriate to hire all men because you are a men’s clothing company.  This is a dangerous area.  Courts are very particular about what is allowed under this exception.  You should probably consult with a lawyer before characterizing a protected class as a BFOQ.

Common Situations:

Job description after the fact:  Often, employers get caught with a Department of Labor audit and try to write job descriptions to justify exemptions after the fact.  The DOL is wise to this idea and gives the after-thought job descriptions little weight.  The same issue arises with job descriptions written after a discrimination claim is made.  The description often is used by the claimant to their advantage to make it look like the employer is trying to cover up to avoid liability.

Some jobs just require a guy:  BFOQs are dangerous, but having a requirement that you hire all men for your female-oriented shirtless hunk restaurant without writing down the requirement and explaining it in advance is a recipe for being sued.  In a reverse circumstance, a little company called Hooters™ got sued because it wouldn’t hire any men for its wait staff.  If you are going to have a BFOQ, put it in writing in advance and include an explanation that a jury would believe because that is who will ultimately evaluate it.  If a jury wouldn’t buy it, you probably shouldn’t be doing it.

Criminal background checks all around: If your job description says “no criminal history,” it better be needed.  Pepsi™ recently discovered that requiring no criminal history or even arrests for all positions can be considered discriminatory.  According to the Equal Employment Opportunity Commission, who just took Pepsi™ for a $3.1 million dollar settlement, not all jobs require a spotless criminal history.  I don’t necessarily agree with this position, but it makes a point.  If you make a job description that unnecessarily has an adverse effect on a particular protected class, even if it isn’t facially discriminatory, you could find yourself in a bad spot.

What should I do:

Good: Prepare job descriptions for all exempt employee positions and positions that require strenuous or specialized physical activity to protect against overtime claims and violations of the ADA.  Remember to be careful with job descriptions in a union environment, there may be additional requirements under the collective bargaining agreement you should consider.

Better: Prepare job descriptions for all positions and use those job descriptions as the basis for your interviews of prospective employees and as a checklist for performance evaluations of existing employees.  Be careful not to use sexist terms in your job descriptions like salesman or waitress.

Best:  In addition to the items above, get employee buy-in for job descriptions.  Have the employees presently in the position agree with the job description and what is included such that you could show the Department of Labor that the employee agreed to what is required.

Facebook privacy among employees has been discussed for a long time, but a couple of recent events have brought the issue to the forefront of public discussion.  At the beginning of the month Forbes reported on a lawsuit moving forward in Minnesota against a school district that requires Facebook passwords of students.  Then, last Friday, Facebook issued a statement with commentary that it is changing its user agreement to make it a violation to share your password:

“In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

The most alarming of these practices is the reported incidents of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.

As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.

Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do—the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime).

Facebook takes your privacy seriously. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.

While we will continue to do our part, it is important that everyone on Facebook understands they have a right to keep their password to themselves, and we will do our best to protect that right.”

— Erin Egan, Chief Privacy Officer, Policy

So, what does this mean for Texas non-governmental employers?  Realistically – nothing.  An employee or prospective employee has a  right to maintain their privacy, but you don’t have an obligation to employ people who insist upon this right.

If someone refuses to provide you with access to their Facebook account, you can refuse to hire them or fire them.  Yes, even if it would make them violate Facebook’s policies.  What then, you say, about the threat Facebook might sue?  It is the prospective employee who would be in violation of the policy, not the employer.  Facebook could theoretically sue employers for tortious interference, but they really don’t have any damages to support a claim.  (NOTE: I am not offering any commentary about whether it is morally or societally appropriate to put someone in that position.  I could write a a whole article on that subject . . .)

That said, there are some things to consider.  With prospective employees, your request may provide information that you don’t want to see.  As my partner Travis Crabtree observed on his blog eMedia Law Insider, looking at a Facebook account has the potential to give employers information they really don’t want to know about a prospective employee.  If potential employee Suzy Smith posted that she ran last weekend in her Baptist church 1/2 marathon, you now know her religion.  Ooops.  You didn’t really want to know that did you?  Now, if you don’t hire her, she could claim that knowing her religion biased your decision.

In a different vein, employers might also learn of possible claims employees may have as employment attorney Chris McKinney points out on the Texas Employment Law Blog:

What if a female employee posts something on her Facebook page indicating that she is having trouble with her boss and his wandering hands only to be fired the following week?  She files a lawsuit for harassment and retaliation, arguing that while she never complained to HR the company surely knew of the conduct of her boss because they have full access to her Facebook account . . .

Of course, you also have to be careful with existing employee Facebook information.  As I have previous warned, the National Labor Relations Board has rabbidly chased after employers who use employee complaints as a basis for termination or discipline.  Employee complaints about supervisors, pay, or working conditions are considered pre-union activity and protected under the National Labor Relations Act.

So, while the announcement likely changes nothing, previous cautions remain in effect.

When I first heard about this story I assumed that it was a company filled with UT haters in College Station.  Nope.  According to the Sun-Sentinel, it was a law firm in Florida.  One Friday, a group of employees at the law firm of Elizabeth R. Wellborn, PA decided to wear orange shirts so that they would all stick out later that day when they went out to happy hour at a local spot.   That afternoon all 14 were summarily fired without explanation.  Maybe the boss didn’t get invited?  Maybe their supervisor wasn’t loved as a child?   There is no way to know because the law firm refused to comment. 

In any case, I absolutely love this story.  I just always thought blue was the color at issue.  I commonly tell employers that Texas is an employment “at-will” state and they can fire employees for good reason, bad reason, or no reason – as long as they don’t do it for an illegal reason.  I then illustrate the point by giving this example:  If Suzy comes in wearing a blue shirt and you suddenly decide for some reason that you don’t like blue, you can fire her!

I can now die happy.  My utterly ridiculous example to prove a point has now become reality!!  And the employer was cautious enough to follow another long standing piece of advice I just covered in my recent post on terminations:  Don’t give a reason.

I get this question at least once every couple of weeks.  Recently, however, I finally reduced the list to writing.  So, here is the benefit of my wisdom . . . if you can call it that.  Follow these rules for safe termination:

1. Always have two people in the room. Two recounts of what happened are better than a he-said-she-said fight between a former employee and the employer in a later lawsuit.

2. Always have a person of the same sex, and if possible, race, religion, etc, as the employee in the room. A jury will like that person’s perspective better than the black male boss in a lawsuit against a former white female employee.

3. Do not make the employee do the walk of shame. Studies show that a former employee’s desire to sue is somewhat related to how they felt about the termination. If you humiliate the person, they will have a stronger motivation to get revenge. Fire at the edge of business hours when there are few people around and allow the employee to leave after the meeting to return later for their belongings, which you can box up, if they prefer.

4. No access to computers after the meeting. An angry employee might do damage. Cut them off and terminate any remote access before the meeting.

5. Ask them to bring in any computer equipment or other hardware they possess for the meeting. Come up with an excuse. Do something. Getting it back later can be an absolute pain in the behind.

6. Get an agreement, in writing, to collect any unpaid payroll deductions from the last check.

7. Do not give a reason. This is the hardest one for clients to follow. There is a strong urge to treat termination like a high-school break up with the “it’s not you, it’s me” excuse or some other excuse made to help the terminated employee feel better about their separation and ease the conscience of the terminating employer. For later defending some type of claim, employment lawyers are then hemmed into a polite excuse, rather than the real reason which is likely that the employee was no good. To preserve a clean slate for the employment lawyer to use, don’t give a reason.

8. If you are going to offer severance to get a release, don’t shove it down the employee’s throat during the meeting expecting a signature. For certain employees you have to offer more time for consideration by law. For the rest, you don’t want anyone arguing they were coerced. Put it in an envelope and tell them they can look at it later and consider it so long as they return it timely. DO NOT tie receipt of a final check to signing off on a severance agreement. You do not want the former employee arguing that the money paid for the release was just additional regular pay that was owed. 1099 the payment. Do not deduct payroll taxes. And, use a round number – if you want to use 2 or 4 weeks pay, round to the nearest $500 up or down as you see fit.

9. Pay the final paycheck within 6 days after termination. It is the law.

 

It’s not the latest baseball sensation’s new contract amount.  It is the amount that Ani Chopourian was awarded against Sacramento’s Mercy General Hospital for a operating room sexual harassment spanning two years.  As the LA Times reports, Ms. Chopurian filed at least 18 internal complaints of harassment over two years working surgery at Mercy General before being fired for alleged misconduct.  They even tried to deny her unemployment benefits (in California no less – which is super employee friendly).

I guess the jury saw right through the facade.  Ms. Chopurian testified that she worked at four hospitals in her career before working at Mercy General and the conditions in surgery were bad in all of them.  It is a sad commentary on the respectability of some of the most intelligent members of the community.  You would think that physicians might know better, but many don’t . . . or don’t care.  Unfortunately the ego of some physicians leaves them with a feeling that they are invincible or untouchable.

Sadly today these few bad apples give the profession a black eye.  Welcome to the club, docs.  Lawyers often suffer from the same fate.

Sensationalism aside, however, what is a hospital administrator to do?  Apparently at Mercy General they look the other way.  Surgery brings in a lot of money for hospitals.  And cardiac surgeons, like those Ms. Chopourian worked with, bring in some of the highest payments from insurance companies.

It is a touchy thing managing doctors – much like professional baseball players who can earn enough money to pay the verdict in this case.  As I am fond of telling my clients – It is all about managing risk.  If you don’t want to have claims, manage your people accordingly.  In the past, it appears that Mercy General has erred on the side of leniency.  Of course, it won’t take many verdicts like this to straighten the moral fiber of hospital administrators and their Boards.

We can only hope this message hits home with as many folks as possible before bad behavior catches up them.  And, if you don’t get the message, give me a call when you get the claim.  In addition to the possibility of a verdict, it should be worth a lot in fees.

Who, What, Why . . .

Who does it apply to: Any employer with 15 or more employees that obtain genetic information (including family history) about an employee.

Why should I keep reading – I don’t use genetic information: It’s true, most employers don’t have a program to obtain genetic information about employees, but the law is broad enough that “genetic information” includes family histories of an employee’s health, which employers are much more likely to come in contact with.

What does it require: Employers are not permitted to use an employee’s genetic information in making employment decisions, retaliate against an employee for making a claim of discrimination based on genetic information, or permit an employee to be harassed based on that employee’s genetic information.

What exceptions are there to the law:

There are six so called “exceptions” to the law, but most of them are really more like Get Out of Jail Free Cards to avoid liability for a claim:

• Inadvertent acquisitions: If an employer accidentally acquires information regarding genetic information, for example, a supervisor overhears someone discussing a family member’s illness.

• Acquisitions associated with leave  or  accommodation: An employer is  protected  against  violation  for information received from an employee  in  connection with a request for leave under the Family Medical Leave Act (FMLA) or for accommodation under the Americans with Disabilities Act (ADA).

• Wellness programs: If the employee provided the information as part of a health or wellness program that the employee voluntarily signed up for and the information is used only as to that program, the employer may see the information only as part of an overall assessment.

• Information that is commercially or publicly available: This includes information in newspapers or on the internet posted in easily located places, but the employer may not seek out this information for the purpose of using it to make employment decisions.

• Legally required monitoring: Monitoring as part of an occupational safety or health program required by law is excepted from violation, but the employee must be aware of the monitoring and federal guidelines that must be followed.

• Law enforcement and military: Employers may collect information to help law enforcement and the military with proper genetic identification.

When can I disclose information that I have: Given that you are not supposed to have any information, there should never really be an occasion that you need to disclose it. That said, information employers do have may be provided to: (1) the employee whose information it is; (2) in response to a court order for that specific type of information; (3) to the government in association with an audit; (4) in connection with a leave request; and (5) to government officials in connection with a disease or if imminent hazard of life or death exists.

Common Situations:

Pretesting to avoid CTS: A northern railroad company decided to attempt to head-off the growing number of carpal tunnel syndrome cases it was suffering under its worker’s comp program by conducting genetic testing. Early in the program, the company determined an employee was predisposed and threatened termination if the employee would not accept a different position that reduced the risk. Clearly this would violate GINA now, but the circumstances occurred before the law was passed and the EEOC scrambled to attempt to characterize the employer’s actions as a violation of the ADA.

Passed down disease: An employee requests FMLA leave to take care of her father. As part of the employee’s request for leave, she explains that her father has Huntington’s disease and that she herself is scared because she has a greater than 50% chance of getting the disease. Reeling from other employee health claims and the skyrocketing premiums for health insurance, the employer finds the first opportunity to let the employee go after she returns from leave, despite excellent performance appraisals in the past 3 years. Clearly this is a violation, but reflects on an all-too-common conundrum for employers who are trying to find any way possible to cut down on the high cost of healthcare for their employees.

Does anybody else in your family have that: Tom comes back from bereavement leave and tells his employer that his mother passed due to cancer. His employer inquires, possibly innocently, whether anyone else in Tom’s family has had to deal with cancer. Tom replies that he has lost 6 relatives to cancer over the last 10 years. Weeks later, Tom is passed over for a promotion to the company’s controller. He files an EEOC claim based on genetic information discrimination. Is it a valid claim? We don’t know the mind of Tom’s boss, but it doesn’t really matter, the employer will have to deal with an EEOC investigation and possibly a lawsuit costing thousands of dollars in legal fees just because he asked the one question too many and it was considered a “probing” question by the employee.

What should I do:

Good: Be careful of “family health histories”. For most employers that is the only real way GINA will affect you. You need to avoid obtaining family health histories at all costs. Make sure your employee handbook prohibits discrimination based on genetic information and put up the required poster from the EEOC regarding genetic information discrimination.

Better: In addition to the items above, store any medical file information regarding employees in a separate locked cabinet and use the safe harbor language on any medical information forms to protect against inadvertent disclosure of protected information (including FMLA request forms).

Best: All of the above, and make sure that any pre-employment health screenings don’t ask for a family medical history or require genetic testing unless you meet an exception.

According to the Washington Post, 6,000 black Iowans are claiming that their state government should pay them money for discrimination it doesn’t even realize.

OK.  You should all be clear by now that flirting with your secretary is impermissible overt discrimination.  A few weeks ago, I wrote about Pepsi settling a claim of “disparate impact” discrimination by the EEOC.  (For those needing a refresher – disparate impact occurs when an intentional, but facially neutral, company policy has the unintended consequence of discriminating against certain people).

Now, a group of existing and prospective Iowa state government employees are claiming that the state should be liable for discrimination based on “implicit biases.”  Using statistic and  research from the Implicit Association Test developed at Harvard University, lawyers for the claimants believe that they can show discrimination caused by subconscious preferences for whites by state employment decision makers.

Fine – I get it.  There is some merit to the idea that we have preferences in our mind that we do not even realize.  That is not my problem with the suit.  What I can’t wrap my mind around is the idea that an employer should be forced to pay money to someone because it may have discriminated without even consciously realizing it.

In the law we have “intent” based offenses and “negligence” based offenses.  If you hit someone with a bat, that is an intentional act which provides a right of recovery.  If you are not paying attention and  run over someone with your bicycle, that is a negligent act which properly provides a right of recovery.  In each case, the bad actor is doing something he or she could consciously correct.

What these claimants are asking goes way beyond that.  The claimants want to punish employers for things they don’t even realize they are doing and can’t really do anything about!  At best, employers would have to guess at what their biases are and try to over-correct without knowing if they are combating the right  bias.  In fact, compensating for one perceived or potential bias might result in a more direct bias against another group.  For example, an employer who compensates for concern about bias against blacks may discriminate against Hispanics or whites in the process.

The law cannot provide a remedy for every wrong. It has to balance equities and be as fair as possible without going too far.  If the Iowa plaintiffs succeed, it will be great for those of us who defend businesses, but heaven help our clients!

This week a judge in Houston ruled in favor of an employer who fired an employee who wanted to use a breast pump to express milk during work for her child.  Donnicia Venters went on company-approved leave for a pregnancy from her job at a Houston collection agency in late 2008.  When she called to return to work, the company owner was very friendly until Venters requested to use a backroom to pump milk for her child.  When Venters made the request, the company owner changed his tune saying that Venters’ spot had been filled.

Venters made a complaint with the EEOC and the EEOC took the employer to court alleging that the employer’s conduct was considered pregnancy discrimination.  After hearing argument this week, the Houston judge tossed Venters and the EEOC out on their respective ears.  Many folks are up in arms.  How is this fair?  What does the Houston judge have against pregnant women?  Is the justice system broken?

In a word, “no”.  While I do not hold the employer in very high regard for his disrespect to the employee, the judge (in my humble opinion) was not wrong.  I don’t really think Congress considered breastfeeding or expressing milk when it wrote the pregnancy anti-discrimination law.  The language of the law does not clearly or logically protect breast feeding mothers after they return to work.
Enter the Patient Protection and Affordable Care Act (“Affordable Care Act”) signed into law in March 2010, which very clearly provides that employers must give a break and a private place for nursing mothers to express milk for their newborn.
The Affordable Care Act did not go into effect in time to protect Ms. Venters, but employers must now offer a “reasonable break time” for nursing mothers to express milk as often as necessary.  The employer must offer a private space for the employee to take the break, but a restroom (even if private) will not suffice.  Employers do not have to pay the employee during the breaks, but if the employee already receives a paid break time, that time may be used.
Employers with less than 50 employees can skip out on this requirement, but only if they can show an undue hardship.  Be careful though, the Department of Labor is unlikely to side with employers in a close call.  If you think you should be exempt, check with your lawyer for some advice.
If the law was really clear before – why would Congress need to pass something so deliberately clear.  Answer: Kelsheimer is right, the law wasn’t really all that clear.

 

Who, What, Why . . .

Who does it apply to: Every employer who receives an application for employment from a service member, employs a service member, or may reemploy a service member.

What is the purpose of the law: It is designed to prevent discrimination by employers against service members based on their service, and protect the rights of service members upon return from service to return to their jobs.

Who are considered “service members”: Any person on active duty, active duty training, inactive duty training, or an applicant for one of these categories in one of the following organizations: Army, Navy, Air Force, Marines, Army National Guard, Air National Guard, Coast Guard, or the Public Health Service corps.

How does the discrimination protection work: Employers are not permitted to discriminate against a service member based on the fact that they are a service member in any significant aspect of employment.

What are a service member’s rights when they go on leave: Service members are entitled to return to work upon completion of up to five years of service (unless extended due to war or other action) and they are entitled to up to 18 months of health coverage while absent on military leave. Reservists are entitled to return to work upon completion of annual training exercises.

What happens when the service member returns from leave: Employers must: (1) return the service member to work within two weeks of application for reemployment; (2) immediately return them to any company benefit plans including health insurance; and (3) place the service member in whatever position they reasonably could have been expected to “escalate” to if they had never left for service. Additionally, an employer cannot fire a returning service member without “cause” within 180 days after a service stint of 180 days or less, or one year if the service member’s stint was longer than 180 days.

How does this “escalate” principle work: Upon return, employers must place the service member in the position that represents the level to which the service member would have risen if they had been with the company the entire time the they were gone. This includes pay raises, additional vacation, employee benefits, job title, job location, assignment, rank, responsibility, etc. It may also be either an upward or downward movement in position. If you had to cut back, and the service member would have been demoted, that is the position they get upon return. If the employer finds the service member lacks the skills for the new position, the employer must make reasonable efforts to bring the service member up to the skill level before considering any reduction below the position to which the service member would have escalated.

Are there circumstances under which an employer does not have to reemploy a service member: Yes, if the service member: (1) left service without leave, was dishonorably discharged, or court martialed in certain circumstances; (2) failed to provide adequate notice before leaving for service; (3) fails to timely apply for reemployment; (4) failed to return to work after application for reemployment – subject to the employer’s abandonment rules; or 5) is disabled in such a way that they cannot perform the    job duties and all attempts failed to find an alternative solution. Alternatively, an employer is excused from reemployment if: (1) an employer’s circumstances have changed; (2) doing so would cause an undue hardship; or (3) the pre-service position was   for a brief or non-recurrent period. However, these are limited exceptions. For example, the service member’s job being filled or there being  no openings at the time doesn’t rise to the level of an undue hardship.

When does the service member have to return to work after returning from service: For service less than 31 days or for a fitness examination, the employee must return to work the next business day beginning more than eight hours after arriving home. For service of 31 – 180 days, the service member must usually apply for reemployment within 14 days. For service over 180 days, the service member must usually apply within 90 days. After receiving an application for reemployment, an employer must return the service member to work within two weeks.

Common Situations:

Employee disappears to begin service: Phil Flyboy simply does not show up for work one Tuesday morning. His employer, Pioneer Aviation, learns that he has left for active duty service and knew for two months before leaving. Is Pioneer obligated to reemploy Phil when he returns? Probably not. Service members are obligated to tell their employers as soon as reasonably possible when they will leave for service. The notice can be written or oral and must be delivered to the owner or a person of authority. If Phil had provided very little notice, Pioneer would still probably be obligated to reemploy him unless it could show that Phil’s short notice caused substantial hardship or severely disrupted its business at the time Phil left.

Looking for greener pastures: Suzy Soldier returns from four years of service and immediately begins looking for a job with someone other than, the employer she left for active duty service. Is Suzy barred from application for reemployment within 90 days as provided by the law because she is looking for a new job? Simply put: no. The service member can seek alternative employment without losing their reemployment rights.

Unsure return: Sal Sailor submits an application for reemployment but is vague about when he got back. His employer, Tommy Toughnuts, requests documentation about the timing and condition of his return to prove Sal’s application for reemployment is timely. Sal dilly-dallies with the information and Tommy is approaching the two week deadline to put Sal back to work without the information. Is Tommy allowed to put Sal’s return on hold or refuse to reemploy him? Tommy is entitled to the information, but must take Sal back even if he can’t produce confirmation before the two week deadline. If Sal: (1) fails to produce the information when it becomes available; (2) was untimely in applying for reemployment; or (3) was dishonorably discharged, Tommy can let him go afterward.

New hire madness: After searching to find the perfect CEO for his company, Frank Friday decides upon Shawn Gunny. He is perfect for the job. In the final interview, Shawn tells Frank that he will soon be called up to active military service for a 2 years. Frank reverses his plans and hires someone else. Shawn is heartbroken and Frank will soon be financially broken by Shawn’s lawyer. Frank cannot discriminate in a hiring decision – even if it means losing his new hire right after he starts.

What should I do:

Good: Post the notice required by law and watch out for potential issues.

Better: In addition to posting notice, teach supervisors to be on the lookout for discrimination against service members so they can stem the tide of any discrimination. Maintain a policy against discrimination against service members and a method for reporting that discrimination.

Best: In addition to the items above, maintain a record of any absent service members and what raises they might have accrued during time off. If you perform employee evaluations, prepare a note for service members on duty with what their raise might have been at the same time you review other employees. Also collect records on any returning service member to verify they were honorably discharged and made application for reemployment in a timely manner.