by On July 6, 2021, the Eighth Circuit Court of Appeals found that Union Pacific Railroad Company (Union Pacific) had not violated federal laws protecting the reemployment rights of veterans when it reassigned a former General Manager of Safety Analysis to the position of Director of Safety Analysis upon his return from voluntary deployment with the U.S. Marine Corps Reserve. (Quiles v. Union Pacific Railroad Company). The Eighth Circuit is the federal circuit with jurisdiction over many states in the Upper Midwest, including Minnesota, North Dakota, South Dakota, Iowa, and Nebraska. Even though the employer prevailed, the case demonstrates the time and expense involved when there are disputes about what constitutes compliance with federal veterans’ employment protections. Employers are encouraged to review their legal obligations regarding the hiring, reemployment, and retention of veterans.
In the recent case, the employee had been with the employer for a number of years before being deployed with the Reserve. He had achieved a managerial position with the company. Under federal law the employer is required to return an employee in such a situation back to the same job as he left. However between May 15, 2015, when the employee left his job, and October 2015 when he returned from deployment, Union Pacific underwent a reduction in force and eliminated all general manager titles, reclassifying many former general managers as directors. The employee retained the same job benefits, compensation and worked on the same projects as before deployment, but the reporting structure had changed. The employee viewed his new director role as having less responsibility than his previous role and sued the employer for violations of federal law. The appeals court found that the reassignment was not a violation of the federal law under these facts.
There are two federal laws that prohibit discrimination in private employment based on the veteran status of an applicant or employee. This case was brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA protects veterans and those with the intent to join uniformed services from discrimination and, among other things, requires employers to reemploy employees who leave employment for service under most circumstances. The other major federal law, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), protects applicants and employees of federal contractors or subcontractors who meet the definition of ‘protected veteran’ from discrimination and retaliation.
Under USERRA, individuals who are a past or present member of the uniformed services or have applied for membership in the uniformed service may not be denied employment or reemployment due to that status. The uniformed services include Army, Navy, Marine Corps, Space Force, Air Force, Coast Guard, and National Guard.
Employers are required to provide persons entitled to the rights and benefits under USERRA with a notice of their rights. Most employers meet this federal Department of Labor (DOL) requirement by posting the DOL notice “Your Rights Under USERRA” at all work locations. However, other methods of notice are acceptable, including mailing out notices or sending them to employees via email.
The DOL website (https://www.dol.gov/agencies/vets/programs/userra/compliance) has detailed guidance on the obligations of both the employee and the employer in meeting the requirements of USERRA.
Compliance with VEVRAA is also handled through the DOL. The DOL subagency Office of Federal Contract Compliance Programs (OFCCP) is responsible for assuring VEVRAA compliance by federal contractors and subcontractors. Affirmative Action Plans specifically addressing the hiring and retention of covered veterans are required of most federal contractors. Federal contractors are required to provide applicants with the opportunity to self-identify as covered veterans in the hiring process. Since 2013 the OFCCP has set annual hiring benchmarks for federal contractors to help them assess the effectiveness of their efforts to recruit and retain protected veterans. In addition, federal contractors with federal contracts of $150,000 or more must submit an annual report known as VETS-4212 regarding their affirmative action efforts to the DOL. This year the deadline for filing VETS-4212 reports is September 30, 2021. For more information on VEVRAA compliance and on VETS-3212 reporting, see www.dol.gov/agencies/ofccp/faqs/vevraa and https://vets4212.dol.gov
Note that additional protections and rights may be provided to veterans under state laws. The federal government and several states have ‘veterans’ preference’ laws that give qualifying veterans and disabled veterans with a hiring preference for government jobs. In some jurisdictions, this involves providing extra civil service ‘points’ to the eligible applicant; in other jurisdictions, veterans’ preference can mean that a veteran with the minimum qualifications for the government job gets preference over a non-veteran with greater than minimum qualifications. More than two-thirds of the states also have laws that permit, but do not require, private employers to give hiring preference to honorably discharged veterans.
