New veterans law offers tax credits to employers

Posted by Susan M. Webman on November 21, 2011

 

Today, the President acted quickly to sign into law the VOW_ to_ Hire_ Heroes_ Act_of_ 2011.pdf. In one of the few displays of both bipartisan and bicameral actions in recent times, Congress passed the legislation intended to assist unemployed veterans find employment. In a symbolic vote on November 10, the day before Veterans Day, the Senate unanimously passed its bill (95-0), which was based upon the House-passed Veterans Opportunity to Work (VOW) Act.  The House followed quickly to pass that bill on November 16.

 

The Department of Labor’s Bureau of Labor Statistics (BLS), in its the October 2011 report, showed that the overall jobless rate for veterans, at 7.7%, was lower than the national rate of 9%, but for those who served in Iraq and Afghanistan, the rate was much higher--12.1%.  Some 2/3 of these veterans are under age 35. Breaking the figures down further, Gulf War era II veterans, i.e., those who served since September 2001, who were current or past members of the National Guard or Reserve, suffered a worse unemployment rate in July, of 14%. This was still better than young, male veterans (ages 18-24), who had an unemployment rate of 21.9% in 2010.

The law provides a variety of methods to turn this situation around. Among its key provisions are its increases in education and training, job counseling, transition and placement assistance, and additional help for disabled veterans.  It also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to clarify what constitutes a benefit and a hostile work environment.  One of the biggest boosts toward the goal of getting veterans employed is likely the tax credits to be given to employers hiring veterans. The law would provide a tax credit of up to $5,600 for hiring veterans who have been looking for a job for more than six months, a $2,400 credit for veterans who are unemployed for more than 4 weeks but less than 6 months and a tax credit of up to $9,600 for hiring veterans with service-connected disabilities who have been looking for a job for more than six months.

 

Willful Disregard of USERRA Carries Substantial Penalties

Posted by Susan M. Webman on September 29, 2011

Two appellate courts, in the space of days, ruled on cases under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Both affirmed substantial awards to the employee because of the employer’s willful disregard of the law. Both involved pre-service jobs with pay that included commissions. Fryer v. A.S.A.P. Fire & Safety Corp., No. 10-2047 (1st Cir. Sept. 9, 2011); Serricchio v. Wachovia Securities. LLC, No. 10-1590 (2d Cir. Sept. 13, 2011).

These cases make clear that employers should promptly reemploy a returning servicemember into the proper “escalator” position, i.e., one with the “seniority, status and pay” of the pre-service position. While that may seem an easy obligation, it often is difficult to identify that position, particularly where the pre-service job involves commissions and changing markets. That the market may have changed and that there is not a certainty as to what would have occurred to the position during a servicemember’s absence does not establish a legal defense.

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USERRA: Veteran Wins on Appeal, Again

Posted by Susan M. Webman on April 21, 2011

The Federal Circuit has twice given Richard Erickson another shot at his claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Erickson_v._USPS.pdf, No. 2010-3096 (Fed. Cir. Feb. 28, 2011). This time, the question is whether Erickson abandoned his job at the Postal Service (USPS) to be in the National Guard, thus foreclosing his discrimination claim. Erickson was absent for military service for such long periods that he served for more than 22 months from 1991 to 1995 and he only worked for four days between 1996 and 2000, when he was terminated. During that absence, he told a USPS labor relations specialist that he preferred his military service over the USPS and would not report back to work until he completed the current tour of duty in September 2001. He was removed for excessive use of military leave.

In reviewing whether Erickson’s antidiscrimination and reemployment rights claims were viable, or whether he waived his rights, the court discussed what it takes for a servicemember to abandon a civilian career in favor of a military career, thus relinquishing USERRA rights. It reviewed factors that support an inference that a civilian job was abandoned, as covered in earlier cases.

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