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general / Employment

Employing veterans in California

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With their ethos of accomplishing the mission, those who have served in the armed forces make very good employees. Veterans tend to be diligent, hard-working and have a strong work ethic. They work well in teams and have an inbuilt sense of duty. Adding to their value, veterans are often cross-trained in multiple skills and have experience performing various tasks. In the military, they received state-of-the-art instruction involving the latest technological advances.

Probably because of what happened to our veterans after the Vietnam War, when they were sometimes shunned and rejected, the California Legislature has passed numerous statutes favoring veterans. One such statute states: "The opportunity to seek, obtain, and hold employment without discrimination because of ... veteran status is hereby recognized as and declared to be a civil right." Gov. Code Section 12921. Another statute, this one aimed at getting veterans who have gone sideways with the law back on track and employed states: "It is in the interests of justice to restore a defendant who acquired a criminal record due to a mental health disorder stemming from service in the United States military to the community of law abiding citizens." Pen. Code Section 1170.9. To encourage employers to hire veterans, the Legislature has given a tax incentive to hire a veteran as a full-time employee. Rev. & Tax Code Section 23626.

Attorneys involved in employment litigation must be aware of the many safeguards provided veterans who are job applicants and employees. This article will briefly discuss some of the unique circumstances that might occur when a veteran applies for a job or already holds a job.

Is the job applicant or employee a veteran?

For purposes of applying the law, whether the job applicant or employee is a veteran may depend on the circumstances. In alphabetical order, the branches of the service are the Air Force, Army, Coast Guard and Navy. The Marines are part of the Navy, but are often considered a separate branch of the armed forces. There are also the Reserves and National Guard, and that's where matters can get confusing.

All branches of the United States armed forces have Reserve components. Reservists are military personnel who serve on a part-time basis. The Reserves are always under the control of the president. One can join the Reserves without any prior military service or after having served in the military. Reservists work alongside their active duty counterparts, working a minimum of one weekend per month and two full weeks a year. Reservists can be activated or mobilized to serve overseas.

National Guards are primarily controlled by the states, generally under command authority of the state governor, though the federal government picks up much of the bill. In 1878, Congress passed the Posse Comitatus Act which makes it a crime for anyone in the federal military to enforce civilian law. The law was originally intended to prevent federal troops from enforcing Reconstruction-era race laws in the South. Governors, however, may call up the National Guard troops of their state to serve as a kind of adjunct police, such as enforcing curfew laws during civil riots or after a hurricane. Nonetheless, National Guard troops may be federalized, under Title 10 U.S.C., should the president declare a national emergency. Then command authority over the state National Guard troops shifts from the state governor to the president of the United States. That happened when we went into Iraq. Part-timers who normally trained one weekend a month and two additional weeks a year, were called to active duty for two-year stints. And the federal government can go one step further: A full mobilization is possible if Congress declares a national emergency. At that point, the National Guard may be called to duty for the length of the emergency plus six months.

How can the issue of who is veteran get confusing? Let's look a few statutes. In criminal matters, some statutes apply to those who saw service in "the United States military." Pen. Code Sections 1001.80, 1170.9, 1170.91. The arraignment statute, however, applies to "individuals who have active duty or veteran status." Pen. Code Section 858. The Fair Employment and Housing Act (FEHA) simply states "military and veteran status." Gov. Code Section 12920. Another part of the Government Code defines a veteran as "any person who has served full time in the armed forces in time of national emergency or state military emergency or during any expedition of the armed forces and who has been discharged or released under conditions other than dishonorable." Gov. Code Section 18540.4. Yet another section says, "'Armed forces' means the United States Air Force, Army, Navy, Marine Corps, and Coast Guard." Gov. Code Section 18540.

Thus, a person who served in the National Guard, but who was never deployed by the federal government may or may not be covered by some of the statutes. Even though Reservists serve under the president, if they have never been activated or mobilized, they, too, may or may not come under some of the statutes.

The veteran job applicant or employee may have a criminal conviction

Whether or not a job applicant or employee is a veteran, California has statutes relating to an employer's consideration of criminal histories. No public or private employer may ask for information concerning an arrest or detention that did not result in a conviction or about a conviction that was dismissed or sealed. Lab. Code Section 432.7. Employers with five or more employees may not inquire about a job applicant's criminal history until after a conditional offer of employment has been made, and if the history is an arrest without a conviction or participation in a diversion program, the employer may not consider that information at all. Gov. Code Section 12952.

But if the applicant or employee is a veteran and the employer finds out about a conviction, there is yet another consideration. That is, under one statute, if a veteran had been convicted of a felony and thereafter had the conviction dismissed, the veteran "is not obligated to disclose the arrest on the dismissed action, the dismissed action, or the conviction that was set aside when information concerning prior arrests or convictions is requested to be given under oath, affirmation, or otherwise." Pen. Code Section 1170.9. In other words, the Legislature has given its blessing for a veteran to sometimes lie about his or her criminal history, even under oath.

Many employers conduct criminal background checks on job applicants. One can easily imagine a veteran's criminal conviction being set aside pursuant to Penal Code Section 1170.9, and the employer's investigator copying a record of conviction before a court clerk or the California Department of Justice has actually effectuated the court's order to seal or set aside that record. Under those circumstances, a veteran who was not hired or fired for either having the criminal conviction or lying about having it, may have the makings for a civil suit under FEHA, and its array of damages and other remedies. See Gov. Code Sections 12920.5, 12926, 12964, 12965, 12974, 12989.2.

An employer may not deny a job opportunity or benefits to a veteran

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. Section 4301 et seq.) prohibits employment discrimination and is geared toward eliminating or minimizing the disadvantages to civilian careers and employment resulting from serving in the military. Employers may not subject employees who miss work due to absence for military duty or training to loss of seniority, status, pay or vacation. 38 U.S.C. Sections 4311-4319. In Staub v. Proctor Hospital, 131 S. Ct. 118 (2011), the U.S. Supreme Court heard a case in which the supervisors of an Army Reservist were hostile to his military obligations. The plaintiff contended he was fired as a result of that hostility and brought an action under USERRA in which a jury awarded him $57,640 against the employer. The federal intermediate court reversed, finding instructional error because the jury was told a corporation can act only through its employees and the animus shown toward plaintiff due to his military obligations was not shown by the person who fired him. The high court said it was obvious the plaintiffs' supervisors acted within the scope of their employment when they took the alleged actions against the plaintiff, and the decision of the federal appeals court was reversed.

In Paxton v. City of Montebello, 712 F.Supp.2d 1007 (C.D.Cal. 2010), Army National Guard members brought an action against a city for violation of USERRA, claiming the city failed to employ them as police officers upon their return from active duty, with the same seniority and rate of pay, and by retaliating against them for taking military leave. The court awarded them damages in the amount of their annual leaves along with any interest thereon, costs and attorney fees.

California statutes also provide some protections to returning members of the armed services. Mil. & Vet. Code Section 394. In Haligowski v. Superior Court, 200 Cal. App. 4th 983 (2011), the plaintiff was terminated when he returned after serving six months in Iraq. He was allowed to proceed against the employer, but not his supervisor. Under FEHA, however, another employee is personally liable for any prohibited harassment, regardless of whether the employer knows or should have known of the conduct. Gov. Code Section 12940(j)(3).

When a full-time employee is absent from work while performing active service in the National Guard of any state, the employer, if it is not "impossible or unreasonable," shall restore the employee to the former position or to a position of similar seniority status and pay, without loss of retirement or other benefits. Mil. & Vet. Code Section 395.06. That statute provides the employer shall not discharge the former employee from the position without cause within one year after restoring the person to the position. Similar mandates cover part-time employees returning from National Guard duty. A specific mechanism for forcing the employer to comply with these requirements is set forth in the statute, and, further, that a city prosecutor may appear and act as the employee's attorney.

FEHA prohibits discrimination in employment on account of military or veteran status. Gov. Code Section 12920. It provides that it is an unlawful employment practice for an employer, because of military or veteran status to refuse to employ, hire, train, select or discharge a person from employment. Gov. Code Section 12940. The Department of Fair Employment and Housing may bring an action to eliminate an unlawful employment practice, and if the department does not proceed with an action, an individual aggrieved person or a class of aggrieved persons may sue under FEHA. Gov. Code Section 12965.

Benefits due a veteran employee may be different from those due other employees. For example, if a veteran works as a state officer or employee and has a service connected disability rated at 30 percent or more by the Department of Veterans Affairs, the veteran may be entitled to more sick leave than other employees. Credit for the additional sick leave is given immediately after the veteran is given the disability rating or on the first day of employment, whichever is later. Gov. Code Section 19859.

A veteran suffers from a malady as a result of of military service

Not all wounds are obvious. Re-entry into marriage, family, jobs and the community presents challenges for returning soldiers and their families. Actions that are expected and normal in the military are often unacceptable, and sometimes even criminal, in civilian life. Logically connected to combat situations are hypervigilance, increased startle response, depression and emotional numbing. These manifestations don't fit well in the workplace. Worse are Post-traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Military Sexual Trauma (MST) as well as a myriad of mental health disorders that can make the transition into the civilian world quite tough.

Psychiatric casualties of combat are as old as war itself. PTSD was officially acknowledged as a disabling psychiatric injury in the third edition of the "Diagnostic and Statistical Manual of Mental Disorders" in 1987. PTSD is recognized as a human response to trauma that is beyond the capacity of a particular individual to manage. Physical problems may also result from combat injuries. Sometimes the injuries are visible and sometimes they are not. TBI usually results from a jolt to the head or body, such as an explosion. TBI may affect brain cells and can cause short-term or long-term problems. MST can have long term effects on victims.

It is possible PTSD, TBI, MST or some other military-related malady may rear its ugly head while a veteran is employed. Under FEHA, in addition to the fact that it is against public policy to discriminate in employment on the basis of military or veteran status, an employer must not discriminate on the basis of physical disability, mental disability or medical condition. Gov. Code Section 12920. Reasonable accommodations might be in order if a veteran is experiencing a military-related disability. Gov. Code Sections 12926, 12926.1, 12940, 12940.3.

Family members of veterans may require an accommodation

Suppose an employee has a family member who was in the military and the family member who is a veteran has a disability. Suppose further the veteran in the family sometimes suffers from anxiety episodes in the form of nightmares as a result of PTSD that require the employee to provide comfort or care. Lastly, suppose the employee is still able to perform the required job duties, but sometimes might need to work through lunch to make up for work time missed in the morning. Would that employee be entitled to an accommodation for the disability of the family member who is a veteran? Maybe.

In Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028 (2016), an employee's son required daily dialysis and the employee was the only person in the family who could administer it. For several years, his supervisors scheduled him so that he could be home at night for his son's dialysis. When a new supervisor took over, the plaintiff was terminated for refusing to work a shift that did not permit him to be home on time for his son's dialysis. The employee sued his employer under FEHA, and the trial court granted the employer's motion for summary judgment.

Under FEHA, the definition of disability includes a person who is associated with a person who has a protected characteristic, such as a disability. Gov. Code Section 12926(o). In Castro-Ramirez, the Court of Appeal reversed summary judgment in favor of the employer with regard to the FEHA claim of disability discrimination because the disability from which the employee suffered was his association with his disabled son.

What if another employee claims gender discrimination when an employer recognizes veteran status?

It should come as no surprise that most people in today's military are men, although the number of women in the military is increasing. According to a Council on Foreign Relations report, in 2016, about 20 percent of the Air Force and less than 8 percent of Marines were women. The other branches were somewhere in between. During former times, the percentage of women was much less, so the number of male veterans far outnumbers women veterans.

FEHA prohibits both gender discrimination and veteran status discrimination. Suppose in today's workplace, a woman non-veteran claims gender discrimination when a male veteran is given a job. Well, the Legislature must have also thought of that possibility. FEHA states that nothing "relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection." Gov. Code Section 12940(a)(4). FEHA also states that an employer is not prevented from identifying members of the military and veterans for purposes of awarding veteran's preference as permitted by law. Gov. Code Section 12940(p).

Placing the court and other parties on notice that a party to an employment dispute is a veteran

It may be advantageous to both an employee and an employer to "officially" place all parties on notice of a litigant's veteran status. The Judicial Council has forms relating to present and former members of the military for both mandatory and optional use. These forms may be found here. Form MIL-100, an optional-use form, may be used in any type of case to give notification of military or veteran status. It may be filed by a party or someone else on that person's behalf. Once filed, the court and the parties are on notice that a current or former member of the military is involved in the case.

Conclusion

Lawyers might want to keep in mind that what appears to be a run-of-the-mill employment situation may be anything but. When veterans are involved, the usual concerns might not apply.

#388

Ben Armistead


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