Veterans and the ADA: A Guide for Employers

Each year, thousands of military personnel stationed around the world leave active duty and return to jobs they held before entering the service, or begin the search for new jobs. Recent veterans report high rates of service-connected disabilities (i.e., disabilities that were incurred in, or aggravated during, military service).[1] About twenty-five percent of recent veterans report having a service-connected disability, as compared to about thirteen percent of all veterans.[2] Common injuries incurred by these veterans include missing limbs, burns, spinal cord injuries, post traumatic stress disorder (PTSD), hearing loss, traumatic brain injuries, and other impairments.

There are several federal laws that provide important protections for veterans with disabilities who are looking for jobs or are already in the workplace. Two of those laws — Title I of the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) – protect veterans from employment discrimination. Title I of the ADA, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), prohibits private and state and local government employers with 15 or more employees from discriminating against individuals on the basis of disability.[3] USERRA has requirements for reemploying veterans with and without service-connected disabilities and is enforced by the U. S. Department of Labor (DOL).

This guide describes how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities, and briefly explains how protections for veterans with disabilities differ under USERRA and the ADA. The guide also provides information on laws and regulations that employers may find helpful if they want to make recruiting and hiring veterans with disabilities a priority.

Read the entire guide from the US Equal Employment Opportunity Commission (EEOC).

Are you a veteran who feels your employer is not complying with the ADA?  The Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to a competent  attorney experienced with handling ADA issues in employment law.  Call 603-229-0002 or request an online referral.

New Guidance on Using Criminal Background Checks

In a press release dated April 25, 2012, the EEOC Commission issued enforcement guidance on employer use of arrest and conviction records.

PRESS RELEASE
WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII). The Commission today voted 4-1 to approve the guidance document.  The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov.

“When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance.  We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien.  Chair Berrien added, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.  The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago.  The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII.  The Commission also held public meetings on the subject in 2008 and 2011.  The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991.  The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Among other topics, the guidance discusses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its web site at www.eeoc.gov.

The Lawyer Referral Service of the NH Bar Association can refer you to qualified and experienced attorneys to assist you with your employment law issues.  Call 603-229-0002 or request a confidential online referral.

 

Does Your Business Own Its Social Media Accounts?

When an employee creates and maintains a social media account on behalf of his/her employer, what happens to the account(s) when the employee is terminated or resigns?

The world is closely watching a federal case in the Northern District of California where a mobile news and reviews resource company, Phonedog, is suing a former employee Noah Kravitz (or independent contractor, depending on what news report you read) over who owns a Twitter account that was started in association with PhoneDog, and is now being used by Kravitz as his own Twitter account. The issues drawing so much attention include who owns a social media account – the employee who posts on it, or the employer on whose behalf the employee was posting. The other issue is what value, if any, can be placed on Twitter followers (or, by analogy Facebook likes), when social media attracts people who are portable and not “owned” by the social media account.

The crux of the lawsuit is that Kravitz was paid as a product reviewer and video blogger for PhoneDog from April 2006 through October 2010, and that this position included posting tweets on a Twitter account called @PhoneDog_Noah. After Kravitz left PhoneDog, he changed the name of the account to @noahkravitz, and kept its followers instead of relinquishing the account and its followers over to PhoneDog as was requested of him.

Michelle Sherman, Esq.  at JDSupra.com gives the following advice to employers:

In general, companies should to the greatest extent possible register social media accounts in their own names or through a senior marketing person and/or social media manager if the account needs to be in the name of a person. Further, on social media accounts such as Facebook pages, where you can have more than one administrator, companies should take advantage of this option and have several administrators. Having several administrators, and asserting control over the account, is another way to demonstrate “ownership” of the account, and also avoid some of the problems experienced by PhoneDog.

Read the full article by Michelle Sherman, Esq.

If you are an employer with questions about issues regarding your employees, past and present, the Lawyer Referral Service of the NH Bar Association can refer you to competent, licensed and insured attorneys who specifically represent employers. Call 603-229-0002 or request an online referral.

Can I Be Fired While On Maternity Leave in NH?

According to the NH Commission for Human Rights, you cannot be fired or laid off while on maternity leave if it’s related to your temporary disability; however, you may be fired or laid off from a general and legitimate lay-off for performance requirements.

What else does the Commission say about the rights of pregnant employees?

1. Is a pregnant woman entitled to maternity leave?

Yes, an employer must grant a female employee leave for the period of time she is physically disabled due to pregnancy, childbirth or related medical conditions.

2. Is there a set period of time for maternity leave?

No, there is no set period of time for maternity leave. It is based on the period she is disabled as determined by a physician, usually the employee’s personal doctor.

3. Is the employee entitled to full pay while on maternity leave?

The general rule is that pregnancy must be treated in the same manner that the employer treats other temporary physical disabilities. Therefore, if the employer continues to pay other temporarily disabled employees, it must pay pregnant women. If the employer requires use of vacation and/or sick leave for temporary disabilities, then it may require the same for pregnancy.

4. Is the employee entitled to her job back after she recovers from childbirth?

When the employee is physically able to return to work, her original job or a comparable position must be made available to her by the employer unless business necessity makes this impossible or unreasonable.

5. If the position is filled by another employee while the original employee is on maternity leave and the employer prefers the temporary replacement, can the employer refuse to provide the original job for the returning employee?

No, any change in position for the returning employee must be made for reasons of business necessity. An employer’s preference for one employee over the other cannot be a factor in this decision.

6. Can an employee be laid off or fired while pregnant or on maternity leave?

No, an employee cannot be laid off or fired while pregnant or on leave for reasons related to her temporary disability. However, an employee while pregnant or on maternity leave is not immune from a general and legitimate lay off of employees for performance requirements.

To find out more about rights for pregnant employees, go to the NH Commission for Human Rights.

If you believe you have been discriminated against by your employer because of your age, sex, sexual orientation, race,  physical or mental disability,  religion or pregnancy status, contact the Lawyer Referral Service.  LRS can refer you to competent attorneys who specifically handle discrimination matters in New Hampshire.  Call 603-229-0002 or request an online referral.

2010 NH Workplace Deaths Lowest in the US

As reported by Kathleen Callahan, in the NH Business Review, December 16th, 2011: 

“New Hampshire had the fewest number of workplace deaths in the country in 2010, according to the Census of Fatal Occupational Injuries.”

“Five people — all men — died on the job in New Hampshire last year, which was the fewest number of workplace fatalities in the Granite State since the U.S. Bureau of Labor Statistics began tabulating them in 1992.”

“That’s one fewer than the six who died on the job the previous year, and is down significantly from the 23 recorded in both 1997 and 1998 — the state’s highest years on record since 1992.”

To read the entire article, go to http://www.nhbr.com/businessnewsstatenews/943442-257/n.h.-workplace-deaths-lowest-in-u.s.-in.html

If you have been injured on the job, you may be entitled to Workers’ Compensation.  LRS can refer you to competent attorneys who specifically handle Workers’ Compensation matters.  Call LRS today at (603) 229-0002 or request an online referral.

 

What is Sexual Harassment?

With all the controversy in the news these days surrounding the sexual harassment claims against a presidential candidate, LRS decided to research  just what IS sexual harassment? 

The NH Coalition Against Domestic and Sexual Violence defines it as “any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. Any conduct of a sexual nature that makes an employee uncomfortable has the potential to be sexual harassment.  Given this broad definition, it is not surprising that sexual harassment comes in many forms.” 

For more information visit the Coalition’s website at http://www.nhcadsv.org/sexual_harassment.cfm 

If you believe you are a victim of sexual harassment in your workplace, or if you have been accused of sexual harassment, the Lawyer Referral Service can help by referring you to a New Hampshire attorney who has experience handling either side of this emotional legal issue.  Call (603) 229-0002 or request a referral online at https://www.newhampshirelawyerreferral.com/contact-us

How to Start a Business in New Hampshire

“The New Hampshire Business Resource Center and the International Trade Resource Center offer resources to enhance the economic activities of the state through business attraction outreach, in-state business expansion efforts, and facilitation of government and international sales.”

For more information and links to many resources such as Business Assistance Programs, Emergency Management Tools, and Energy Efficiency Programs, go to the NH Business Resource Center  at  www.nheconomy.com/business-services/start-a-business-in-nh/.

Whether starting a small home-based business or a corporation, your business must comply with state laws and regulations. There may be licensing and permit requirements to consider, or zoning and environmental regulations. If you plan to hire employees you also need to be aware of federal and state labor laws regarding benefits and wages, and discrimination.

The Lawyer Referral Service can refer you to an attorney who can assist you in starting your business, from sole propietorships to corporations and franchises. For more information call 603-229-0002 or fill out the Lawyer Referral Request Form at

https://www.newhampshirelawyerreferral.com/contact-us

LawLine: Free Legal Advice – 800-868-1212

Do you have a BRIEF LEGAL QUESTION? LawLine, the NH Bar Association’s free legal hotline is held on the second Wednesday of each month, from 6 – 8 pm.

Volunteer New Hampshire attorneys will take calls from the public and will give brief legal information and advice. This is a FREE public service. Call 1-800-868-1212.

Do you have more than a brief legal question and suspect you may need an attorney to represent you?  The NH Lawyer Referral Service can refer you to a competent local  attorney who handles your type of legal matter.  Call (603) 229-0002 today or fill out the Lawyer Referral Service request form at:  https://www.newhampshirelawyerreferral.com/contact-us.