Since the Afghanistan and Iraq wars began, over 30,000 veterans have returned home with service-connected disabilities.  Their return to the labor force has resulted in a rise of employment litigation, including a nearly $1 million verdict against Target Corp., as employers struggle to comply with laws protecting the disabled veterans.  In response, the EEOC recently issued new guidance to employers and veterans on recruiting, hiring, rehiring and accommodation.  The EEOC’s guidance describes how protections under the American with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) differ and answers questions about protections veterans with service-connected disabilities are entitled to when they seek to return to their former jobs or look for new civilian jobs.  Highlights of the alerts include the following:

• Veterans with service-connected disabilities seeking to return to their jobs are supported by stronger protections than non-veterans with disabilities.  For example, under USERRA, employers are required to place veterans in the position they would have had if they had not left, requiring the employer to evaluate possible promotions that may have occurred during the time the employee was absent.  Additionally, if a disability impedes the veteran from performing certain job duties, the employer must provide necessary training or retraining and place the employee in a similar post.

• Reasonable accommodations may be available under USERRA for individuals whose service-connected disabilities may not meet the ADA’s definition of “disability.”

• Employers may only ask an applicant if he or she is a “disabled veteran” if done for affirmative-action purposes.  If an employer seeks to do so, it must clearly state that: (i) the information is intended for use solely in connection with its affirmative action obligations/efforts, (ii) the information is requested on a voluntary basis and will be kept confidential in accordance with the ADA, (iii) refusal to provide the information will not subject the employee to any adverse treatment and (iv) the information will be used only in accordance with the ADA.  Additionally, such information must be kept separate from the application to ensure that confidentiality is maintained.

• An employer may give preference in hiring to a veteran with a service-connected disability over other applicants.

• Additionally, the EEOC provides guidance regarding posting job descriptions, steps employers may take to recruit and hire veterans with service-connected disabilities and the types of reasonable accommodations veterans with service-connected disabilities may need.

If you have any questions regarding implementing the EEOC’s guidance or have other employment law issues, please contact Susie Gibbons at sgibbons@poynerspruill.com or 919.783.2813.