USERRA Violation?

Elizabeth

We are a small Ohio city. Our Civil Service Commission is denying a Police applicant the opportunity to take a physical agility test (required part of Civil Service testing process) because he will be away at reserve duty the weekend of the test.

This particular applicant finished 2nd out of 182 applicants on the written portion of the test. (Quite an achievement). I feel that the Civil Service Commission could allow this guy to take this same test an another facility in another city sometime in the near future as a reasonable accommodation. The agility test is only a pass/fail type of test and normally only 1 or 2 applicants are unsuccessful. It is not possible that this physcially fit soldier could not pass this simple test.

The Commission feels that any variant in the testing conditions (weather, etc.) could invalidate the test if anyone filed a complaint. I say, err on the side of the soldier - I'd rather defend an accommodation than a denial of his employment opportunities.

Does anyone know USERRA well enough to know if this situation would constitute a violation of this man's rights?

Any help would be appreciated. [Hey, I'm fighting for the guy who's fighting for me].

Elizabeth

sonny

[font size="1" color="#FF0000"]LAST EDITED ON 10-28-04 AT 12:43PM (CST)[/font][br][br]He is an applicant, not your employee so am thinking USERRA would not apply

Regardless, we are a small municipality and have been in this situation before. We have accomodated.

Don D

Emotion aside, he is being denied because he is unavailable to take the test at its set time, not because of his national guard status. USERRA does not require an accommodation in this case.

USERRA makes it illegal to discriminate against people because of their military or veteran status. That doesn't extend to their being unable to compete in the process established for applicants, because of their affiliation with the military. There is no requirement in USERRA that employers accommodate guard members by disrupting the established application procedure.

By the way, as many lawsuits as police and firefighter applicants and employees have brought in the past ten years, I can see another one coming if the procedure for application and testing is changed in your case.

pork1

ELIZABETH: In my opinion and from my understanding of USERRA, Uniformed Services Employment and Reemployment ACT protects those persons seeking employment, as well as those seeking reemployment. Under todays conditions the needs of the military will outway any ones arguement to deny male or female the right to employment based on civilian requirement. We are a private employer who has experienced the wild stretch of the words in the law. It is not a comfortable feeling to be under the the pressures that can be used against any employer not willing to accomodate in favor of the military/civilian person wanting to be employed by either public or private employer it is a losing game from the get-go.

I hope you win your case and if you don't, I would not hesitate to advise the person to seek legal help, get an attorney, and they don't have to be an experienced attorney, but one who has a shingle to hang somewhere!

The city attorney should be advised of this situation and I would bet he/she will strongly advise the city administration to give way to the logic.

PORK

System

USERRA does protect job applicants from discrimination based on their military service, but I don't think it requires an accommodation. But if you've ever accommodated any other applicants during any portion of the application process, be prepared to explain the difference -- both in court and on the 6 o'clock news.

Good luck.

James Sokolowski
HRhero.com

Shadowfax

USERRA does indeed apply as it forbids an employer from discriminating against an employee w/regard to hiring, retention. promotion etc.(38 USC 411) I think it would not take much imagination to get to the courthouse steps in your case. While there is no provision of accommodation, I think one would be advisable under the circumstances. If wrong, the damages can be significant including atty fees and liquidated damages in addition to the other usual damages. The claim is automatically in Federal court.

pork1

I AGREE; do a google on USERRA and get to the law and I believe it is section 3411 sub paragraph (a) that lays it out clearily. Print that page off and give it hi-lited in yellow, pink, or red to whom ever you wish. In very few words it is clear to me that a reasonable acception prior to denying this applicant the right to be employed is the right course of action. (A recent military PT test should be recognized as a match for the city requirement).

Sorry Don, but we have crossed guidance on the forum, once again. You are right 99% of the time and right on target, but this one, appears correct from our side of the street.

PORK

Don D

It may surprise some of you to know that municipalities all across the country are under various federal court orders to maintain certain application and promotion procedures specifically addressing fire and police departments. This applies in some cases to the testing of applicants as well as present employees. These orders apply to the court agreed upon grading and application systems and a condition of these orders is that they not be be deviated from at any time for any reason without the specific approval of the judge so ordering.

I wouldn't want to be the city personnel manager who decided on his own hook to allow a guard member to take a test at a time different from that of all the other candidates, under different conditions, not having the burden and stress of group contest and giving the appearance of favoritism at worst and unequal advantage at best.

I doubt a common, street-corner barrister would be one to field this issue. Run it by an attorney with specific federal law experience. I can almost guarantee you that no city council will retain a personnel manager who violated the order of a federal judge and winds them up back before him on his golfing day.

pork1

But Don, would it not be a wise and professional City Personnel Manager that would take this situation to the city attorney with current reference of the Federal Law that says "we shall not discriminate against anyone connected with the military the right to become employed". The City Attorney and the City Personnel Manager could then proceed to the judge and seek court clarification, if that be the case in this cities jurisdication. I agree it is not wise to go alone but when the issue in law is clear and even with a court's order the City must seek clarification and joint protection of the same judge, who as you write, has "trumped" this Federal Law not to deviate from the testing procedures.

Now the old forum is back with good intentions to help the forum seeking advice. What say you my friend!

PORK

WT

There is a piece of information missing. On what basis, or with what excuse would the commission permit an alternate test date? A very simplified reading of USERRA would be that a person cannot be disadvantaged in employment, promotion, or application for employment simply because of his or her military obligations. Civil Service in this state will schedule alternate dates for certain legitimate excuses. For example, our power plant is a 24 hour operation. We cannot permit all our operators to be gone at one time to take a test needed for promotion as we cannot shut down the power plant. If your commission (or state) will not accept any excuses, then the reservist is being treated equally. However, if certain excuses are accepted and ordered military service is not, then this person is being disadvantaged due to his military obligations.

Don D

I attempted for that to be part of my initial point, that a city has no 'right' or authority to alter the standard procedure and practice JUST FOR a reservist or JUST in deferrence to a perception of the intent of USERRA or a warm and fuzzy feeling about military service.

And, yes, Pork, my friend, this should all be pointed out to the city attorney who I hope would have the wisdom to run it by one who has practiced before the federal bench.

Even IF this municipality is not under a court order, the appearance of a shoddy or vascillating testing/application procedure is the only reason the rest of those municipalities ARE.

Elizabeth

Thank you all for your great advise. I will look up the sections of the law that you've cited.

Our Civil Service Commission has never allowed any exceptions, but there's a first time for everything and no better time than the present for supporting our armed service members. I feel that the Commission could quickly put together language to accept recent military PT test (which are much more rigorous)as fulfilling the requirement in this case or could allow applicants to take a similar test in a neighboring city within a certain time period prior to finalization of the certified list. That way the 'exception' is well defined.

To Don We are a home-rule city and our Commission has full authority to create their own rules and regulations so I would think they are equally authorized to make exceptions as long as they are fair and compliant with federal law.

PS: I'm not worried about my job, Our City Council has never been particularly supportive of me anyway since I hold a political appointment. Bring 'em on. I fear them not. (I raised a Marine).

Elizabeth

pork1

ELIZABETH: Congradulations, glad we were able to help, I am just waiting on my call-up orders to return after being inactive for 19 years. Probably a pipe dream, but who knows I could go command the local ROTC detachment and do my annual PT test with flying colors.

PORK

Elizabeth

PORK: Hey, what is it with you military guys. You consider it a pipe dream to be recalled after 19 years??? - you're crazy - you sound just like my son (he's crazy too - it's required in the Marine Corps). I mean all that affectionately of course. America owes a great debt to guys like you and the many who follow in your boot steps. Thanks for serving.

Elizabeth

Parabeagle

Elizabeth, Pork's pipe dream would be my nightmare and I haven't been out of the loop anywhere nearly as long as he has! x;-)

pork1

PARABEAGLE: You noticed of course my qualifier, to command the local University ROTC detachment while that young Infantry "buck" current commander could go over there and be of some use to the cause, while my gray hair would simply grow more grey. I keep it military short anyway, but I'm looking older and older. I was glad to serve and would do it again. I came from a military family, father, brother, and brother in law are all vet retirees. Elizabeth I was raised to the noble cause, I did not know anything else and neither did my brother, and we taught our brother-in-law what the right thing to do was or else no sister.....

We'll folks the week is coming to an end and before we know it we will have a new President and I'll leave it there.

May we have a Blessed remaining week and a great Blessed one next week.

YA'LL eat more PORK this week-end the price for us is falling, to many "HOGS" on the market floor, and we need to get them ready for next weeks celebration regardless of who wins!

PORK

Parabeagle

Okay, Pork. You handle the ROTC det, I'll manage the NCO Club and between us we'll free up two youngsters who can go fight the good fight. x;-)

TN HR

That's OK, Beagle runs the NCO Club, Pork can run the ROTC Detachment, The Don can replace the Staff Judge Advocate and I can be in charge of Remedial PT. These fat kids today going into the military haven't spent much time away from the playstation.

Heh, heh, I would PT their you-know-what into the ground the way the Black Hats did to us at Airborne School in Fort Benning. I'd even have them ditch the silly PT gear and run 'em in BDU's and boots.

Don D

Elizabeth: Back to the serious side of your inquiry and the responses offered. I sensed in your first post and confirmed it in your later posts that you were not entirely unbiased and had it set in your mind that it would be the thing to do; and, your last post pretty much sums up your feeling that the guard member should have some degree of special dispensation of the rules written for him because of that status. Not only that, you feel that the guard PT is more rigorous than the test and should substitute. You don't seem to be concerned with the fallout of making such a decision, which would include the fact that a precedent would be set and the challenges that might follow. So, I should not have offered what I consider to be a reasonable cautionary response based on a reading of the law and a knowledge of government programs.

I can tell you with assurance that the question does not revolve around one's respect for the military or an employer's decision to accommodate one group and not another, nor does it revolve around our good feelings about giving special preference to guard/military applicants. It's not a simple matter of Semper Fi or being this applican't advocate. But, you've said you're fiesty, so, good luck with your decision.

Elizabeth

You're right, I'm not unbiased. And always willing to take a stand if I think something right and fair.

Think about it, this guy had no idea of when the agility test was to take place. He was present and highly successful for the most important test - the written exam. He finished second and once military credits are added, he will likely be first. Now imagine that is you. You've studied hard for your dream job and when all your efforts finally pay off you are denied an employment opportunity because the employer so inflexible they can't make an exception for you mandatory military obligation. This guy cannot simply ask for the day off work or reschedule his doctor's appointment. He is being denied what is for him, the chance of a lifetime (it's not easy to finish 2nd out of 182) because he is required to attend military training. That goes against the spirit of the laws that were specifically designed to ensure equal opportunities to members of the armed forces. A willingness to fight and die so that some inflexible idiot can live free should not be cause for denial of employment. Taking this weenie little agility test is no big deal. I'm just saying that this Commission (three local ding-dongs that don't know anything about employment law) can lighten the heck up!

Elizabeth

Don D

You have a decision to make. Do you want to represent and serve as applicant advocate or do you intend to carry out the role of HR Representative for your employer? It is wholly inappropriate for you to be assumed to be carrying out the role of HR Manager for your employer, yet advocating and sponsoring special rights for special classes of applicants. You have a large degree of conflicted allegiances going on here. Good luck to you in your quest.

jennifer jo

Elizabeth, hear hear!! I agree wholeheartedly with you and your point was so eloquently put. HR people should not be just "policy" people, but people in the organization who can be relied upon to look at the whole picture and exercise good judgment. I agree that it's the spirit and intent of the laws that are important, not just the semantics. Good luck!

Don D

Ahhh Grasshopper; but when policies and laws conflict with personal opinions and feelings, something generally gives, and it's not usually the policy or the law. x:-) peace.

Elizabeth

Thanks for all your feedback. I am frustrated to report that our Civil Service Commission refuses to grant this exception in spite of our Law Director's opinion to allow it. Our Mayor is trying to stay 'neutral' (I can't tell you the number of times I am called to support her opinions...) so it's tough, but I'm still fighting. If nothing else works, perhaps the newspapers will 'find out' about it and maybe they can add some pressure. Sorry if I sound a little unprofessinoal on this one, but I believe we should fight for those who fight for us.

Elizabeth

pork1

ELIZABETH: Don't be frustrated for it is also the HR's job and responsibility to protect the company and in your case the actions of the City from "wrong doings". You have done your best to give good sound advice and now you must move on and feel good about today for there will be a tomorrow. With the stroke of a finger the concerned citizen/soldier has the ability to contact EEOC or The Department of Labor, Veterans and Training Service Department to press for his rights and discrimination of his ability to earn an income to take care of his family and to satisfy his dreams. They will act as an omsbudsman and spokesman to right any wrong that may have been done to this individual citizen/soldier. I have been on the receiving in of our state's omsbudsman and they do not listen to logic when they feel like the citizen/soldier has been wronged. They have the ability to proceed to court to force the correction, if that is necessary. Since your legal authority has also recommended an opportunity to compromize and support the police candidate, he will most likely advise the commission to favorably adjust their thinking prior to defending the wrong decision.

PORK

Don D

Pork: My dad was retired Air Force and bounced a quarter off the foot of my bed from the time I was eight. My brother lives in Germany and just retired as an Air Force Colonel. Having said that, and assuring you that I have the greatest respect for people in the service, I feel compelled to tell you that you always respond to these military questions from a terribly biased perspective and not at all from a defensible HR position. It's one thing to support the troops and have warm/fuzzy feelings for returnees and those called up; but, it's quite another to objectively make sound decisions regarding servicemen and women's rights and obligations under the law. Our decisions regarding people in the military must be made in accordance with law and we cannot make those decisions independent of the rights of all other protected groups.

It is not in any company's best interest to mold or bend our policies to enhance the rights and protections of or for people in the military, as much as we might want to do that. x:-)

Elizabeth

Don, You say "It is not in any company's best interest to mold or bend our policies to enhance the rights and protections of or for people in the military, as much as we might want to do that."

I GREATLY appreciate your input on this matter, but I respectfully disagree.

Remember, in this situation, our ‘company’ is a city. We are a representation of our citizens. We are not out to make a profit, but rather to provide a service. To us, the military is not some large federal bureaucracy in Washington. Just as our ‘employees’ are also our residents; and our ‘customers’ are our neighbors, our armed forces are, literally, our sons and daughters and brothers. We have a greater responsibility to humanize our policies than does the typical business entity.

HR Professionals are change-agents – everyday. If we were merely interpreters or enforcers, we could easily be replaced with logical computers and cold-hearted robots. Policies and laws are created in a specific time for a specific purpose. Life changes things. If something is just not right, we can choose to stubbornly dig in and defend the current policy or we can rise up, get creative, and find a better way. Doing so, in my opinion, is in the “company’s best interest” in the long run.

Elizabeth

Don D

You strengthen my point Elizabeth. And, what if I were to feel exactly the same way about the large and growing number of people who protest and picket outside of abortion clinics? Should I find a creative way to give them a leg up in our application process. Does it end with the military or does it begin there? And who is to say about what we should try to be creative?

National Guard

After reading 98% of the previous posts, I have one question. How come the applicant can't re-apply and be scheduled for the next test?

Also, It is not entirely impossible for the applicant to miss one day of her weekend duty and then make that day up.

WT

As far as taking the next test, in our state a test and list can be good for four years. Also, even if another test were scheduled sooner than that, think how disadvantaged a potential hire would be as far as seniority and promotion opportunity if he missed his chance and had to apply later. There are some real problems for the applicant here. However, once again I must remind the Forum that if excuses are not accepted for other applicants, then there is no duty to accept them from this applicant.

National Guard

Well, if she wants the job, she'll reschedule her drill. We all have choices in life to make.