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Navigating the Legal Trenches of Hiring Veterans

With more than 100,000 new veteran hires in the past year, American businesses and the rail industry are striving to lower the high unemployment rate of returning veterans. But with the unemployment rate for the most recently returned group of veterans still at 10.9 percent — higher than any other veteran group and the national average — hiring initiatives such as the White House’s "Joining Forces" campaign and the rail industry’s pledge to hire 5,000 veterans in 2012 hold great promise in returning veterans to the workforce.

Now is a critical time for businesses to hire veterans, but private employers need to consider both the legal benefits and challenges associated with hiring veterans. Employers benefit from hiring veterans in a number of ways, including tax credits. President Obama’s 2011 Returning Heroes Tax Credit and the Wounded Warrior Tax Credit allow businesses to receive $2,400 to $9,600 per veteran hire, depending on the veteran’s circumstances.

While employment laws provide some great incentives, private employers should beware of potential legal pitfalls in the hiring process, such as showing preferential treatment to veterans, targeting recruitment efforts and application retention requirements.

Every business should recognize that private employers generally cannot show preference in the hiring of veterans, although there are exceptions. Title VII of the Civil Rights Act prohibits preference to veterans as unlawfully discriminatory due to the potential disparate impact on female applicants. This is a result of the longstanding federal statutes, regulations and policies that have excluded women or limited women’s eligibility to serve in the armed forces. Consequently, preference in hiring veterans tends to operate to the advantage of men.

There are exceptions to this rule. If the right to veterans preference is created by a federal, state, territorial or local law — as in the states of Washington and Minnesota — private employers can show preference to veterans in their hiring.

In addition to avoiding preference, employers should be careful when writing the job description. Employers should describe the position and qualifications, including physical qualifications. Employers also must comply with the Americans with Disabilities Act, which prohibits discrimination against persons with disabilities. The extent to which a position calls for physical activities should be explicitly noted in the job description.

Employers must also be aware that if companies hire an individual with known physical or mental limitations, the employer is required to provide reasonable accommodations to that employee. As a result, employers may require medical information to substantiate the employee’s need for a reasonable accommodation. An employer is not required to provide accommodations if it would create an undue hardship on the operation of the business due to significant difficulty or expense; nor is it required to reassign essential job functions as a reasonable accommodation.
After creating a job description, employers have many platforms for recruiting. Companies have long recruited employees through traditional channels such as advertising in print and online, job fairs and through industry organizations. But with the social media explosion, employers have increasingly been turning to social media platforms to attract highly qualified veteran job applicants.

By utilizing Facebook, LinkedIn and other social media sites, employers make it significantly easier for applicants to find aggregated information about careers, employment opportunities and job fairs in one site. For many applicants, social media job posts are much more accessible and user friendly than traditional recruiting channels.

While social media is gaining strength as a recruitment technique, employers should be cautious, especially with Facebook, which discloses personal information that a prospective employer should not consider in a hiring decision.

For example, a Facebook page may contain pictures or information about a candidate’s race, gender, religion and national origin. If a potential candidate subscribes to an employer’s page by "liking" it, then the employer would have the ability to view that individual’s Facebook profile, including personal information that would otherwise be protected. This could give rise to a "failure to hire claim" if the candidate could demonstrate that personal information on his or her Facebook page was a factor in the potential employer’s rejection of the candidate’s application.

One effective way to avoid social media-related "failure to hire" claims is to assign different individuals to manage the media page from those making the hiring decisions. That way, those who are making hiring decisions do not have access to potentially protected information about applicants.

After an employer has made a hire, federal law requires employers to retain personnel and employment records pertaining to hiring of applicants for one year from the date the record was made. If a discrimination charge or action has been made against an employer under Title VII or the Americans with Disabilities Act, the records should be preserved until the final disposition of the charge or action. State laws may also impose additional record retention requirements.
For further resources about hiring veterans, visit the U.S. Department of Labor’s website, www.AmericasHeroesatWork.gov, which offers the information and tools that employers need when hiring veterans.

Maisha Shaw and Pamela Nehring are attorneys with Chicago-based Daley Mohan Groble, P.C., a law firm concentrating in the representation of railroad and transportation companies across a wide range of employment, environmental, litigation and other legal matters. For further information about veterans employment issues, contact Maisha Shaw at mshaw@daleymohan.com or Pamela Nehring at pnehring@daleymohan.com.

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