The U.S. Justice Department has reached a settlement with Laborers Local 1149 in Wheeling, W.V., resolving claims the union violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to reinstate U.S. Army National Guardsman Elliot Ferrell as an apprentice laborer after his return from three months of basic training. As a result, Ferrell was ineligible to continue to receive job referrals through the union’s hiring hall.
USERRA gives service members the right to be reemployed in the civilian position that they would have attained if they had not been absent for military service, subject to certain conditions. Under federal regulations, when a union operates a hiring hall that refers employees to jobs with employers, both the labor organization and employers have reemployment obligations to returning service members.
According to a Justice Department complaint filed with the settlement agreement, Ferrell was gainfully employed through a series of job referrals from the Local 1189 hiring hall until his departure for military duty. The complaint alleges that he notified the union of his impending military duty and was told that his obligation to pay dues would be suspended for the duration of his duty. While Ferrell was attending basic training, the union notified his aunt that it had terminated his apprenticeship because one month’s payment of dues was late. Though she immediately sent a check for the full amount owed, the union returned it and refused to rescind the termination.
The union’s action disqualified Ferrell from further hiring hall referrals. Under the terms of a consent decree, which was subject to U.S. District Court for the Northern District of West Virginia approval, the union must pay Ferrell compensation for lost income and further agrees that the hiring hall will comply with its obligations under USERRA, including its reemployment provisions.
“The civilian careers of the men and women in the National Guard should never be adversely affected because they volunteer to serve our country,” says Acting Associate Attorney General Bill Baer. “Through the Servicemembers and Veterans Initiative, the Department of Justice will continue devoting resources to protect the men and women who serve in our Armed Forces from unjust actions and illegal burdens.”
“Men and women who defend our freedom should receive our highest level of gratitude, not face barriers of discrimination,” adds Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division. “The Department will continue to vigorously enforce USERRA to ensure that not only employers, but also unions operating hiring halls that refer employees to jobs, do not violate the rights of service members when they return to civilian life.”
“National Guard members, taking leave to serve our country, must be protected from overt as well as less readily apparent unlawful employment practices upon their return,” affirms U.S. Attorney William J. Ihlenfeld II of the Northern District of West Virginia. “Our office is committed to ensuring that all service members may return to their pre-service employment without demotion or penalty.”
Ferrell initially filed a complaint with the U.S. Labor Department’s Veterans’ Employment and Training Service, which investigated the matter, then referred it to the Justice Department after attempts at resolution failed. The Civil Rights Division has given a high priority to the enforcement of service members’ rights under USERRA.
FEDS ADJUST VETERANS HIRING BENCHMARK
The U.S. Department of Labor has announced that the new annual hiring benchmark under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) is 6.9 percent, down slightly from 7 percent in 2015. According to the Associated Builders & Contractors, the act requires federal contractors to take affirmative action to recruit, hire, promote and retain veterans.
Under final VEVRAA regulations effective March 2014, federal contractors are allowed to establish a hiring benchmark for veterans based on “the current national percentage of veterans in the workforce.” Contractors also can choose to set up an individual benchmark based on a five-factor method:
- The average percentage of veterans in the civilian labor force for the state where the establishment is located for the previous three years.
- The number of veterans who participated in the employment service delivery system in the state where the establishment is located over the previous four quarters.
- The applicant ratio and hiring ratio for the establishment for the previous year.
- The most recent assessment of the effectiveness of outreach and recruitment efforts.
- Any other factor, such as the nature of the job openings or the facility’s location that would tend to affect the availability of qualified protected veterans.