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Friday, December 23, 2011

VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military

Remember back in May when I wrote about a court that said harassing people at work for their military service was not illegal? The case was one where airline pilots who are military members sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.” The 5th Circuit said USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.”

Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.

The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.

Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.

Donna’s tips:

a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.

b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.

c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.

So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.


  1. ahhhhh, then smiles as he comments, "another tool you can use to make the new year even more profitable."

    does this law apply to government employers also or does the law allow for exemptions like religious organizations?

  2. Hi Griper. Merry Christmas! (and/or Happy Chanukah if that's what you're celebrating today). I prefer to look at it as another tool to help employees during economic times where they need all the help they can get.

    It's part of USERRA, so it covers pretty much everyone:

    (d)(1) Employer , except as provided in paragraphs (d)(2) and (3) of this section, means any person, institution, organization, or other entity that pays salary or wages for work performed, or that has control over employment opportunities, including—

    (i) A person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities, except in the case that such entity has been delegated functions that are purely ministerial in nature, such as maintenance of personnel files or the preparation of forms for submission to a government agency;

    (ii) The Federal Government;

    (iii) A State;

    (iv) Any successor in interest to a person, institution, organization, or other entity referred to in this definition; and,

    (v) A person, institution, organization, or other entity that has denied initial employment in violation of 38 U.S.C. 4311, USERRA's anti-discrimination and anti-retaliation provisions.

    (2) In the case of a National Guard technician employed under 32 U.S.C. 709, the term “employer” means the adjutant general of the State in which the technician is employed.

    (3) An employee pension benefit plan as described in section 3(2) of the Employee Retirement Income Security Act of 1974 (ERISA)(29 U.S.C. 1002(2)) is considered an employer for an individual that it does not actually employ only with respect to the obligation to provide pension benefits.

  3. was just teasing you based upon a stereotype of lawyers plus our conversation on a previous post of yours.

    the reason for the question was because there are many organizations that are pacifists by the intent of their existence or beliefs and a lot of what they might say or do may be construed as harassment if a veteran might be an employee of theirs. just wondering how this law would effect them.

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  5. Is protection provided to those who are planning to enlist? i.e., not enlisted yet, but visiting with recruiters, going for physicals, testing/applying for officer training, etc.

  6. Hi Jennie. For the law to protect you, you have to be in service in the uniformed services. "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and include active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which such person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from a position of employment for the purpose of performing funeral honors duty.

  7. Congrats on being named an honoree of the ABA Journal's top 100 law blogs for 2011!

  8. Thanks George, and welcome! I appreciate your comments.

  9. What if an employeer gives an disabled veteran more than one urine test a month and then marks the last form as possible suspesion/cause. Does a disabled veteran have any recourse for legal action? this employer also has me under a arbutrary agreement for employment.dman73165@yahoo.com.

    1. Hi David. Your question will be answered August 9 here: http://employeeatty.blogspot.com/2013/07/answers-to-questions-on-veterans-rights.html

  10. Hi. I was hired by Atlanta Public Schools to teach physics and physical science for one year---then, take directorship of their third planetarium (built by a federal grant) when that opened the following school year. I got my draft notice and "volunteered" for three years. Weeks before my return, I wrote to my employer giving them notice of my return so my temporary replacement would not be too inconvenienced. My first two letters were ignored until I went through my congressman, Andrew Young. Even then---all I got was a letter to stop by after discharge---travelling at my own expense, Washington to Atlanta.

    In person, I was told that my "temporary" replacement had gained tenure in my planetarium and I would have to teach until there was a planetarium vacancy.

    At first, I was treated the same as any other teacher---but, after I made three suggestions that would have gotten me planetarium experience, I began to get severe harassment from the principal and his cronies. Realizing that I would have sever mental problems if I kept this up---after 1.5 school years I was driven into accepting an unpaid study leave---until a planetarium became available.

    I did two years of study toward a masters---then, got my leave extended to do a year teaching community college astronomy and giving planetarium programs. At then end of three years, I contacted Atlanta Public Schools and was told I would have to come in---in person, at my own expense again---to be told anything.

    In Atlanta, I was told that the old personnel director had no authority to have offered a planetarium directorship---I would have to return as a teacher or be terminated.

    At this point, I had given almost 7 years paying my dues for this position!

    A.P.S. gets federal funding as an "Equal Opportunity Employer" despite all my complaints against this treatment.

    The community college, where I replaced their instructor on a doctoral study leave---would only count my first year of teaching, the next half year, the half year after my return and the following year. I was three years up on the pay-scale---my continuously employed, undrafted counterparts were six years higher---but, the school got federal funds as an "Equal Opportunity Employer". The following year, I taught high school math and physics. They would not count the years disallowed by the community college nor the year of college teaching and, what they did count---they halved before applying to the pay-scale. I was going backward---yet, this school system also got federal funds.

    I have been told, by school systems seeking math or science teachers, that it would be unfair to those never drafted for me to be paid as high!!!!!

    School systems would rather hire Mr. or MS Warm Body to babysit math an physics than pay an honorably discharged veteran an equal salary!!!!!

    Veterans do not count as a minority an do not get the protections that even newly arrived immigrants get!!!!!