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New Year, new laws covering veteran hiring, whistle-blowing

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in Employment Law,Human Resources

THE LAW: Employers will ring in some new laws with the New Year, and those laws will bring challenges and opportunities.

In November, President Obama signed the VOW to Hire Heroes Act that provides employers with tax credits for hiring veterans.

The Sarbanes-Oxley Act (Sarbox) has created a framework for whistle-blowers to report financial abuses to the federal government. Beginning in 2012, the Dodd-Frank Wall Street Reform and Consumer Protection Act amends Sarbox to make it easier for employees to blow the whistle on their employers.

WHAT’S NEW: The VOW to Hire Heroes Act provides additional training to veterans in what the Depart­­ment of Labor defines as high-demand job sectors. To qualify, veterans must participate in the Transition Assist­ance Program, which provides em­­ploy­­ment training and job search skills. The act also streamlines the process for returning veterans to receive notification of their veteran status.

Employers that hire veterans who have been out of work for four weeks, but less than six months receive a tax credit of $2,400. Hiring veterans who have been out of work six months or longer nets the employer a $5,600 tax credit. A veteran with a service-related disability and who has been out of work for at least six months is worth up to $9,600 in tax credits.

The bill also amends the Uni­formed Services Employment and Re­­em­­ploy­­ment Rights Act (USERRA) to allow hostile work environment lawsuits. Until now, courts had been reluctant to allow these suits.

Dodd-Frank amended Sarbox to give OSHA the authority to quickly in­­ves­­tigate whistle-blower allegations and employee retaliation claims. Em­­­­­ployees now have longer to file complaints—180 days instead of 90 days from the date of the violation or date the em­­ployee learned of the violation.

OSHA must provide a copy of the complaint to the employer and the Securities and Exchange Commission within 20 days, and issue findings within 60 days.

If OSHA finds the complaint has merit, it will order relief for the em­­ployee. Employers may request a hearing if they disagree with the findings.

HOW TO COMPLY: The new amendments to USERRA mean you must train supervisors that military-­connected employees may not be har­­assed because of their military service. Update your equal opportunity statements to include military service. Offer military-connected employees who wish to report harassment the same channels you make available to sexual harassment victims.

If you have (or wish to create) a policy granting a preference for hiring veterans, detail how it will apply to each hiring situation—and be sure to apply it equitably for all job openings.

Employers can also run afoul of the ADA if they ask job applicants if they are disabled, which may be a factor with some veterans. Employers may not require job applicants to reveal their disabilities. However, they may ask them to voluntarily “self-identify as a disabled veteran.” Employers must inform applicants clearly, in writing or orally, that:

  1. The information is being requested as part of the employer’s affirmative action program.
  2. Providing the information is voluntary.
  3. Failure to provide it will not create any adverse treatment.
  4. The information will be kept confidential and only used in a way that complies with the ADA.

Don’t dodge Sarbox issues

Give employees options to report any practice they see that harms the company or its shareholders or could be illegal.

Your whistle-blowing policy should mirror your sexual harassment policy. Assure employees they will not be punished for filing complaints or testifying in an investigation. Give them the option of reporting their allegations to their immediate supervisor or another designated company official. Most important, investigate quickly and fairly.

Advise your attorney as soon as an employee complains of financial malfeasance. Such charges carry significant potential legal liability.

Employees who prove employer retaliation may be entitled to reinstatement with back pay and interest, attorneys’ fees and other damages.

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