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Veterans' re-employment rights

by Glenn M. Rissman

The following article was originally published in the April 17, 2006 edition of Boca Raton/Delray Beach News. Reprinted with permission.

Q: Some of our employees are reservists or members of the National Guard who were called up for active duty. With the prospect of our troops returning home, what are my obligations to these employees?

A: The Uniformed Services Employment and Reemployment Act (USERRA) prohibits employers from discriminating against past and present members of the uniformed services and establishes reemployment rights for service members who want to return to the jobs they held prior to uniformed service. The Department of Labor recently published regulations to explain and clarify USERRA. Below is a summary of an employer’s rights and obligations and the rights and obligations of the service member under USERRA.

USERRA covers all categories of military training and service, including duty performed on an voluntary or involuntary basis, in peace or war. Among others, USERRA applies to National Guard and reserve military personnel.

USERRA makes it unlawful to deny initial employment, reemployment, retention in employment, promotion or any other benefit of employment to an individual because he or she performed military service or applied to perform service in the uniformed services. An employer may not discriminate against a person who served in the military because of service in the military. Of course, in the case of initial employment, if the individual is not qualified for the position in question or there is a more qualified applicant for the job, a private employer is under no obligation to give a preference to the military veteran. (State employers may have to provide a veteran’s preference to military veterans.)

The most significant impact of USERRA is the returning veteran’s right to reemployment with the prior to uniformed service employer. Although there are exceptions, in general, if an employee has been absent from a position of civilian employment because of service in the uniformed services, he or she will be eligible for reemployment. Eligibility for reemployment is based on several factors:

1. The employer had advance notice of the employee’s service;
 
2. The employee has five years or less of cumulative service in the uniformed services in his or her employment relationship with the particular employer;

3. The employee timely returns to work or applies for reemployment; and

4. The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions.

Prior notice

The employee, or an appropriate officer of the uniformed service, must provide the employer with as much advance notice of the need for leave as is reasonable under the circumstances. The notice does not have to be in writing.  Further, notice is not required if prevented by military necessity or is otherwise impossible or unreasonable under the circumstances. At the time the employee leaves for uniformed service, he or she does not have to tell the employer that he or she intends to seek reemployment after completing uniformed service.

Notice upon return from service

Once the employee completes his or her service in the uniformed services, the employee must notify the pre-service employer of his or her intent to return to the employment position by either reporting to work or submitting an application for reemployment. How soon the employee must report back to work or apply for reemployment depends upon the employee’s length of uniformed service. If the employee is eligible for reemployment, the employer has few defenses excusing it from the obligations to reemploy the returning employee. Only if the employer can show that its circumstances have so changed to make reemployment impossible or unreasonable can the employer refuse to reemploy an otherwise eligible employee.

Benefits while on leave

While the employee is away, the employer must treat the employee as on leave or on furlough for all non-seniority benefits. The employee must be given the most favorable treatment accorded to any comparable form of leave. Thus, if an employer continues the accrual of vacation or sick leave for an employee on leave, the employee on leave for service in the uniformed services must also receive such benefit. The employee away for service in the uniform services may also request to use any accrued leave with pay (with the exception of sick leave) during the period of employment to continue his or her civilian pay. The employee is also entitled to elect to continue group coverages under COBRA.

USERRA’s escalator provision

The returning employee is entitled to the reemployment in the job position he or she would have attained with reasonable certainty if not for the absence due to uniformed service. Thus, if not for the uniformed service, the employee would have been promoted, demoted, transferred, or laid off, the statute requires that the employee be put in such position. The statute also requires reemployment that includes seniority, status, and rate of pay the employee would ordinarily have attained.

Penalties

An employer who fails to comply with USERRA can be sued in federal court. The statute authorizes a court to order the employer to comply with USERRA, award the employee any lost wages or benefits, award liquidated damages, and award attorneys’ fees and costs to the prevailing employee.

While most employers will gladly welcome back employees who were away on military leave, they may not be aware of all of the details associated with reemploying a returning service member. Compliance with USERRA is necessary not only to avoid legal liability but to honor those who have served our country.