This article is intended to bring to the attention of employers the legal obligations they have to employees who have been called to active military duty or who are members of the United States National Guard or Reserves. For example, what obligations, if any, does an employer have to re-employ a veteran in the position they held before being called to active duty? What if doing so displaces another employee or results in hardship for the employer?
While there are benefits in having a citizen soldier as an employee, employers must be prepared to address these difficult questions along with several others that flow from the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA).1Unlike some other federal laws that apply only if the employer has a certain number of employees, USERRA applies to all employers.
If you are wondering if these challenges will present themselves to your business organization, consider what the Pentagon has reported: As of August 2005, more than 141,000 members of the United States National Guard and Reserve military forces have been deployed to Iraq and Afghanistan. Currently, those forces comprise more than 35 percent of all U.S. military forces actively serving in the region.
The magnitude of this issue is clearly reflected in U.S. Department of Labor statistics. There are more than 2.6 million people in the U.S. military.2Since September 11, 2001, more than 390,000 members of the National Guard and Reserve have already been released from active duty. This is the largest deployment of "citizen soldiers" since World War II.3In addition, the U.S. Bureau of Labor Statistics has reported that approximately one in five veterans discharged from active duty between 2002 and 2005 had significant military service-connected disabilities.4
Employers usually try to treat returning veterans fairly but lack clear guidance from state and federal governments regarding USERRA requirements.5This is particularly the case with smaller to midsize business organizations.
This article will discuss the re-employment rights of the returning veteran as well as the concomitant requirements of the employer. The authors will provide an overview of the Department of Labor’s final regulations interpreting USERRA, which can be accessed directly at http://www.dol.gov/vets/regs/fedreg/final. Most important, the authors will offer practical, viable options to the employer in order to maximize the utilization of the citizen soldier and to ensure USERRA compliance.
Leave of absence policies
In the United States, leaves of absence policies relate to pregnancy disability leave, family medical leave, disability leave, sick leave, jury duty leave, workers’ compensation leave, state disability leave and military leaves of absence. When employees serve in the military during their employment, the company is required to either hold their jobs open or re-employ them in similar positions when they return from their military duties.
The Veterans Benefits Improvement Act, enacted by Congress in 2004, requires all employers to provide a notice of rights under USERRA to all persons entitled to military leave of absence rights and benefits. Virtually anyone who has been absent from work due to "service in the uniformed services" is protected by these laws. Military service includes: initial duty for training (e.g., basic training), inactive duty training (e.g., weekend-type training), active duty training (the typical two-week summer camp training) and actual military service (active duty).
Military leaves of absence may be almost any length, with a maximum cumulative leave of five years. When the employee’s service is over, they must provide notice of intent to return to their employer. Under most circumstances, the employer must re-employ the employee.
Once the veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty. USERRA requires employers to "promptly re-employ" an eligible returning veteran in an "appropriate position." In most cases this must occur within two weeks of the veteran reporting back to work.
The definition of "employer" as set forth in USERRA is not the same as in other federal statutes: It includes "individual supervisors and managers" who have been delegated control over employment opportunities. These individuals may in fact be held personally liable as an "employer" under USERRA. However, entities to which an employer has delegated administrative functions—such as for an employee benefits plan—are not included in USERRA’s definition of "employer."6
Interestingly, the state of New York has gone a step further by not only protecting the employment of military personnel but also in granting certain rights to their spouses. On August 16, 2006, the New York State Legislature enacted a statute requiring private and public employers to provide up to 10 days of unpaid leave to employees whose spouses are on leave from the U.S. Armed Forces, National Guard or Reserves, while deployed during a period of war. This law applies both to full-time and part-time employees.7
Seniority, status, pay, promotion and pensions
Federal law also prohibits taking discriminatory action against any military reservists by requiring them to use their vacation time when deployed or in training for any branch of the U.S. military. It should also be noted that when a veteran is available to return to work, they are entitled to all seniority-based benefits held prior to being ordered to active duty and any other benefits that they would have earned had the employee not served in the military.
Many employers are unaware that USERRA requires that re-employment of returning service members must be in the same seniority, status and pay that the employee would have achieved if they had not been called to active duty and remained continuously employed with their employer. Not only must the employer award the returning veteran any pay increases and promotions they would have received, but these must be applied retroactively—effective as of the date they would have been made had the employee not been required to report to active duty.
Practically speaking, many service personnel are reluctant to make an issue of "return to an appropriate position," and tend—if they wish to have long-term employment at the business—to not complain. There is a concern that complaining too much may affect long-term relationships with the business for a short-term benefit.
There are also issues regarding whether a promotion was based upon a test. Thus, if a proficiency examination is part of the promotion process, the returning service member may not qualify for the promotion. Without such testing, the theory is that the service member is on an elevator. When he steps off the elevator for military service, the elevator continues. Upon return to the business, the service member is entitled to be at the elevator’s new level.
USERRA also affords protection to re-employed service members relative to pension benefits. Military leave must be treated as service with the employer for pension vesting and benefit accrual purposes; the employer cannot treat them as if they had a break in service.
Veterans returning from war with various types of disabilities
Some employers are privately reluctant to hire people who have any disabilities. They assume that an applicant with a disability will not be able to fully handle a particular job. With regard to U.S. military veterans returning home from the Iraq and Afghanistan wars, this assumption is not only inaccurate; in most cases it is also illegal. The U.S. federal government and many individual state governments have laws prohibiting discrimination based on disabilities.
In 1990 the U.S. Congress passed the Americans With Disabilities Act (ADA), which is administered by the Equal Employment Opportunity Commission. This federal law prohibits employers of 15 or more employees, in both the private and public sector, from discriminating against qualified individuals with disabilities in hiring and employment decisions. If a person is qualified to do the work, or to do it once reasonable accommodations are made, employers must treat that person the same as all other applicants and employees.8
To have a qualified disability protected by the ADA laws and regulations, a person must have a physical or mental impairment that substantially limits one or more life activities. Under the ADA, "life activities" include: walking, speaking, seeing, hearing, sitting, standing, lifting and performing manual tasks. The idea of a "reasonable accommodation" means that employers have the responsibility to make some changes to help a disabled person do a job.9
For example, if a veteran returns to work with any type of leg injury that affects their ability to walk, employers will be required in a very timely manner to provide accommodations in their workplace. Some examples would include, but not be limited to: ensuring accessibility to existing facilities used by employees such as exits, entrances and restrooms; acquiring new workplace stations that accommodate the disabled veteran; and modifying equipment or other required work-related devices for the veteran’s use.
Other employer requirements may include modifying the work schedule to enable the employee to perform the "core" content of the job for which they are qualified. Employers must keep in mind that these requirements for "reasonable accommodation" also apply to company-sponsored training programs and social events.
Perhaps the most challenging scenario for an employer is when a returning veteran suffers from post-traumatic stress disorder or other psychological disabilities as a result of their military service. In such a scenario, the employer will be required to possibly modify the employee’s work schedule and policies to facilitate appropriate medical treatment and perhaps to provide some degree of accommodation through "job retraining." The employer must also keep in mind that even though reasonable accommodations must be made to allow the employee the schedule flexibility to see various health care providers, the need for confidentiality in the workplace relative to these matters cannot be overstated. It is imperative that these matters be treated with the highest level of confidentiality.
At every level the returning war veteran employees must be given the same benefits and privileges of employment as those given to all other employees. However, a key point on this subject is that employers will not be required to lower the quality of their work or production standard, but rather to provide accommodations so that the returning veteran—because they have the necessary work knowledge and experience—will again be productive in their work environment
Employers have the right to ask questions such as: Do you need any reasonable accommodations to perform this job? If the answer to this is yes, the employer should then ask: What accommodations do you believe you need to satisfactorily perform the job? Employers will be expected to assist returning veterans in assessing whether they will need any type of accommodation in order to meet job requirements and the expected level of performance.
Employees who supervise other workers are required to receive training related to persons with disabilities. Many employers are not clear about these laws or actively attempt to ignore them.
However, even in cases where employers are in the midst of financial difficulties—or even in the case of layoffs—courts have regarded veterans as a special class of employee to whom special rules apply.
In 2006 a U.S. District Court in Colorado ordered Agilent Technologies to pay Lt. Col. Steve Duarte, a Marine Corps Reservist who was deployed to Iraq, $383,761 for terminating him only a few months after he returned from active duty. Agilent viewed the termination as necessary because it was contending with financial difficulties. However, the presiding judge viewed the situation differently. The judge was of the view that, "Col. Duarte paid a steep price for his military deployment during his employment with the company and he deserved better."10
There are essentially only two positions that employers may assert if they wish to be relieved of their obligations under USERRA. First is "impossibility," which may apply to situations such as reductions in force. It does not apply to situations where an employer would have to reassign current employees to re-employ the veteran.11
Second is the defense of "undue hardship." Unlike the defense of impossibility, an employer may assert the defense of undue hardship to justify not having to reassign an employee from his or her current job to accommodate the war veteran. To prove undue hardship, an employer must show that the war veteran is unable to perform the job he or she held prior to being called to active duty.12The employer must, however, at least make reasonable good-faith efforts to re-employ the war veteran in a job that is comparable to the former position in both job responsibilities and compensation.13
Most military commands will work with the employer to try to avoid a hardship to the business as a consequence of a deployment. There are special offices available at most commands to assist both the soldier and the employer, including the soldier’s individual unit, the superior headquarters judge advocate offices, and the human resources sections.
The employer should work out a plan with the citizen soldier employee in advance regarding notification of when their military duty is expected and for what length of time. If the employee has essential skills needed by the company, the deployment can sometimes be deferred to another date. The military wants its citizen soldiers to have minimal stress resulting from deployment and return to the community.
Many of our citizen soldiers return to work with excellent technical skills in areas such as computer and information technology, project management and operations efficiency as well as excellent team-building and leadership skills. In terms of personal and professional characteristics, they return with the ability to focus on clearly defined expectations, function well in a results-oriented environment, handle themselves in a complex work environment and function well in high-pressure and high-stress environments.
Amid the wars in Iraq and Afghanistan, it is particularly important to recognize the significance of the military’s role in today’s society and to understand the employer’s responsibilities as well as the implications of providing sources of employment for our military veterans returning from war. A good way to ensure that a citizen soldier will be a successful part of your business is to know the guidelines of employment rights in advance.
Can we ask our soldiers to deploy to train or fight our wars, and then not get their jobs back when they return? We all have a responsibility.
Action steps for employers
- 2007 California Labor Law Digest
- Veterans’ Employment and Training Service
- U.S. Department of LaborUSERRA Advisor
This article is copyrighted and has been reprinted with permission from Pepperdine University. The Employers’ Legal Obligations to Employees in the Military, Jeffrey Schieberl, JD, MBA, and Charles P. Leo, PhD, MBA, Graziadio Business Report, Volume 10, Issue 3, 2007. http://gbr.pepperdine.edu/073/veterans.html#_edn5
1 Uniformed Services Employment and Re-Employment Rights Act of 1994, 38 U.S.C. §§ 4301–4334 (2005)
2 Heather DePremio. "Article, Essay & Note: The War Within the War: Notice Issues for Veteran Reemployment," Naval Law Review, 53, (2006): 31.
3 National Veterans Foundation. "Facts About Veterans: Needs and Solutions"
4 "Veteran says he was forced out of VA job,"Associated Press, May 11, 2006
5 Gil A. Abramson. "Commentary: Employers need guidance when soldiers come back to work," St. Louis Daily Record/St. Louis Countian, February 5, 2006, Commentary section
6 "DOL Finalizes USERRA Regulations Detailing the Reemployment Rights of Military Service Members," Mondaq Business Briefing, January 10, 2006
7 Lauren Malanga Casey, Epstein Becker & Green P.C. "Employers’ Obligations Extend to Military Spouses," New York Employment Law Letter, (New York, M. Lee Smith Publishers: 2006): Sec. 202-i
8 California Chamber of Commerce. "California Chamber of Commerce Employer Guidelines," California Chamber of Commerce Newsletter, 2007 Business Issues and Legislative Guide, May 14, 2007
9 Equal Employment Opportunity Commission. California Chamber of Commerce Newsletter, 2007 Business Issues and Legislative Guide, February 1, 2007, page 2. California Department of Fair Employment and Housing. California Department of Fair Employment Legislative Guide Journal, Significant Litigation Section, (05/14/2007): 41. 38, U.S.C. § 43 (2007)
10 "Rehire Veterans," The Washington Times, March 22, 2006, Editorial section, at A16. Marcel Quinn. "COMMENT: Uniformed Services Employment and Reemployment Act (USERRA)—Broad in Protections, Inadequate in Scope," University of Pennsylvania Journal of Labor & Employment Law, 8, (2007): 237
11 38 U.S.C. § 4312(d) (1994)
12 38 U.S.C. § 4312 (d)(1)(B); 38 U.S.C. § 4312(d)(2)(B) (1998)
13 38 U.S.C. § 4312(d)(1)(B); 38 U.S.C. § 4312(d)(2)(B) (1998)