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Feature Contents
Top of Feature
1. Employers’ Legal Obligations to Employees in the Military
2. Gearing Up for Active Duty
On the eve of what might be the largest reserve deployment in U.S. history, companies vary widely in how they treat reservists. Some do the bare minimum, or pressure employees to leave the reserves. Others support reservists, and reap loyalty and recruiting benefits.
3. USERRA Final Regulations Published
The regulations apply to all private employers and state and local governments.
4. USERRA Verdict Affirmed for Reservist
Employers are advised to carefully evaluate employee rights under USERRA.
Similar Documents
Related Topics
Employers’ Legal Obligations to Employees in the Military
Hiring citizen soldiers has great benefits, but there are also strict laws governing their treatment that every employer needs to know.
By Jeffrey Schieberl and Charles P. Leo
 itizen soldiers bring many assets to the workplace: They tend to follow instructions
and respect authority; they have leadership skills and work well in organizations.
Some have service-acquired skills that translate well in the business community
such as computer skills. With these many talents provided to the employer come responsibilities.
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). 1
Unlike 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. 2
Since 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.3
In 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. 5
This 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
Spousal rights
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.
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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
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Exceptions
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. 12
The 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
Advanced planning
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.
Conclusion
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.
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Action steps for employers
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Establish job descriptions for all positions in the
company. It is extremely important for employers to clarify the core requirements
and essential skill-set and knowledge needs for each position. Employers should
document all essential job functions for important job positions accurately and
realistically. Employers must stay current, be flexible, and review job descriptions
with current and potential employees.
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Familiarize yourself with all
employee benefits (including
health insurance coverage). Returning veterans will be entitled to their benefits
in the areas of health insurance, 401(k) participation, company profit-sharing plans,
group term life insurance policies, disability insurance coverage, cafeteria plans
and other employee benefits.
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Workforce Management Online, October 2007 -- Register Now!
Additional References
- 2007 California Labor Law Digest
- Veterans’ Employment and Training Service
- U.S. Department of Labor
USERRA 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)
Jeffrey Schieberl teaches business law at Pepperdine University’s George L.
Graziadio School of Business and Management. Charles P. Leo teaches management
at the business school. Schieberl and Leo also are principals in Huntington
Beach, California-based L&S Human Resource and Employment Law Consultancy
Group. To comment e-mail editors@workforce.com.
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