As more and more reservists demobilize and return to work (with the strong likelihood of being redeployed), many employers must now focus on reemploying military personnel, reintroducing reservists into the workplace, and operating an effective business. Signifi cantly, the federal government has stepped up its efforts to improve oversight of reserve employment issues. Since 2004, the Department of Justice (“DOJ”), Civil Rights Division, has brought 14 lawsuits and filed the first federal class action suit on behalf of service members. And most recently, in August 2007, the DOJ sued a federal contractor alleging that it violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) by refusing to reemploy and, instead, discharging a senior analyst upon his release from active military service in the Navy. Woodruff v. DTI Assocs. Inc., E.D. Va., No. 1:07cv774. With such scrutiny, employers must make sure to comply with military leave laws.
Overview: In 1994, Congress passed the USERRA, which prohibits discrimination against members of the armed forces who leave employment, whether voluntary or involuntary, to perform military service. 38 U.S.C. § 4311(a). USERRA also prohibits retaliation against any person who has exercised his or her rights under the Act. 38 U.S.C. § 4311(b).
Simply stated, USERRA protects millions of individuals with the transition between military service and civilian employment. One of the fundamental purposes of USERRA is “to minimize the disruption to the lives of persons performing service in the uniformed services . . . by providing for [their] prompt reemployment.” 38 U.S.C. § 4301(a)(2). Upon return from service, with limited exceptions detailed below, military service personnel must be reemployed in the same or similar position (same benefi ts, raises and promotions) that they would have attained if they had not been absent for military service.
On January 18, 2006, 12 years after USERRA was enacted, the DOL’s long-awaited regulations became effective, clarifying the existing rights and responsibilities of returning military service members. The salient points include the following:
Employers are required to reinstate returning service members within two weeks after they apply for reemployment, absent unusual circumstances.
Employers are required to reinstate returning service members to a position with the same seniority, status and pay they would have attained if they had remained continuously employed.
Employers must make reasonable efforts to accommodate a disability if it limits the service member’s ability to perform the job.
Employers must continue to provide service members specifi c rights under their healthcare and pension plans.
Reemployment Rights and Reinstatement: With the rise of USERRA complaints and increased exposure to employers, it is important that employers know and understand their obligations to returning service members. Before triggering an employer’s obligations, employees must meet certain conditions to qualify for reemployment. Thus, a service member must have: 1) been absent from the position by reason of service; 2) given advance notice of the service to their employer; 3) served fi ve years or less, cumulatively, while employed with that particular employer; 4) returned to work or applied for reemployment in a timely manner; and 5) been honorably discharged. 20 C.F.R. § 1002.32(a).
Assuming these conditions are met, the service member must request a return to work within certain time limits, depending on the length of military service. For example, for military service of one to 30 days, an employee must report to the employer by the beginning of the fi rst full regularly scheduled work day that would fall eight hours after returning home following completion of service (allowing a reasonable period for safe transportation from site of military service). For military service of 31 to 180 days, an employee must submit an application for reemployment with the employer within 14 days after the completion of military service, or if that submission is not possible, on the fi rst full calendar day that submitting an application is possible. For military service of more than 180 days, an employee must submit an application for reemployment within 90 days after the completion of the military service. An employee may have up to two years to submit an application for reinstatement in the case of hospitalization, unless circumstances beyond the individual’s control make notifi cation within the required two-year period impossible or unreasonable.
Notwithstanding these rules, an employee’s failure to report or submit a timely application does not automatically preclude the individual of his or her statutory reemployment rights. Instead, the employee becomes subject to the employer’s established rules, policies and general practices pertaining to an employee’s absence from work. 38 U.S.C. § 4312(e)(3); 20 C.F.R. § 1002.117.
Finally, the U.S. Supreme Court, in Fishgold v. Sullivan Drydock and Repair Corp., relying on the Selective Training and Service Act of 1940 (50 U.S.C.A. Appendix, § 308), an earlier job protection statute for service members, explained that the returning service member “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” The position to which the returning service member should be restored has become known as the “escalator position.” The USERRA drafters agreed with this principle and continue to follow its rationale.
Grounds for Denying Reemployment: An employer bears the burden of proving either that the discharge was based on the employee’s conduct or was the result of some other legitimate nondiscriminatory reason that would have affected any employee in the reemployed service member’s position, regardless of his or her protected status or activity. Other reasons for discharge may include the elimination of the employee’s position, corporate reorganization or downsizing, and layoff, provided those reasons are legitimate, nondiscriminatory and non-pretextual.
An employer also may deny reemployment to an employee if the employer’s circumstances have changed in a way that would make reemployment impossible, unreasonable or create an undue hardship. For example, an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included the employee. An employer cannot, however, establish that it is unreasonable or impossible to reinstate the returning service member solely by showing that no opening exists at the time of the reemployment application, or that another person was hired to fi ll the position vacated by the veteran, even if reemploying the service member would require terminating the employment of the replacement employee. Likewise, an employer cannot merely cry “undue hardship” but, instead, must demonstrate signifi cant diffi culty or expense to reemploy the service member based on the overall fi nancial resources of the facility, the overall financial resources of the employer, and the type of operation or operations of the employer. C.F.R. § 1002.5(n).
Best Practices for Employers: The rise in USERRA complaints is evident. The four federal agencies responsible for assisting reservists with USERRA complaints – Department of Defense, DOL, DOJ, and Offi ce of Special Counsel – have addressed more than 16,000 informal and formal complaints since 2004. The recent lawsuit fi led by the DOJ is another indicator that the government will continue to protect those who protect us. As a result, best practices for employers is to know their role in transitioning military personnel back into the workplace with minimal disruption. Employers must therefore review and update their compliance policies, train their managers (and personnel) on USERRA rights and responsibilities, and provide guidance to returning military personnel.