Last week, President Obama announced the end of combat operations in Iraq. Although most of the 65,000 Americans serving there will either stay in Iraq into next year or be re-deployed, thousands will be returning to civilian life. Employers need to be mindful of the principal employment laws that protect the job rights of both the returning military personnel and their family members.
USERRA (http://tinyurl.com/35945d7) protects the rights of veterans to return to their civilian jobs. Employers must reemploy returning service members in the job that they would have attained had they not been absent for military service (the so-called “escalator” position), with the same seniority, status, and pay. USERRA also requires employers to make reasonable efforts to train or retrain returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the individual cannot qualify for the “escalator” position, USERRA requires the employer to provide alternative reemployment positions. The Department of Labor has published “VETS USERRA Fact Sheet 3” (http://tinyurl.com/33gaqtn) and other information to help employers understand the reemployment rights of service members.
Returning service members trigger their reemployment rights by advising their employer of their desire to return to work. Be patient — they might not do so right away upon their return to civilian life. While this notification must be given within the time periods specified in USERRA (which increase in relation to increased time of absence for military duty), note that service members convalescing from injuries received during service or training have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
Even if your company or location is not anticipating the return of a service member soon, be sure that you are compliant with USERRA's notification rule. Employers are required to provide to a notice of the rights, benefits, and obligations of persons entitled to the rights and benefits under USERRA. Employers may provide the notice, entitled, "Your Rights Under USERRA," (http://tinyurl.com/m4fqv) by posting it where employee notices are customarily placed. However, employers may provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail).
A word to the wise — in this time when returning service members are held in high regard and generally deserve all benefits of all doubts, employers are well advised to bend over backward to ensure that those persons receive reemployment considerations and assistance beyond the minimum required by law. Employers who violate USERRA, or barely comply with its minimum requirements but turn away a veteran, will have a difficult time defending claims made on behalf of these patriots.
Next week we will address the FMLA rights of family members.