|
Published: December 1, 2009
written by Carol A. Chapman
In January and February 2010, 3,200 to 3,500 Reserves and Guard service members will be returning from deployment overseas. Many of these veterans will be seeking reemployment with their previous employers in March and April. It is important for you, as an employer, to understand your responsibilities in reemploying these veterans.
The USERRA governs the rights of military veterans returning to the workplace. USERRA is a remedial statute and is, therefore, construed liberally in favor of the veteran. [Davis v. Advocate Health Center Patient Care Express, 523 F.3d 681 683-84 (7th Cir. 2008)] USERRA has many provisions and these can be reviewed at 38 U.S.C. § 4301 et seq. Additionally, the Department of Labor has promulgated regulations at 20 CFR Part 1002. This article will highlight these reemployment rights and responsibilities to assist employers avoid any pitfalls when veterans come back seeking reemployment.
Right to Reemployment
Employees who satisfy USERRA's eligibility requirements are entitled to be promptly reemployed by their employer upon the employee-service members' request for reemployment.
Timing
Employees returning after less than 31 days of military service are entitled to return to their previous position on the next available workday after completion of their military duty. Employees who serve 31 days or more must provide the employer notice that they are seeking reemployment, which notice can be oral or written. If the employee is returning from a 31-180 days of active service, the employee must reapply for employment within 14 days of the completion of service. If the employee is returning after 181 or more days of active duty, the employee must reapply within 90 days of completion of the duty assignment.
One caveat: if the employee fails to provide notice within the above time period, the employee still retains his or her right to reemployment; he or she is simply subject to the employer's policies such as those relating to absenteeism.
Position
If the employee is returning after serving 31 days or more, the employee is entitled to be reemployed into the position he or she would be in if the military leave had never occurred - this is referred to as the "escalator position." This entitlement includes any salary increases and any seniority or other status changes. If the military leave was over 90 days, the employee is entitled either to the escalator position or to a position with the same seniority, status and pay as the escalator position.
If, during his or her military leave, an employee would have been eligible to take an examination for advancement, the employer must provide the employee with the opportunity to take the examination after the returning employee had the some span of time for readjustment. If the employee successfully completes the requirements for the promotion at this later time, you must treat the employee (pay, status, benefits) as if the employee had received the promotion at the time of the original opportunity.
If a returning employee is not qualified for the escalator position, an employer must provide "reasonable assistance" to the employee so that the employee can become qualified for the escalator position. The statute and regulations also set forth the employer's "assistance" obligations for employees returning to their old positions for which they are no longer qualified and for accommodating disabled veterans in returning to work.
Exceptions
An employer may refuse to reemploy a veteran returning from military leave under limited circumstances:
- Employer's changed circumstances make it impossible or unreasonable to reemploy - e.g., employee's position was eliminated in a reduction in force
- The employee is not qualified and assisting the employee to become qualified would impose an "undue hardship" on the employer (this may occur when the employer must apply the escalator principle to the employee)
- The position that the employee vacated was created for only a "brief, nonrecurrent period."
However, an employer is required to place an employee returning from military leave into the position that he or she would be entitled even if it means that the individual currently occupying that position may have to be discharged in order to accomplish this assignment.
Finally, USERRA temporarily suspends at-will employment for these returning veterans. Depending on the length of military leave, a reemployed veteran could be entitled to a "for cause" termination for up to one year after reemployment.
Legal Implications
Military status is a protected class and accordingly, discrimination and retaliation on the basis of someone's prior or current military services is prohibited in the same way as it is for other protected classes such as race and gender under Title VII. A recent review of the Department of Justice filings reveals that the number of cases the Department is bringing under USERRA on behalf of veterans is increasing dramatically. In the years 2005-2007, the average number of cases was seven. In 2008, this rose to 11 cases. As of November 10 of this year, the total number of cases filed by DOJ on behalf of veterans under USERRA is 20. This past July, the DOJ filed an action against the City of Milwaukee in the Eastern District of Wisconsin, Michael V. Crivello v. City of Milwaukee, Case no. 09-cv-0673, alleging that the city, through its police department, violated USERRA by refusing to allow Crivello to take a make-up examination for the position of detective. That action is still in the early stages of litigation.
Additionally, in a recent conversation between this author and Wisconsin State Director of the Veterans Employment and Training Service, Daniel Schmitz, Mr. Schmitz stated that he and his office is responsible for investigating and mediating all administrative complaints filed by veterans against potential, current and former employers. Mr. Schmitz specifically noted that the hardship defense, even in light of reductions in force and the decline in the economy, will be examined on a case-by-case basis. The mere existence of a RIF will not, in and of itself, constitute a hardship under USERRA.
Bottom Line
As the war continues, and citizen soldiers return from years of deployment, Congress has determined that these veteran employees are entitled to reemployment with their former American employers and foreign employers with facilities here in the U.S. This article touches on only a very small portion of your obligations under USERRA.
Penalties for failing to reemploy a veteran can run from injunctive relief, to double wages and benefits if a court determines that the employer willfully disregarded the tenets of the USERRA. Accordingly, you should seek out the information you need to ensure that you comply with this federal law.
In addition to the statute and regulations themselves, the Department of Labor's VETS website and the Department of Defense's Employer Support for Guard and Reserve website provide some guidance. You should also discuss any specific concerns with your legal counsel.
No company wants to be penned in the press as anti-patriotic. Making the effort to ensure that your company properly follows USERRA is time well spent.
Carol Chapman served three years on active duty in the U.S. Army, reaching the enlisted rank of Specialist-5. Ms. Chapman then served an additional three years in the active Army Reserve. She served as a legal specialist and non-commissioned officer in a Judge Advocate General unit during her Army Reserve duty. Ms. Chapman is active in a number of veteran organizations. She can be reached at 608.283.6766 or cchapman@axley.com.
This article was featured in the December 2009 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.
Axley Brynelson is pleased to provide articles, legal alerts, podcasts and videos for informational purposes, but we are not giving legal advice or creating an attorney/client relationship by providing this information. The law constantly changes, and our publications may not be currently updated. Before relying on any legal information of a general nature, please consult legal counsel as to your particular situation. While our attorneys welcome your comments and questions, keep in mind that any information you provide us, unless you are now a client, will not be confidential.
|
