President Obama has announced that the U.S. will withdraw nearly all troops from Iraq by the end of this year, with thousands of additional troops from both Iraq and Afghanistan returning the first couple of months into the new year. Are you prepared to comply with the law and reinstate employees who may have been on military leave for months…if not years…?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all civilian employers, protecting employees absent from work because of duty in any of the “uniformed services,” which includes not only full-time and reserve components of the Army, Navy, Air Force, and Marine Corps, but also Coast Guard and National Guard. USERRA also covers many types of uniformed services duty, including, but not limited to, active duty, active-duty training, initial active-duty training, inactive-duty training, and numerous other periods of absent. Further, it applies regardless of whether the duty is voluntary or involuntary.
One of the primary protections USERRA provides is entitlement to reemployment. To be eligible for reemployment, the employee must have left employment that was not for a brief, recurrent period and was reasonably expected to continue work. The job left need not be permanent or regular.
EMPLOYEE MUST HAVE GIVEN NOTICE
The employee must have provided proper notice before leaving to be eligible for reemployment. Notice can be oral or written and can be delivered by family members, military officers, or other individuals besides the service member. More importantly, the law specifies that the employee need not give notice if military necessity prevents it or if doing so is not possible. Employees returning from military service must have been honorably discharged.
LENGTH OF ABSENCE
USERRA provides that employees returning from military service receive the same reemployment and seniority protections regardless of the type of military service so long as the cumulative length of absence does not exceed five years, not counting military service performed during previous employment.
REPORTING BACK TO WORK
USERRA requires employees to report to work or seek reemployment by certain deadlines, depending on the length of service. Employees serving 30 days or fewer must report to work at the beginning of their next regular work shift, following release from service. Employees serving 31 to 180 days must submit their application for reemployment no later than 14 days after completion of service. Employees serving more than 180 days must submit their application for reemployment no later than 90 days following completion of service.
REEMPLOYMENT MUST BE POSSIBLE
USERRA does not require that you reemploy individuals returning from military service if changed circumstances have made reemployment impossible or unreasonable, or if reemployment would cause an undue hardship. This depends on the size and type of your business operation, workforce composition, financial resources, or other similar factors. In this economy, many employers have had to reduce their workforce.
SPECIAL PROTECTION AGAINST DISCHARGE
USERRA’s protections do not end once the employee is reinstated. Perhaps one of the most significant obligations the Act imposes is that employees returning from service of more than 30 days cannot be discharged without cause for a certain period of time following reemployment. Employees returning from service lasting more than 180 days cannot be discharged without cause for one year following the date of reemployment. Employees returning from uniformed service lasting 30 to 180 days cannot be discharged without cause for six months following the date of reemployment. The common “at-will” employment relationship is modified for this particular period of time, and the burden of proving cause for a discharge will be on employers. Having appropriate policies, training employees on them, and carefully documenting any violations or performance problems will be helpful in meeting the lawful standards.
This would be a prudent time for employers to review their military leave policies and procedures, review your processes for returning veterans, and make appropriate plans for how you will deal with the many contingencies that can occur when it comes to reinstating veterans’ employees who have been out of the workforce for any extended period of time.
FROM HARM’S WAY TO CIVILIAN EMPLOYMENT
USERRA Implications for Veterans and Employers
March 14 in Los Angeles and March 15 in Irvine, Pepperdine University and PIHRA (Professionals in Human Resources Assoc.) will be sponsoring a seminar to address issues regarding employers and returning veterans. For more information go to: