With the focus on laws prohibiting discrimination based on gender, religion and race, employers may be surprised to learn that one of the most sweeping and protective employment laws on the books involves employer treatment of military personnel.
As this country’s servicemen and women re-enter civilian life, it is crucial that employers understand soldier-employee rights and employer obligations.
The Uniformed Service Employment Re-employment Rights Act (“USERRA”) has been law in one form or another for a number of years. Recent regulations have given the statute some teeth, however, making compliance more important than ever.
At its most basic level, USERRA provides for present, past and future protection for returning employees.
Present Protection – Leave and Reinstatement
The statute requires that virtually all employers (including very small employers) allow employees a leave of absence to enter military service, including reserve or guard duty. The leave can last up to five years. And unlike most other employment statutes where the burden of proof generally remains with the employee, the employer has the burden of demonstrating a legally permissible reason for failing to reinstate a soldier-employee.
Specifically, an employer is excused from its reinstatement obligations only if it can show that it would be an undue hardship to rehire the employee or a statutory reason that the employee does not qualify for reinstatement. Absent a showing of either of those reasons, some courts have held that the refusal to rehire is an automatic violation of USERRA. As the cases thus far favor a very broad, pro-employee interpretation of the act, employers should be prepared to show a hardship sufficient to justify a failure to reinstate.
Past Protection – the Escalator Clause
Upon release from active service (the length of time following release is determined by the length of the employee’s service), the employee not only has the right to be rehired by his or her prior employer, but the soldier also has the right to “escalate” to the position that he or she would have held had there been no military service. This means that the employee is automatically entitled to any promotion, salary increase or other benefits given to similarly situated employees during the employee’s military leave. If the employee is not qualified for this position, the employer must provide training or take other measures to qualify the employee for the position. If the additional training would be futile, the employer must reinstate the soldier into the next best position.
Future Protection – For Cause Terminations upon Rehire
USERRA forbids termination, except for cause, for a period of time after reinstatement. The protected period will depend on the soldier’s length of service. For example, an employee on active duty for more than 181 days may not be terminated except for cause for one full year following reinstatement.
In addition, employers may not discriminate or retaliate against an employee based on his/her military service, and this prohibition protects all veterans, not just those who have served in Iraq. Obviously, derogatory comments may be used to demonstrate an anti-military animus in much the same way racist or sexist remarks are used in traditional discrimination cases.
The statute also gives extremely broad protection to soldiers disabled in the line of duty. These protections exceed even the employer statutory obligations found in the Americans with Disabilities Act.
Statutory rights under USERRA are exceedingly well communicated to those the statute is designed to protect. USERRA mandates that employers post notices in the workplace describing employee rights under the Act. The Veterans’ Employment and Training Service (“VETS”), an arm of the U.S. Department of Labor, attempts to brief all National Guard members both before and after deployment to heighten awareness of the soldiers’ rights (and their responsibilities to notify employers of their desire to return).
The federal government has devoted additional manpower and resources to create better enforcement mechanisms to ensure the protection of military personnel who temporarily leave employment to serve the country and disgruntled soldiers have numerous avenues for complaint.
Employer Support of Guard and Reserve, a volunteer agency operated by the Department of Defense, informally mediates employment disputes. Additionally, VETS enforces this law and has authority to investigate formal USERRA charges. If VETS is unable to resolve a complaint, the Department of Justice may decide to represent an employee for free and file a complaint in federal court. Employers found to have violated USERRA face stiff penalties, including back pay, lost benefits, reinstatement, attorney’s fees, costs and possibly double damages.
Employers also must confront the intangible penalties of not complying with USERRA. The war may be politically unpopular, but soldier support has been unwavering, and the public relations connected with a USERRA violation could be problematic for any employer. The employer also should consider workplace morale concerns associated with violations of this statute.
Stacie Boeniger Collier is a partner in the labor and employment group of Nixon Peabody LLP’s Providence office.
