Even before President Obama recently authorized another troop surge in Afghanistan, the Congressional Budget Office estimated that more than 580,000 military reservists have served in some phase of the wars in Iraq and Afghanistan. The soldiers coming home will mean many joyous reunions with friends and family. But it will also have significant consequences for American employers.
The soldiers are coming home to an economic climate very different than the one many left 18 months ago and some may come home to find their jobs no longer exist. As employers begin grappling with reintegrating soldiers into the workplace, they must be aware of laws that protect soldiers returning from war.
U.S. military personnel are protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This federal law grants them substantive rights with regard to reemployment, continued accumulation of seniority status and special protections from termination as a result of their call to active duty.
Iraq and Afghanistan are the first military engagements requiring the large-scale call up of reservists since USERRA was passed in 1994. As a result, the law has never really been tested until today. But as recent lawsuits filed against Wal-Mart, American Airlines and UPS attest, it is being tested now and employers who aren’t complying with the statute face a legal and public-relations maelstrom.
Qualifying for USERRA
Employees are covered by USERRA if they:
1) Left their civilian employment for military service;
2) Gave prior notice to their employer that they were leaving for duty – usually about 30 days unless that’s
3) Were not on active duty for a cumulative period of five years or more;
4) Were not released with a disqualifying discharge; and
5) Promptly reported back to their employer after their enlistment ended.
Employers should ensure all five of these conditions have been met. If any are missing, the employee is not covered by USERRA. Employees are also not covered if they are called up to perform a purely state duty. Thus, a National Guard employee called up by the state governor to provide disaster relief in a flood zone is not entitled to USERRA protections.
The easiest way to think of USERRA is to imagine that the military reservist never actually left the job. USERRA entitles a reservist to prompt reemployment and seniority-based benefits he or she would have accrued had he or she not left to perform their military service. It also gives them special protections against dismissal.
When a reservist files their application for reemployment, they are entitled to prompt reemployment. Prompt reemployment means the employer has to reinstate the reservist “as soon as practicable under the circumstances” but at most within two weeks, absent unusual circumstances.
The reservist is also entitled to reinstatement to their old job, including pay, benefits, seniority and other earned job perks that they would have obtained with reasonable certainty had it not been for their absence due to military service. This is referred to as the “escalator principle.”
A reservist who departs for military service is placed on an escalator. If seniority is a factor for any job-related purpose in the workplace – such as layoffs or promotions – their seniority rises along with all of the other employees, even though they aren’t actually working. When they return from service, they are in the same place in seniority as they would be if they never left. The escalator carried them up.
USERRA also gives returning employees a sort of Kevlar body armor to prevent them from being terminated because of their military service. Returning employees are entitled to a special protection period during which they may only be discharged for cause. “Cause” is defined as either improper conduct or some other legitimate non-discriminatory reason. The length of the period of special protection depends on the employee’s length of military service. If they served for more than 180 days, the protection remains for one year. If they served for more than 30 days but less than 181 days, the protection is for 180 days.
If an employer terminates a reservist during this period, the employer bears the burden of proving the employee was terminated “for cause.” Employers must also make reasonable efforts – usually training – to refresh or upgrade returning employees’ skills.
Employers understanding their obligations to USERRA is the first step in achieving a healthy balance for everyone. Employers are encouraged to take the time to develop policies and procedures to minimize disruption to the workforce while complying with your legal obligations.
Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston.