While recently reading SHRM’s HR Magazine, I noticed the back cover. It had a picture of camouflaged-soldiers waving flags and the heading read “You may be overlooking thousands of star performers as potential job candidates.” It went on to say that, “More than 60,000 Army Soldiers complete their military services every year….” Sixty thousand! That number gave me pause. Do employers know what their legal obligations are when it comes to these returning veterans? The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) addresses the employment and reemployment of veterans. For many employers, USERRA is one of the least understood federal employment laws. For employers with reservists or those called to active duty, understanding USERRA is crucial to avoiding expensive and time-consuming claims under that law.
Employers’ Obligations Under USERRA
USERRA was enacted in 1994 to protect service members from being disadvantaged in their civilian careers due to serving in the uniformed services. USERRA covers virtually every individual in the country who serves in or has served in the uniformed services. Unlike many employment laws, USERRA applies to all employers in the public and private sectors, including federal employers, regardless of size. It requires an employer to grant unpaid leaves of absence for employees called into military service. Employees may elect to use accrued vacation pay, annual leave or other accrued paid leave during military leave, but an employer may not require them to use it during that time. Upon returning from military service, USERRA grants eligble employees the right to reemployment. USERRA provides protection for veterans with disabilities requiring employers to make reasonable efforts to acommodate the disability.
The rights provided under USERRA include:
- Non-discrimination based on military status;
- Reinstatement rights to the position and pay that the employee would have held had the employee remained continuously employed;
- Continuation of medical benefits for service under 30 days;
- Optional continuation of medical benefits;
- All seniority, rights and benefits upon return to work as if the employee had remained continuously employed; and
- Protection from discharge upon return to work, except for cause, for a period of time.
Exceptions under limited circumstances:
- Changed circumstances such as an intervening reduction in force that would have included the absent employee;
- The individual is no longer qualified, despite the employer’s reasonable efforts to qualify the employee; or
- The employee was employed for a brief, non-recurrent period.
USERRA Enforcement
While individuals may file private lawsuits against employers under USERRA, they also may file a complaint with the U.S. Department of Labor (DOL). If the DOL believes a complaint has merit, it tries to resolve the complaint with the employer voluntarily. If efforts toward a voluntary resolution fail, the DOL refers the complaint to the U.S. Department of Justice (DOJ). If the DOJ is satisfied that the claimant is entitled to the rights or benefits being sought, it has authority under USERRA to appear on behalf of a claimant in a suit filed in federal district court.
The DOJ’s Civil Rights Division has given high priority to the enforcement of service members’ rights under USERRA. This is evident in the number of lawsuits DOJ has filed in 2009. As of July 2009, the DOJ has filed 18 lawsuits and obtained 18 settlements under USERRA on behalf of service members. The number of lawsuits filed is up signficantly from 2007 and 2008, when seven and eleven lawsuits were filed, respectively.
The types of lawsuits brought in 2009 range from an employer’s failure to promptly re-employ service members who suffered injuries to an employer’s failure to afford the service member an opportunity for advancement. In March 2009, a judge entered a $1.3 million judgment against an employer after a jury found the employer liable for constructively firing a reservist called to active duty after the 9/11 attacks.
In light of the government’s increased focus on compliance with USERRA, employers who have employees entering or returning from service should make sure their policies and procedures incorporate the requirements of USERRA into them. Employers should also ensure that they are also complying with additional state laws that may apply.
USERRA Resources:
U.S. Department of Labor website
U.S. Department of Justice website
Equal Employment Opportunity Commission (EEOC) website
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