Taking Time Off for Military Service

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NEW YORK—According to the Department of Labor,  nearly 575,000 veterans in the U.S. are unemployed. Statistics released last year showed the average unemployment rate among all veterans was 5.3 percent and 8.4 percent for veterans returning from Iraq and Afghanistan. The unemployment rate for veterans exceeds the national unemployment average.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects civilian job rights and benefits for veterans and members of Reserve components. It is intended to minimize the disadvantages that occur when an individual needs to be absent from employment to serve in the uniformed services.

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service and provides re-employment rights. The time limits for how quickly you have to return the employee to work vary with the length of the service.

USERRA generally provides that an individual has the right to be re-employed in his or her civilian job if the individual leaves that job to perform service in the uniformed service. That right is contingent upon meeting several criteria. The returning service member must:

• Have given his/her employer advance written or verbal notice of the service, unless precluded by military necessity or otherwise impossible.

• Have five years or less of cumulative service in the uniformed services while with that particular employer.

• Return to work or apply for re-employment in a timely manner after conclusion of service unless reporting back or applying in a timely manner was impossible or unreasonable.

• Not be separated from service with a disqualifying discharge or other punitive conditions.

If eligible for re-employment, returning service members must usually be restored to the job and benefits (seniority, status and pay) that they would have attained if not for the absence due to military service; this is often referred to as the “escalator principle.”

In addition, employers must make reasonable efforts (such as training or retraining) to enable returning service members to qualify for re-employment. In some cases, a service member who can’t qualify for the “escalator“ position can instead be re-employed in another position that is the nearest approximation to the escalator position.

Although a five-year limit generally applies to how long the individual can be absent and still retain re-employment rights, several important exceptions exist. These include initial enlistments lasting more than five years; periodic National Guard and Reserve training duty; and involuntary active duty extensions and recalls, especially during a time of national emergency.

More information on USERRA reemployment rights can be found on the Department of Labor’s website.

In addition to re-employment rights, USERRA prohibits discrimination against:

• Past members of the uniformed services.

• Present members of the uniformed services.

• Persons who apply to be a member of any of the branches of the uniformed services or to perform services in the uniformed service.

• Persons with obligations (now or in the future) to serve in the uniformed services.

For example, a veteran of the Vietnam war remains protected against discriminatory employment actions based on that service even though that person’s uniformed service preceded his/her employment relationship by many years. The veteran may have rights under USERRA if she/he is denied a benefit of employment, motivated even in part by that military service.

Thirty-eight percent of complaints under USERRA contained allegations of discrimination based on past, present or future military service or status. It is an ongoing problem.

To avoid liability, the employer will have to show that it would have taken the same action without considering the military service. So what can you do?

• Train your supervisors and managers on USERRA’s provisions, including those relating to military leave.

• Make sure that a service member returning from leave within the allowed time frame receives all benefits and rights as if s/he had been continuously employed.

• Review anti-discrimination and anti-harassment policies. Military service and veteran status should be listed as protected categories.

Lastly, post the required USERRA notice (“Your Rights under USERRA”). The notice provides information on the rights of military service personnel to job reinstatement and other benefits.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC
(707) 217-0979
hlawson@alignedgrowth.com
www.alignedgrowth.com