September 1, 1999

Employers Must Re-hire Soldiers Returning from Duty

Holland & Knight Newsletter
Paul G. Lannon

As the conflict in Kosovo winds down for U.S. troops, military reservists and National Guard members are returning to the civilian work force. Many have been on active duty for months, some for years, and most are wondering whether they still have the jobs they left behind. Did they lose their seniority? Their benefits? Will their military commitments be held against them?

Employers wonder, too. Such questions do not arise often in our comparatively peaceful times. Indeed, the last time the U.S. needed to activate its National Guard and reservists on a large scale was eight years ago during Operation Desert Storm. One result of our good fortune on the military front is that few civilian employers are familiar with the rights of veterans and reservists, and fewer have written policies addressing such items as military leave.

One important starting point is the Uniform Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. §4301 et seq. Enacted by Congress in 1994, USERRA prohibits employment discrimination against members of the "Uniformed Services," including the Armed Forces and the National Guard. It also provides Uniformed Service members with enhanced job security. The Act is comprehensive and quite detailed. Accordingly, employers are advised to seek legal counsel as to the application of the USERRA in particular situations.

Here are some of the main points of the USERRA. The Act specifically prohibits employers from denying initial employment, retention, re-employment, promotion or any employment benefit on the basis of a person's military membership or obligation. The test for discrimination is weighted in favor of the soldier.

Discrimination is presumed where a person's military membership or obligation is a "motivating factor" in an employment action, unless the employer can prove that the action would have been taken in the absence of the military membership or obligation.

Uniformed Service members who have missed less than five years of employment due to military service are generally entitled to re-employment with full benefits, provided that they comply with certain notification obligations. They are entitled to the additional seniority rights and benefits they would have attained if continuously employed during the time of their military service, and they are also entitled to use accrued vacation or other paid leave during their military service. An employer, however, is not required to re-employ Uniformed Service members where re-employment would impose an undue hardship on the employer, the employer's circumstances have so changed as to make re-employment impossible or unreasonable, or where the job at issue was for a brief, nonrecurrent period which carried with it no reasonable expectation that the employment would continue for a significant term.

The job to which a Uniformed Service member may be re-employed depends to some extent on the number of days he or she was absent from civilian employment due to military service. For example, if an employee's military service was less than 91 days, the employee must be re-employed in the position he or she would have had without the military service interruption unless the person is not qualified to perform the duties of that position after reasonable efforts by the employer to qualify the employee for that position.

If military service was for more than 90 days, the employer may substitute a position of like seniority, status and pay. Persons disabled during military service are also granted re-employment protection. Such persons should be granted, at a minimum, a position that is the nearest approximation to his or her former position in terms of seniority, status and pay, consistent with the person's ability to perform the job duties with reasonable accommodation efforts by the employer.

Employers should also beware of retaliatory discharge claims. USERRA contains a strict no-retaliation provision. If a person's military service was more than 180 days, he or she may not be discharged except for cause within one year after the date of re-employment. If a person's military service was more than 30 days but less than 181 days, then he or she may not be discharged except for cause within 180 days after the date of re-employment.

Uniformed Services members may seek enforcement of their rights under USERRA by petitioning the Secretary of Labor or by bringing suit in federal court. Employers may be held liable for back wages and benefits, costs, attorneys' fees, and limited punitive damages. Courts are also authorized to order an employer to re-employ an Uniformed Service member or otherwise to comply with the provisions of USERRA.

A better understanding of these rights and responsibilities should ease the concerns of both Uniformed Service members and their civilian employers.

For more information, please call Paul G. Lannon, Jr. at 1.888.688.8500.

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