America’s veterans deservedly take the spotlight every year on November 11 as we recognize their commitment to our country, but according to Fisher & Phillips, a national management-side labor and employment law firm, private employers need to remember re-employment obligations to veterans who proudly protect and serve us all year.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted in 1994, established rights and responsibilities for uniformed service members and their civilian employers. It offers protections to veterans to help ease the process of returning to civilian life once their military service is complete. The act requires employers to reemploy veterans, grant leave to reservists for military training, and ensure no one who was or is in the armed forces is discriminated against based on their military service.
“USERRA allows employees of private employers to serve their country knowing they will have jobs to come home to,” said Teresa Valderrama, partner in the Houston office of Fisher & Phillips. “In my experience, employers want to help returning veterans, but they are often surprised about the requirements of the statute and can be frustrated over the disruption of reinstating an employee who has been away for years. Sometimes an employer may actually need to promote a returning employee if the employee can show that she would have received a promotion while she was on military leave.”
USERRA requires civilian employers to:
- Reemploy veterans who left for training or to serve in the armed forces once they have completed their service, (even if they have been gone as long as five years);
- Allow reservists to leave for military trainings and examinations;
- Provide health benefits to servicemen when they are fulfilling military duties; and
- Ensure that new employees, current employees, and employees currently on leave do not face discrimination based on military service.
Common Questions from Civilian Employers
Q: Are employers required to reinstate former employees who have been away fulfilling military service?
A: Yes. If employees leave a company for military service, employers are required to reemploy them for five years following their departures. This applies to those who have completed their service or who are honorably dismissed. Employers should treat the departures as furloughs. As such, employers are required to allow employees to keep health coverage provided by the employer while they are away (though the employee is still required to pay up to 102% of his share of the premium during extended leaves).
Q: Are employers required to reinstate returning veterans to the same positions they held prior to departing?
A: Typically, yes. Employers must reinstate returning veterans to the positions they would have held if they had not left, which may require employers to give the returning veterans promotions, salary increases, or additional training immediately upon return. This is known as the ”escalator principle.” In addition to reinstating the employee to the position he would have had if he never left, employers are required to immediately offer the employee and his dependents benefits available to employees in the position (i.e., no “waiting period”).
Q: How much time do returning employees have to complete applications for reemployment?
A: For leaves of greater than 30 days but less than 6 months, returning employees must submit an application for reinstatement within 14 days after completing their period of uniformed service, or if this is not possible through no fault of the employee, no later than one calendar day after notice becomes possible. For longer leaves, the returning employee has up to 90 days.
Q: Are employers required to allow reservists to leave for all training requested, even if some may interfere with important deadlines?
A: In short, yes. According to the Employer Support of the Guard and Reserve, a Department of Defense office, employees are only required to give reasonable notice. Employers cannot veto the timing, frequency or duration of the leave. Employers may contact the employees’ Commanding Officers in an effort to resolve conflicts. The Commanding Officers will try to accommodate reasonable requests to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment.
“It is important that employers understand the law to make sure that any battles take place out in the field and not in the courtroom,” said Valderrama. “For employers, it is a delicate balance between fulfilling their commitment to the brave men and women who serve and managing the demands of their business.”