News & Insights

USERRA – Employer Obligations and Veteran Rights
June 2, 2014
by Robert Conte

 

South Bend / Mishawaka, IN – The Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employers from discriminating against veterans returning from active service, has been labeled the toughest anti-discrimination, positive-obligation-to accommodate statute that exists. USERRA establishes obligations for employers when they bring back to work employees who left their jobs for military service. However, there are rules in the law that also apply to employees. While the law requires employers to rehire employees who return from a period of active duty of up to five years, the employee must do so in a certain period of time, based on how long he/she spent in the service.

Like their federal statute counterparts, Title VII of the Civil Rights Act of 1964, the American’s with Disabilities Act and the Age Discrimination in Employment Act, USERRA prohibits employers from discriminating against veterans returning from active service. Simply stated, employers are barred from refusing to hire someone returning from active duty based on his or her military service. Employers are also prohibited from passing up veterans for promotions or firing them, “USERRA prohibits discrimination at all stages of employment, hiring, promotion, wages, etc., on the basis of an individual’s veteran or service member status.”

The conditions placed on a returning service member’s rights to reemployment are equally strong. To qualify, a returning veteran must have provided notice to the employer of his or her military service and must have spent five or fewer years in active duty while with the employer. The veteran also has to return to work within a certain period of time after the end of the military service and provided “superior service” during the active duty period.

The returning veteran is not just reinstated and thrown in to the employment mix, to the contrary. The employer is required to bring a qualifying employee back to work based on the “escalation principle”, that is, returning veterans must be reemployed at whatever position they would have obtained if they had not gone into the military and remained on the job. Reemployment and escalation rights also extend to other aspects of the employment relationship between an employer and employee, i.e., vacation, sick time, leave and pension benefits. However, the escalation principle cuts both ways. If a returning veteran’s position was cut as part of a RIF, an employer may be able to justify a decision not to reinstate the veteran.

On final point, under USERRA, an employer must accommodate veterans who return to work with disabilities. Veterans, like other employees, are afforded the right to a reasonable accommodation under the ADA, however, USERRA goes a step further. If the returning veteran cannot do the job because of the disability, the employer is required to make an effort to place the disabled veteran into a position he or she would be qualified to perform. If it is a service related injury, the employer has an obligation to train the employee to get them into another job.

Knowing the law and training your supervisors and employees to accept returning veterans as they reenter the workplace will go a long way in making everyone’s life a little easier.

Source: Ahead of Memorial Day, a Look at Employer’s Duties to Vets, Scott Flaherty, Law 360, May 22, 2014.

 

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