Veteran's Re-Employment Rights
The conflict in Kosovo resulted in the call-up of National Guard and Reserve forces. These events highlight the importance of employers' awareness of the re-employment rights of Reservists and members of the National Guard.
I bring some personal experience to this area of employment law. I serve as a Major in the United States Marine Corps Reserve along with my full-time profession as an employment attorney. I have represented employers in investigations of veterans' re-employment by the Department of Labor.
The United States Congress updated the Uniformed Services Employment and Re-Employment Rights Act (USERRA) in 1994. The updated Act strengthens the rights of members of the Uniformed Services to re-employment without any loss of seniority, status or pay. The broad sweep of USERRA protects both job applicants and employees against discrimination on the basis of their military obligations.
USERRA's central provision provides an "unqualified" right of re-employment to service members returning from duty. The exceptions to the right are extremely limited.
The USERRA places the burden upon the employee/service member to provide advance notice of military service where this type of advanced notice is possible and establishes guidelines for service members informing their employers of their plans to return to work. This notice can be written or verbal. An employee who does not give advanced notice loses protection under USERRA, unless giving notice would be "impossible or unreasonable" because of military necessity or other legitimate reasons.
Employers should note that even the most urgent military contingencies generally provide at least some advance notice to the service member prior to reporting for duty. Service members should utilize this window, however long it may be, to provide the required notice to their employer of their impending absence. Employers should note that the employee is not required to inform the employer whether or not he or she plans to return to his or her former position.
USERRA requires prompt reinstatement of returning service members, and provides members a claim for lost wages if there is an "undue delay" in re-employment. Returning employees must be placed in the position they would have attained, with reasonable certainty, had they remained continuously employed. Employers may think of this re-employment as an "escalator" position depending on the employment situation for similarly situated employees during the worker's absence. The like employment situation might also include lay-off or severance status.
Employers should also note that USERRA requires employers to offer continuing health plan coverage and pension and retirement benefits for employees serving in the Armed Forces.
A final factor to be considered by an employer in these cases is the potential for very bad publicity if an employee "goes public" with a claimed violation, even if unsubstantiated. In that circumstance, employers and legal counsel need to develop a consistent "media plan" setting forth the employer's side of the story.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.