Employers continue to get marched into court for violating service members’ re-employment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Managers on the front lines should be aware of the law and these common pitfalls:
Failing to re-employ
USERRA provides that an employer must promptly re-employ an employee when he or she returns from a period of service, provided the employee meets the law's eligibility requirements.
Mistake: Hiring a replacement is no excuse for refusing or failing to re-employ a returning service member. If the replacement is doing a good job and you want to retain him, either find him a new job or find the service member a comparable position.
For purposes of USERRA, “prompt” re-employment means as soon as practicable under the circumstances of each case. Absent unusual circumstances, re-employment must occur within two weeks of the employee’s application for re-employment.
Mistake: The U.S. Department of Justice (DOJ) alleged that a security company unreasonably delayed a service member’s re-employment by requiring the security guard to attend a weapons certification course, a CPR course, and a 40-hour refresher course prior to his re-employment. The DOJ held that the courses could have been administered at any time upon the guard’s return and did not require a favorable suitability determination prior to administration. The company settled the claim for over $7,000.
Failing to reinstate to the same or a comparable position
As a general rule, an employee is entitled to re-employment in the job position that she would have attained with reasonable certainty if not for the absence due to uniformed service, which is known as the “escalator position.” The escalator principle requires that the employee be re-employed in a position that reflects with reasonable certainty the pay, benefits, seniority, status, and other job perquisites that she would have attained if not for the period of service. Status can include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility and geographical location.
Mistake: It is the employer’s job to determine the appropriate escalator position. One company settled with the DOJ for $40,000, after the agency accused it of failing to identify the position a returning service member would have received had he not been activated, and it failed to re-employ him for nearly a year.
Discharging a service member without cause
Employees cannot be fired based on their military service or status, and their jobs have even greater protection when they are initially re-employed.
- Employees whose military service lasted 31-180 days cannot be fired without cause for six months after re-employment.
- Employees whose period of military service was six months or more cannot be fired without cause for one year after re-employment.
Mistake: It is a violation of USERRA to use allegations of misconduct as a pretext for firing a recently reinstated service member.
When an employee is discharged for cause based on conduct, the employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that the employee had notice that the conduct would constitute cause for discharge.
Online resource: Access a pocket guide to USERRA here.
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