by Jamie N. Rotteveel, Esq., Pepper Hamilton LLP, Philadelphia
With Veterans Day observations on Nov. 11, it’s a good time to review employer obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA exists to minimize disadvantages for employees who temporarily leave their civilian jobs to serve in the military. It encourages military service by making it easier for employees to return to civilian life after serving in the armed services.
Under USERRA, employees who perform military service “shall not be denied initial employment, re-employment, retention in employment, promotion, or any benefit of employment” because of that service.
USERRA applies to all public and private employers, regardless of size.
The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) is responsible for USERRA implementation, administration and enforcement.
Complaints are surging
USERRA complaints are on the rise as U.S. troops return from areas of conflict, even as other reservists are being called to duty. Pennsylvania alone has more than 980,500 veterans.
In 2011, VETS reviewed 1,548 USERRA complaint cases, a significant increase from the 110 cases it received in 2010. Almost 35% of those complaints alleged some form of employment discrimination on the basis of past, present or future military service, status or obligations.
Basic USERRA rights
Under USERRA, an employer generally has a duty to re-employ someone who takes a leave of absence for military service. An employee who is called to military service qualifies for re-employment upon discharge from service if he or she:
- Properly notified the employer of the need for a service-related absence
- Takes a cumulative absence of no more than five years
- Properly reapplies for or reports to work on a timely basis and
- Was not separated from service with a disqualifying discharge or under other-than-honorable conditions.
Note: An employee may be disqualified if the employer’s circumstances change so reinstatement isn’t possible.
Same seniority, status, pay
USERRA operates on an escalator principle: A returning employee must be provided all the seniority, rights and benefits he or she would have earned if continuously employed during military service. This means that a returning veteran must be re-employed in the job he or she would have attained absent military service, with the same seniority, status, pay and other rights and benefits determined by seniority.
Under USERRA, an employee may be lawfully terminated only “for cause” during the first year following re-employment if his or herwas for more than six months. If the leave was less than six months but more than 30 days, the employee may be terminated only for cause during the first six months of re-employment.
Employers can’t discriminate against employees because of their military obligations. It’s a USERRA violation if military status is a factor in the employer’s action against the employee, unless the employer proves it would have done the same thing regardless of military status. For employees to win, they need show only that the employer was motivated in part by military status.
Employers should confirm that their employment policies—including benefits policies—comply with all federal and state laws regarding the rights of employees who serve in the armed forces.
Jamie N. Rotteveel is an attorney in the Labor and Employment Group of Pepper Hamilton LLP. She can be reached at (215) 981-4644 or firstname.lastname@example.org.
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