The citizen soldier brings many assets to the work place: they tend to follow instructions and respect authority; they take leadership skills and work well in organizations. Some have service-acquired skills that translate well in the business community such every bit calculator skills. With these many talents provided to the employer come responsibilities.
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This article is intended to bring to the attention of employers the legal obligations they have to employees who have been called to active military duty or who are members of the U.s. National Guard or Reserves. For example, what obligations, if any, does an employer take to re-employ a veteran in the position they held prior to beingness called to active duty? What if doing so displaces some other employee or results in hardship for the employer?
While in that location are benefits in having a citizen soldier as an employee, employers must exist prepared to address these difficult questions forth with several others that flow from the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA).[1] Unlike another federal laws that apply simply if the employer has a certain number of employees, USERRA applies to all employers.
If you are wondering if these challenges will present themselves to your business organization, consider what the Pentagon has reported: As of August 2005 more 141,000 members of the United States National Guard and Reserve armed forces forces have been deployed to Iraq and Transitional islamic state of afghanistan. Currently those forces contain more than 35 percentage of all U.Southward. military forces actively serving in the region.
The magnitude of this issue is clearly reflected in the U.South. Department of Labor Statistics. There are over 2.6 one thousand thousand people in the U.Due south. Military.[2] Since September xi, 2001, more than 390,000 members of the National Guard and Reserve have already been released from active duty. This is the largest deployment of "citizen soldiers" since World War Two.[iii] In improver, the U.S. Bureau of Labor Statistics has reported that approximately one in five veterans discharged from active duty between 2002 and 2005 had meaning military machine service-connected disabilities.[iv]
Employers usually effort to treat returning veterans fairly but lack articulate guidance from state and federal governments regarding USERRA requirements.[5] This is particularly the instance with smaller to mid-size business organizations.
This commodity volition discuss the re-employment rights of the returning veteran also as the concomitant requirements of the employer. The authors volition provide an overview of the Department of Labor's Concluding Regulations interpreting USERRA, which can exist accessed directly at http://www.dol.gov/vets/regs/fedreg/last. Most importantly, the authors will offer applied, viable options to the employer in order to maximize the utilization of the citizen soldier and to ensure USERRA compliance.
Leaves of Absenteeism Policies
In the United States, Leaves of Absence policies chronicle to Pregnancy Disability Leave, Family Medical Exit, Inability Leave, Sick Go out, Jury Duty Leave, Workers' Compensation Leave, State Inability Get out, and Armed forces Leaves of Absenteeism. When employees serve in the military during their employment, the company is required to either agree their jobs open up or re-employ them in similar positions when they return from their war machine duties.
The Veterans' Benefits Improvement Act, enacted past Congress in 2004, requires all employers to provide a notice of rights under USERRA to all persons entitled to military go out of absenteeism rights and benefits. About anyone who has been absent-minded from work due to "service in the uniformed services" is protected by these laws. Military service includes: initial duty for training (e.g. basic preparation), inactive duty preparation (e.g. weekend type training), active duty grooming (the typical ii-week summer camp training), and actual military service (active duty).
Military leaves of absenteeism may be almost whatever length, with a maximum cumulative leave of five years. When the employee's service is over, they must provide observe of intent to return to their employer. Under most circumstances, the employer must re-employ the employee.
Once the veteran has been re-employed in their chore, they cannot exist fired for one yr, except for cause, regardless of the period of their active duty. USERRA requires employers to "promptly re-employ" an eligible returning veteran in an "advisable position." In virtually cases this must occur within 2 weeks of the veteran reporting back to work.
The definition of "Employer" as fix forth in USERRA is not the same as in other federal statutes: It includes "individual supervisors and managers" who accept been delegated control over employment opportunities. These individuals may in fact be held personally liable as an "employer" under USERRA. However, entities to which an employer has delegated administrative functions-such as for an employee benefits plan-are not included in USERRA'southward definition of "employer."[vi]
Spousal Rights
Interestingly, the state of New York has gone a step farther by not only protecting the employment of military personnel but too in granting certain rights to their spouses. On August 16, 2006, the New York Land Legislature enacted a statute requiring private and public employers to provide upwards to 10 days of unpaid leave to employees whose spouses are on leave from the U.S. War machine, National Guard, or Reserves, while deployed during a period of war. This law applies both to full-time and part-fourth dimension employees.[7]
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Seniority, Status, Pay, Promotion, and Pensions
Federal constabulary also prohibits taking discriminatory action against any military machine reservists by requiring them to apply their vacation time when deployed or in preparation for whatever branch of the U.S. military. It should too exist noted that when a veteran is available to return to work, they are entitled to all seniority-based benefits held prior to beingness ordered to agile duty and whatsoever other benefits that they would accept earned had the employee not served in the war machine.
Many employers are unaware that USERRA requires that re-employment of returning service members must be in the same seniority, status, and pay that the employee would take accomplished if they had not been chosen to active duty and remained continuously employed with their employer. Not only must the employer award the returning veteran any pay increases and promotions they would have received, but these must be applied retroactively-effective as of the date they would accept been made had the employee non been required to report to agile duty.
Practically speaking, many service personnel are reluctant to make an issue of "return to an advisable position," and tend-if they wish to have long-term employment at the business-to non complain. There is a concern that complaining besides much may impact long-term relationships with the business for a curt-term do good.
There are also bug regarding whether a promotion was based upon a exam. Thus if a proficiency examination were role of the promotion procedure, the returning service member may not authorize for the promotion. Without such testing, the theory is that the service member is on an lift. When he steps off the elevator for military machine service, the elevator continues. Upon return to the business, the service member is entitled to be at the elevator'due south new level.
USERRA too affords protection to re-employed service members relative to pension benefits. Military leave must exist treated as service with the employer for alimony vesting and benefit accrual purposes; the employer cannot treat them as if they had a break in service.
Veterans Returning from State of war with Diverse Types of Disabilities
Some employers are privately reluctant to hire people who have any disabilities. They assume that an bidder with a disability will non be able to fully handle a particular job. With regard to U.S. military veterans returning home from the Iraq and Afghanistan wars, this assumption is not only inaccurate; in most cases information technology is also illegal. The U.Due south. federal regime and many individual land governments have laws prohibiting bigotry based on disabilities.
In 1990 the U.S. Congress passed the Americans with Disabilities Act (ADA), which is administered by the Equal Employment Opportunity Commission (EEOC). This federal police force prohibits employers of 15 or more employees, in both the private and public sector, from discriminating against qualified individuals with disabilities in hiring and employment decisions. If a person is qualified to do the work, or to practise information technology in one case reasonable accommodations are made, employers must treat that person the same as all other applicants and employees.[8]
To have a qualified disability protected past the ADA laws and regulations, a person must take a physical or mental impairment that essentially limits one or more than life activities. Under the ADA, "life activities" include: walking, speaking, seeing, hearing, sitting, continuing, lifting, and performing manual tasks. The idea of a "reasonable accommodation" means that employers take the responsibility to brand some changes to aid a disabled person practise a job.[ix]
For example, if a veteran returns to work with whatsoever blazon of leg injury that affects their ability to walk, employers will exist required in a very timely manner to provide accommodations in their workplace. Some examples would include, but not be limited to: ensuring accessibility to existing facilities used past employees such equally exits, entrances, and restrooms; acquiring new workplace stations that accommodate the disabled veteran; and modifying equipment or other required piece of work-related devices for the veteran's use.
Other employer requirements may include modifying the work schedule to enable the employee to perform the "core" content of the job for which they are qualified. Employers must keep in mind that these requirements for "reasonable adaptation" also apply to company-sponsored training programs and social events.
Peradventure the most challenging scenario for an employer is when a returning veteran suffers from postal service-traumatic stress disorder or other psychological disabilities as a upshot of their armed services service. In such a scenario the employer will be required to possibly modify the employee'south work schedule and policies to facilitate advisable medical handling and perhaps to provide some caste of accommodation through "chore re-training." The employer must also keep in heed that even though reasonable accommodations must be made to permit the employee the schedule flexibility to come across various wellness care providers, the need for confidentiality in the workplace relative to these matters cannot be overstated. It is imperative that these matters be treated with the highest level of confidentiality.
At every level the returning war veteran employees must exist given the same benefits and privileges of employment as those given to all other employees. However, a key point on this subject is that employers will not be required to lower the quality of their work or product standard, but rather to provide accommodations so that the returning veteran-because they take the necessary work knowledge and experience-will once more be productive in their work environment
Employers have the right to ask questions such equally: Do yous demand whatsoever reasonable accommodations to perform this job? If the reply to this is "yep," the employer should then ask: What accommodations do you lot believe you lot need to satisfactorily perform the job? Employers volition be expected to assist returning veterans in assessing whether they will need whatsoever blazon of adaptation in order to meet chore requirements and the expected level of operation.
Employees who supervise other workers are required to receive training related to persons with disabilities. Many employers are not articulate about these laws or actively effort to ignore them.
However, even in cases where employers are in the midst of financial difficulties-or even in the example of layoffs-courts have regarded veterans as a special course of employee to whom special rules apply.
In 2006 a U.Southward. Commune Courtroom in Colorado ordered Agilent Technologies to pay Lieutenant Colonel Steve Duarte, a Marine Corps Reservist who was deployed to Iraq, $383,761 for terminating him only a few months after he returned from active duty. Agilent viewed the termination every bit necessary because information technology was contending with financial difficulties. All the same, the presiding estimate viewed the situation differently. The estimate was of the view that, "Col. Duarte paid a steep cost for his military machine deployment during his employment with the company and he deserved better."[x]
Exceptions
There are substantially just ii positions that employers may affirm if they wish to be relieved of their obligations under USERRA. Showtime is Impossibility, which may apply to situations such every bit reductions-in-force. It does not employ to situations where an employer would have to re-assign current employees to re-employ the veteran.[11]
2nd is the defense of Undue Hardship. Different the defense force of Impossibility, an employer may assert the defense of Undue Hardship to justify not having to re-assign an employee from his or her electric current job to accommodate the war veteran. To bear witness Undue Hardship an employer must show that the war veteran is unable to perform the job he or she held prior to existence called to active duty.[12] The employer must, however, at least make reasonable practiced faith efforts to re-apply the war veteran in a task that is comparable to the one-time position in both task responsibilities and bounty.[thirteen]
Advanced Planning
Almost armed forces commands will work with the employer to endeavour to avoid a hardship to the business concern as a result of a deployment. There are special offices bachelor at most commands to assist both the soldier and the employer, including the soldier's individual unit, the superior headquarters judge advocate offices, and the human resources sections.
The employer should work out a programme with the citizen soldier employee in advance regarding notification of when their military duty is expected and for what length of time. If the employee has essential skills needed by the company, the deployment can sometimes be deferred to another appointment. The armed services wants its citizen soldiers to have minimal stress resulting from deployment and return to the customs.
Conclusion
Many of our citizen soldiers return to work with fantabulous technical skills in areas such equally computer and information technology, project management, and operations efficiency too as excellent squad-building skills, and leadership skill-sets. In terms of personal and professional characteristics, they return with the power to focus on clearly defined expectations, role well in a results-oriented surroundings, handle themselves in a complex piece of work environs, and function well in high pressure level and stress environments.
In the wake of the wars in Iraq and Afghanistan it is particularly important to recognize the significance of the military'south office in today's gild and to sympathize the employer's responsibilities besides as the implications of providing sources of employment for our military veterans returning from war. A good way to ensure that a denizen soldier volition be a successful part of your business is to know the guidelines of employment rights in advance.
Can nosotros ask our soldiers to deploy to train or fight our wars, and so not go their jobs back when they return? We all accept a responsibility.
Action Steps for Employers
Carefully review the Employee Handbook/Policy Manual to make sure that information technology is up to date and in compliance with all new land and federal laws.
Review the company'south recruiting and hiring practices to ensure that all activities, policies, and procedures in this important area of employment encounter current legal guidelines for the recruiting and hiring of employees.
Constitute "job descriptions" for all positions in the company. Information technology is extremely important for employers to clarify the "core requirements" and "essential skill-set and knowledge needs" for each position. Employers should document all "essential job functions" for important job positions accurately and realistically. Employers must stay electric current, be flexible, and review chore descriptions with electric current and potential employees.
Review all policies related to leaves of absence. These policies should not merely be updated and in full compliance with current laws, merely employers must brand sure that all policies in these areas are applied "consistently" and "equitably" within the arrangement.
Familiarize yourself with the current laws and regulations pertaining to Military Service Leaves of Absenteeism.
Familiarize yourself with the current laws and regulations covered past the Americans with Inability Human action (ADA).
Obtain skillful advice regarding the "reasonable accommodations" to be considered for employees or chore applicants with any type of disability. Examples of "reasonable accommodations" include (but are not limited to): modifying an employee's work schedule; providing an interpreter; making all physical facilities accessible; and acquiring accessibility equipment. This reasonable accommodation obligation is an ongoing duty and may arise at any fourth dimension.
Familiarize yourself with all employee benefits (including health insurance coverage). Returning veterans will be entitled to their benefits in the areas of wellness insurance, 401K participation, company turn a profit-sharing plans, group term life insurance policies, disability insurance coverage, deli plans, and other employee benefits.
Understand the obligations and the legal rights and entitlements of employees pertaining to "General Notice of COBRA Healthcare Insurance Continuation" coverage.
Review all "Workplace Prophylactic" policies. Ensure compliance with all OSHA (U.Due south. Occupational Prophylactic and Health Administration) and Cal-OSHA, which requires employers to provide a safe and healthful workplaces for employees. There are severe penalties levied for violation.
Additional References
2007 California Labor Police Digest
Veterans' Employment and Training Service
U.S. Department of Labor USERRA Counselor. http://www.dol.gov/elaws/userra.htm
[ane] Uniformed Services Employment and Re-Employment Rights Act of 1994, 38 United statesC. ; 4301:4334 (2005).
[2] Heather DePremio. "Article, Essay & Note: The State of war Within the War: Notice Issues for Veteran Reemployment," Naval Law Review, 53, (2006): 31.
[3] National Veterans Foundation. "Facts About Veterans: Needs and Solutions," http://world wide web.nvf.org/?q=facts-almost-veterans-needs-and-solutions.
[4] "Veteran says he was forced out of VA job," Associated Press, May 11, 2006.
[5] Gil A. Abramson. "Commentary: Employers need guidance when soldiers come back to work," St. Louis Daily Record/St. Louis Countian, February v, 2006, Commentary Section.
[vi] "DOL Finalizes USERRA Regulations Detailing the Reemployment Rights of Military Service Members," Mondaq Business organisation Briefing, January 10, 2006.
[7] Lauren Malanga Casey, Epstein Becker & Green P.C. "Employers' Obligations Extend to Military machine Spouses," New York Employment Police Letter, (New York, M. Lee Smith Publishers: 2006): Sec. 202-i.
[8] California Chamber of Commerce. "California Chamber of Commerce Employer Guidelines," California Sleeping room of Commerce Newsletter, 2007 Business Bug and Legislative Guide, May fourteen, 2007.
[9] Equal Employment Opportunity Commission. California Chamber of Commerce Newsletter, 2007 Business Issues and Legislative Guide, February i, 2007, page 2. California Department of Fair Employment and Housing. California Department of Fair Employment Legislative Guide Journal, Significant Litigation Section, (05/14/2007): 41. 38, UsaC. ; 43 (2007).
[x] "Rehire Veterans," The Washington Times, March 22, 2006, Editorial Department, at A16. Marcel Quinn. "COMMENT: Uniformed Services Employment and Reemployment Act (USERRA) – Broad in Protections, Inadequate in Scope," University of Pennsylvania Periodical of Labor & Employment Law, 8, (2007): 237.
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