Federal Law Protects Armed Services Members - What Employers Need to Know
The term “blitzkrieg” became a common term on September 1, 1939 when Germany invaded Poland. Thus, commenced the domino effect of nations falling to Germany, and America’s official position of “neutrality” coupled with the realization that its military was no match against the axis nations. However, the American government knew a large amount of manpower was going to be necessary to deal with the looming war. Forward-thinking legislators enacted the “Selective Training and Service Act of 1940" , commonly referred to as “STSA”, which was the first Federal attempt to clarify laws relating to the re-employment rights of service members. As millions of men would ultimately be affected as a result of serving during World War II, the STSA provided returning service members with certain re-employment rights. However, changing times required the law be updated. In 1974, Congress passed the Vietnam Era Veterans’ Readjustment Act of 1974 (later re-codified and commonly referred to as the Veterans’ Re-Employment Rights Act or “VRRA”.)
Both the STSA and VRRA were amended and re-codified in 1994 and became known as the Uniform Services Employment and Re-Employment Rights Act of 1994 (38 U.S.C. 4301 - USERRA). The main purpose of USERRA was: 1) to make certain that persons serving in the armed forces, reserves, national guard or other “uniformed services” are not disadvantaged in their civilian careers as a result of their military service; and 2) to make certain service members were promptly re-employed upon their military service conclusion; and 3) to make certain service members were not discriminated against in their civilian jobs as a result of their military service.
In order for USERRA to apply, an employer only needs one employee. See Cole v. Swint, 961 F2nd 58, 60(5th Cir. 1992).
In construing USERRA and prior laws, Courts have followed the Supreme Court’s admonition that “This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.” Re-employment rights extend to persons who have been absent from employment because of “service in the uniformed services.” “Uniformed Services” consists of the following:
- Army
- Navy
- Marine Corp.
- Air Force
- Coast Guard
- Army Reserve
- Naval Reserve
- Marine Corp. Reserve
- Air Force Reserve
- Coast Guard Reserve
- Army National Guard or Air National Guard
- Commission Corps of the Public Health Service
- Any other category of persons designated by the President in time of war or emergency
In order for an employee to give notice to an employer of military service, all notice may be written or oral. Notice will not be required if:
- Military necessity prevents the giving of notice; and/or
- The giving of notice is otherwise impossible or unreasonable.
Upon return to work after military service, the employee has certain time frames to report back to work depending upon the length of service (assuming the military member is not injured during military service). Ninety days after military service is the longest time line upon a service member’s return to make an application for re-employment with the employer. This ninety-day period is for those members who have served in excess of 181 days or more.
One of the more interesting provisions of USERRA is a provision that is colloquially known as the “escalator position”. That is, USERRA requires that an employee returning from military service be placed back into a position, with limited exception, to a level of employment that the person would have enjoyed if the individual had been continuously employed. For example, if an employee left for three years of military service, if all of his or her colleagues in similar jobs and pay scale were given promotions and pay raises based on length of service, the returning service member would also be entitled to the same promotion and pay raises as if he or she had never left continuous employment.
Hand in hand with the “escalator” clause is the returning service member’s right to all seniority rights and benefits a service member would have obtained had the service member been continuously employed. The test to determine whether or not rights are seniority rights is whether or not those seniority rights are determined by the length of service. If it is not, the employer is not required to provide the returning service member with the particular seniority right.
Since the beginning of the “First Gulf War”, the Country’s National Guard has been called upon time and time again. The question that frequently arises is if these “week-end warriors” are covered by USERRA when these National Guardsmen must report for the one week-end a month and two-week training in the summer. The “week-end warrior” is covered under USERRA, and any employer prohibition against National Guardsmen performing his or her duties is prohibited under USERRA (this is not to say that the Guardsman is allowed to abuse the rights afforded to Guardsmen under USERRA. If an employer feels an employee is abusing the USERRA rights, the employer is well within his or her right to contact the employee's commanding officer to discuss the situation. Further, there is a national organization called the ESGR (Employer Support for the Garden Reserves), including its local chapter here in New Jersey to assist both employers and employees regarding USERRA rights). While service members may use vacation time to fulfill the service member’s obligation to the military, an employer is prohibited from requiring a service member to utilize vacation to do so.
An aggrieved service member may bring an action against an employer privately, or utilize an attorney in the Department of Justice if VETS refers a matter to the Department of Justice. Once a service member chooses the path he or she wishes to take, the service member is barred from using the declined option if the chosen path is unsuccessful. While the Department of Labor is charged with overseeing the law and implementing its requirements (The Department of Labor has a specific sub-group within the Department called the "Veterans Employment and Training Services (VETSS)" which investigates complaints and attempts to resolve these complaints. If a complaint cannot be resolved in an amicable fashion, VETS can refer the matter to the Department of Justice).
While this article has dealt with the service member once employed, employers should be aware that it is also unlawful to deny an employee-candidate based solely on his or her involvement in the Uniform Services. The burden of proof to prove other factors resulted in denial of employment is rested squarely on the employer.
While USERRA is a law that may be difficult to navigate and understand, the rationale for its implementation certainly is very clear. Individuals who are willing to leave their safety nets for higher service to the country need to be valued and protected upon his or her return to civilian life. While the law does recognize the sacrifice employers make to allow service-member employees to perform his or her duties, it is very difficult to argue against the safety net that USERRA provides.
