From Somalia to Haiti, the United States military has served our country in true patriotic fashion. The federal government has responded to the return home of our dedicated armed forces by enacting a comprehensive law that replaces the prior patchwork of laws governing veterans? employment.
The Uniformed Services Employment and Reemployment Rights Act (?the Act?), effective on December 12, 1994, governs the rights of veterans in seeking reemployment. Perhaps as many as 1.8 million ?non-career? military service personnel will be affected by the Act. The Act guarantees veterans the right to return to their jobs after military service without losing their seniority or benefits, and sets forth certain retraining rights. Handicapped veterans are further protected from discrimination, and health care has been expanded for all veterans.
Coverage
Under the Act, employees who enter the military for a temporary period of time (whether training or annual active duty) are guaranteed that upon return, they must be returned to their jobs without loss of seniority or benefits. This applies, unless the individual was employed by the employer for a brief, non-recurrent period prior to their military service and there was no ?reasonable expectation? that the employment would continue indefinitely. A person may have reemployment rights even after five years of military service, which may be increased for such contingencies such as military training and involuntary active duty extensions.
Discrimination and Retaliation
The Act has broad anti-discrimination and anti-retaliation protections. An employer is expressly prohibited from discriminating against any employee or applicant with regard to hiring, reemployment, retention, promotion, ?or any benefit of employment? because of participation or anticipated participation in a uniformed armed service. Furthermore, an employer may not make past, present or future membership in a uniformed service a ?motivating factor? in an adverse employment action.
In addition, the Act protects employees who have filed a claim or participated in an investigation of a claim under the Act from any retaliation by the employer. Thus, this provision of the Act may protect employees who are not members of the military service as well.
Reemployment Rights
In order to be eligible for reemployment rights under the Act, an employee must apply for reemployment following the completion of the leave for military service. The timing and manner of application is based on the amount of time the employee was on military leave.
For an employee with less than 91 days of service, the Act requires the employer to reemploy the individual in a position that he would have been in if he had been continuously employed without interruption by military service. This would presumably imply the placement in any position of promotion, transfer, or non-probationary status that would have occurred in the normal course of the employee?s career.
If the individual is not qualified for such a position, the employer must reemploy the employee in the same position he or she left. If an individual has more than 91 days of service, the requirements are the same, except that a position of similar seniority, status and pay may be offered. If the individual has a disability connected with military service which disqualifies him for reemployment in the position he would have attained but for military service or in the position that he left, the Act requires the employer to reemploy him in any other position of similar seniority, status and pay for which he is qualified or becomes qualified with reasonable accommodation by the employer.
Where two people are each subject to reemployment to the same position, the Act requires that the individual who first left for military service be employed in that position. However, the Act requires the employer to offer to the other employee a job in a similar position which is equivalent in seniority, status and pay.
Benefits Upon Reemployment
Upon reemployment, the Act entitles the employee to all of the benefits that the employee had at the beginning of the military leave, plus any additional benefits, including seniority, he would have attained had he not been on military leave. The costs of such benefits must be paid, however, in the same fashion that benefits are paid for all other employees on other kinds of leave. The Act also provides for continuous health plan coverage for up to one and one half years to persons who are absent as a result of military service.
Discharge Prohibition
Finally, the Act protects individuals reemployed from military service from discharge, except for cause for a certain amount of time, depending on the length of military service. If the period of military leave was more than 180 days, the employee cannot be discharged (except for cause) for one year. If the period of service was more than 30 days but less than 181 days, the employee cannot be discharged (except for cause) for six months.
Enforcement
The Act gives the Department of Labor increased power to investigate and settle complaints of violations of the Act, including the authority to subpoena records and witnesses. An individual or the Secretary of Labor may file a federal lawsuit to remedy violations under the Act, and an individual who prevails under such a claim may be entitled to lost pay and benefits, reinstatement, attorneys? fees, expert witness fees and other litigation expenses. If an employer?s violation of the Act is deemed to be ?willful,? a court may award ?double damages.?
The reemployment rights of returning veterans are a vitally important and complicated topic for employers. As always, competent legal representation is the best way to ensure compliance with the complex provisions of this Act.