From D-Day to Afghanistan: Honoring Our Veterans by Reemploying Them

by Orrick - Global Employment Law Group
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Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, imposes various obligations on employers with respect to members of the U.S. military returning to work. Employers knowing their obligations under USERRA can help make our veterans’ transition back to civilian life easier.

Applies to ALL employers

Unlike other employment statutes, USERRA applies to all public and private employers, irrespective of size. So “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).

“For cause” discharge standard

Honoring the special sacrifice made by members of the military, USERRA expressly creates a “for cause” standard of discharge for veterans who return to work after a month or more of military service. If a veteran’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be discharged except for causefor six months following their return to work. Veterans returning from more than one-hundred and eighty (180) days of service are afforded protection from discharge for one year. See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b). To meet the burden—which is the employer’s—of showing cause, an employer must produce evidence demonstrating, not only that it was reasonable to discharge the employee for the conduct at issue, but that the employee had notice that the conduct would constitute cause for discharge. See 20 C.F.R. § 1002.248(a).

Veterans may be entitled to promotion upon their return

Generally, a returning veteran must be hired into the position that he or she would have attained with reasonable certainty if not for his or her military service. If a returning veteran is not qualified for this higher position, the employer may be required to train him or her for the job. See 38 U.S.C. § 4313; 20 C.F.R. §§ 1002.191-199. “[T]he burden of proving that a returning veteran is not qualified under § 4313 falls on the employer….” Bennett v. Dallas Indep. Sch. Dist., No. 3:11-CV-0393-D, 2013 WL 1295338, at *12 (N.D. Tex. March 29, 2013) (quoting Petty v. Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d 431, 444 (6th Cir. 2008)).

With combat troops out of Iraq and the U.S. presence in Afghanistan steadily decreasing, the number of veterans returning to the workforce grows each day. One way for employers to show appreciation for their service is to abide by USERRA.

Click here for a guide on USERRA by the U.S. Department of Labor.

 

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Orrick - Global Employment Law Group
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