Thank You for Your Service: The Broad Protections Granted to Members of the U.S. Military Returning to the Civilian Workforce

by Orrick - Global Employment Law Group
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Images of American flags and proud men and women in uniform were all around last month, as they are every Memorial Day. It is a good time to reflect on the military service of so many of our fellow citizens. It is also a good time for employers to familiarize themselves with their obligations toward members of the U.S. military returning to the civilian workforce.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-4335, governs various aspects of veterans’ return to the workforce. USERRA differs from other employment statutes in a number of significant ways. Here’s a few:

No minimum employer size

Unlike statutes such as Title VII or the Family and Medical Leave Act (“FMLA”), USERRA applies to all public and private employers, irrespective of size. In other words, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).

No statute of limitations

USERRA has no statute of limitations. See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311. In one recent decision, alleged USERRA violations that occurred six (6) and eighteen (18) years prior to the filing of suit were allowed to proceed. See Mock v. City of Rome, 851 F. Supp. 2d 428, 436 (N.D.N.Y. 2012).

“For cause” discharge standard

Although, pursuant to the “at-will” employment doctrine, employees at a non-unionized employer may be discharged for a good reason, a bad reason (provided it’s not based on a statutorily protected characteristic or activity) or no reason at all, this is not the case for returning veterans. Indeed, 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 cause for 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 are entitled to promotion upon their return. Maybe.      

Generally, employers must hire back each returning veteran and, under USERRA’s “escalator principle,” each veteran must be hired into the position that he or she would have attained with reasonable certainty if not for the military service interruption. If a returning veteran is not qualified for the 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)). However, USERRA’s escalator principle can also result in negative consequences when the veteran returns to the workforce, including lay-off or termination, if, with reasonable certainty, such consequence would have occurred during the returning veteran’s military service. See 20 C.F.R. §§ 1002.194.

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. Employers knowing their obligations under USERRA can help make our veterans’ transition back to civilian life easier and is one way to show them that their service was appreciated.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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