The latest headlines of the local newspaper, the News Journal underscore what is becoming the latest trend in employment lawsuits: military service discrimination.
On Wednesday, March 26, an Army lieutenant colonel serving in in Baghdad filed a federal lawsuit alleging he was fired from the Delaware State Police in violation of state and federal laws that protect military reservists from discrimination and retaliation because of their military service.
45-year-old Lt. Col. Keith W. Janowski claims that he encountered harassment, discrimination and retaliation because of his duties and obligations “as a citizen-soldier in the U.S. Army Reserve” during his 16 years on the state police force. He also alleges that after his return from active duty in 2003, he asked for retraining in civilian searches but was denied. He was fired in 2005 for conducting a improper search and exercising poor judgment, allegedly because he missed a pack of cigarettes during a search of a person.
This lawsuit supports the national statistics that more and more military personnel are excercising their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As those employees return from active duty, employers face extensive and often confusing obligations imposed under USERRA. The law was enacted in 1994 to encourage civilian military service by attempting to eliminate the disadvantages employees face when called into service. The law governs employer’s responsibilities to employees during periods of military leave and upon return to employment.
Unlike many employment laws, USERRA applies to all employers, public and private, regardless of size. It requires you to grant unpaid leaves of absence for employees called into military service. Employees may elect to use accrued vacation pay, annual leave, or other accrued paid leave during military leave, but you may not require them to use it during that time. Upon returning from military service, USERRA grants eligible employees the right to reemployment.
Eligibility for Reemployment
Eligibility for reemployment under USERRA requires employees to meet the following criteria:
1. Notice. Employees must provide employers with advance notice of their military service obligation. The notice may be verbal or written and may be provided by a military officer. Many employers request that employees provide copies of induction documents, training notices, or other military orders. The advance notice requirement is waived if military necessity makes advance notice impossible or unreasonable.
2. Exclusions. Reemployment rights are available for absences of up to five years of cumulative military service. Many of the most common categories of military service for employees don’t count toward that five-year limitation period. For example, military service during a time of war or national emergency is exempt from the five-year period. President Bush declared a state of national emergency following the September 11, 2001, attacks and authorized mobilization of military troops.
3. More Exclusions. Military service in support of Operation Iraqi Freedom and Operation Enduring Freedom isn’t counted toward USERRA’s limitation period. Another exception you must be familiar with is the annual and weekend training required for National Guard members and reservists.
4. Disqualifying Discharges. Reemployment rights under USERRA don’t extend to an individual with a disqualifying discharge from military service. A disqualifying service discharge means (1) a separation from service with a dishonorable or bad-conduct discharge, (2) a separation from service under “other than honorable” conditions, (3) dismissal of a commissioned officer by court martial or presidential order, and (4) a “dropped from the rolls” separation caused by an absence without authority or civil imprisonment.
5. Reapplication Period. To maintain reemployment rights, an employee must report to work or apply for reemployment within a specific period of time determined by the length of military service. A written application for reemployment is unnecessary; an employee is required to inform his employer that the period of military service has been fulfilled. If the military leave is less than 31 days, the employee must return to work eight hours after returning home from completion of military service at the beginning of the first full regularly scheduled work period. For military leaves of absence between 31 and 180 days, the employee must submit an application to the employer within 14 days following the completion of military service. For leaves in excess of 180 days, the employee must apply for reemployment within 90 days of completing military service.
6. Inability to Return to Work. USERRA extends those time limits for up to two years if an employee is unable to return to work because of a service-related illness or injury. Any employee failing to report to work or reapply for employment within the appropriate time frames is subject to the employer’s policies regarding any unexcused absence from work.
Employer duties to reemploy
At the conclusion of military service, an employee is generally entitled to reemployment to the position she would have held or attained but for the period of military service. In that respect, USERRA is contrary to the concept of employment “at will” and affects your personnel decisions during the period of active military service. Not surprisingly, failure to reinstate a former employee following a period of military service is one of the most common complaints under USERRA.
Employees serving less than 91 days of military service must be reemployed in a position they would have attained but for the period of military service, provided they’re qualified for the position. If an employee isn’t qualified for the position after you have made reasonable efforts to qualify her, you must return her to the position held before military service.
Employees absent for military service longer than 90 days must be reemployed in the position they would have attained or in a position of comparable seniority, status, and pay, provided they’re qualified to perform the job. If a returning employee isn’t qualified for the position, you must make reasonable efforts to qualify her for the position. If those efforts fail, you must return her to the position held before military service or a position of comparable seniority, status, and pay.
If you’re reemploying an employee with a disability incurred or aggravated during military service, you must make additional efforts. First, you must make reasonable efforts to accommodate the employee’s disability so she may become qualified for the position she would have attained if continuously employed. If she isn’t qualified despite your reasonable accommodation efforts, she must be placed in a position of equivalent seniority, status, and pay as long as she’s qualified for the position or can become qualified for the position through your reasonable efforts. Last, if the employee doesn’t qualify for the equivalent position, she must be employed in a position that “most nearly approximates” the equivalent position in seniority, status, and pay.
Exceptions to reemployment rights
There are limited exceptions to the obligation to reemploy employees returning from military service. Reemployment isn’t required when doing so would be impossible or unreasonable, such as when a reduction in force during the leave period has eliminated the employee’s position.
Once reemployed, USERRA affords returning servicemen and servicewomen protection from discharge without cause. The extent of that protection is based on the length of military service. Individuals reemployed after 181 days or more of military leave may not be fired without cause for a period of one year after reemployment. Individuals reemployed after 30 to 180 days of military service may not be fired without cause for six months after reemployment. There’s no protection against discharge without cause for individuals serving less than 30 days.
Discrimination and retaliation protections
USERRA prohibits you from discriminating against persons with past or present military obligations when making decisions relating to hiring, promotion, reemployment, termination, and employment benefits. You’re prohibited from retaliating against individuals who file complaints or exercise any right under USERRA.
Under USERRA, employees on military leave are entitled to the same benefits provided to employees on other leaves of absence. For example, if you provide employees on Family and Medical Leave Act leave with continued health, life, or disability insurance or allow employees to continue to accrue vacation benefits, employees on military leave must be afforded the same benefits.
The commencement of military leave is a COBRA-qualifying event, and continued health insurance coverage is available to employees at their expense. On December 10, 2004, President Bush signed the VBIA into law, which expanded the continuation period for military families from 18 months to 24 months. The extended continuation period is effective for continuation elections made on or after December 10, 2004. If you haven’t already done so, you should revise your health plan administration to reflect the extended continuation period available for employees entering military service.
USERRA contains expanded pension rights for eligible employees. Periods of military service may not be treated as a break in service for an employer-sponsored pension plan. For vesting and accrual purposes, the military service period is considered service with an employer. You’re required to make any pension contributions for employees returning from military service you would have made if they hadn’t been on military leave.
If you sponsor a “contributory” plan that offers benefits only when the employee makes contributions, returning employees must be given three times the military service period, not to exceed five years, to make up any missed contributions. You’re obligated to make matching contributions consistent with the amount contributed by the employee.
VBIA: notice of USERRA rights and duties
In addition to extending the health insurance continuation period from 18 to 24 months, the VBIA also requires you to notify present and returning employees of “the rights, benefits, and obligations of such persons and such employers” under USERRA. The notice requirement became effective on March 10, 2005, and can be met by posting a notice in the location other workplace notices are customarily hung. The U.S. Department of Labor’s Veterans Employment and Training Service (VETS) has created a poster that contains the notices required under the VBIA. A color copy of the poster, suitable for printing, is available at no charge on the department’s website.