Delaware Employer Honored for Its Support of Military Employees

Siemens Corporation was selected to receive the 2012 Secretary of Defense Employer Support Freedom Award.  The company was nominated by an Army Reservist with Siemens Healthcare Diagnostics of Glasgow, Delaware.  Only 15 employers nationwide will be honored with the award, the DoD’s highest recognition given to employers for exceptional support of Guard and Reserve employees.  The company was selected from more than 3,000 nominees.DoD_thumb

The employee who nominated Siemens reported that the company started an online Veteran’s Network to share job information and advice with military employees.  The company also partnered with the U.S. Army to allow soldiers to be stationed at Siemens facilities for training.  When Guard and Reserve members are deployed, supervisors maintain contact with them, and the company supports their families whenever they need assistance. In 2011, Siemens pledged to hire 600 veterans – actually hiring 631 in just 3 months. The company has pledged to hire 300 more veterans in 2012.

This year’s honorees will be recognized at an event in Washington, D.C. on September 20.  To learn more about the Freedom Award and this year’s recipients, visit the Freedom Award’s website.

The importance of our country’s military service members cannot be understated. As many service members are returning home, employers also should be particularly mindful of their reemployment and reinstatement obligations pursuant to USERRA.

See also

Two Delaware Employers Selected as Freedom Award Finalists

USERRA’s Statute of Limitations

USERRA’s Statute of Limitations

At our Annual Employment Law Seminar, U.S. Department of Labor Chief of Investigators Kenan Torrans gave an informative presentation on the requirements of the Uniformed Services Employment and Reinstatement Rights Act (USERRA). At the end of the presentation, I jumped in with my two cents and explained that I’d invited Kenan to speak because I think that USERRA compliance will be one of the biggest issues facing employers in the next several years.

One reason for my speculation is that USERRA differs from other employment-discrimination statutes in a number of ways. So employers who may not be familiar with USERRA’s specific requirements and attempt to comply by applying rules that are generally applicable to Title VII or the ADA may find themselves to have run afoul of the law.

Another reason for my worries is the statute of limitations or, more specifically, the lack of one. An employee could, for example, return from military service and seek reemployment. Let’s say the employer is unfamiliar with USERRA’s requirements and denies the employee’s request to return to work. The employee may find other work and the employer would think that all is well.

Well, not necessarily. If the employee’s replacement job does not pay as well or has lesser benefits, the employee could later file a claim against the original employer. And, by “later,” I mean much, much later. As in forever. Because there is no statute of limitations, there is no time limit on when an employee can file a claim.

Which is why a recent decision by the Sixth Circuit caught my attention. In Oswald v BAE Industries, Inc., No. 11-1119 (6th Cir. May 12, 2012), the plaintiff alleged that he’d been terminated due to his military service in Iraq. He filed suit three years after he was let go. The employer moved to dismiss on the grounds that the claim was precluded by the plaintiff’s employment agreement, which required all employment-related claims be brought within six months. The court agreed and found that the employee’s claims were time barred.

USERRA was amended in 2008 to preclude any statute-of-limitations defense and the employment agreement in this case was signed prior to the amendment. So this would not work in new contracts drafted today. However, it is important for employers who have such provisions in employment agreements already in place.

Two Delaware Employers Selected as Freedom Award Finalists

Memorial Day is more than a day off of work. The holiday is a time to remember those who have died in service to the country. One way we pay tribute to the men and women who died in military service is by observing a minute of silence at 3 pm today.

The Freedom Award is an example of the important ongoing effort to support military service members.The Freedom Award is the highest award given by the Department of Defense (DoD) to employers for exceptional support of Guard and Reserve employees. A review board comprised of military and civilian leaders selected 30 finalists from more than 3,000 nominations. Two of the 30 finalists were selected for their support of Delaware reservists–Siemens Corporation in Washington, D.C., who was nominated by an Army Reservist in Glasgow, Delaware; and Kent County Levy Court in Dover, Delaware.

For readers outside Delaware, Dover is the home to the Dover Air Force Base, making the recruitment and retention of military-service members a key objective for employers in Dover and throughout Kent County. Kent County Levy Court was nominated by an employee serving in the Air Force Reserve. The Court supported Guard and Reserve members by regularly featuring a Uniformed Services Employment and Reemployment Rights Act (USERRA) question-and-answer section in its monthly newsletter. The Court also provides a quarterly dinner for families of deployed employees, as well as babysitting services.

The Freedom Award was instituted in 1996 under the auspices of Employer Support of the Guard and Reserve (ESGR), a DoD agency, to recognize exceptional support from the employer community. Since it was first established, 160 employers have been honored with the award. The DoD will announce the 15 recipients of the 2012 Freedom Award early this summer following completion of a national selection board comprised of senior DoD officials, business leaders and prior awardees. Winners will be honored at a dinner in September in Washington.

Congratulations to both Delaware finalists and to all Delaware employers who continue to recognize the value of their military employees.

Resources for Employers: Applicants and Employees Returning from Military Service

Employer’s lawyers have seen an increasing number of questions regarding the obligations relating to employees and applicants returning from military service. There are two important laws that may apply to such individuals–the ADA and USERRA. Although the ADA has been on employer’s radar for years, most are less familiar with USERRA. Now is the time, though, to become familiar. The law imposes many obligations on employers and many of those obligations are different than other employment-discrimination laws.

The EEOC has published a new Guide for Employers titled, Veterans and the ADA. The Guide is intended to provide answers to some of the questions employers can be expected to face as veterans return home from military service and seek employment in the private sector. Some of the points covered by the Guide include:

  • What qualifies a disabled veteran for the protections of the ADA;
  • Information about hiring preferences for disabled veterans;
  • When and how an employer may ask whether a veteran with a disability needs an accommodation;
  • Some of the basic differences between the ADA and USERRA.

The Guide includes references to several helpful online resources–all of which are free. One of the references is to the U.S. DOL’s VETS program. Once on the VETS site, be sure to bookmark the Pocket Guide to USERRA, a detailed and fairly comprehensive FAQ about USERRA’s requirements.

Supreme Court Watch: Part 2

The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming argument in Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA.

In this, the second part of this series, we look to an equally anticipated case, Staub v. Proctor HospitalStaub, like Kasten, is on appeal from the Seventh Circuit.  In Staub, the Supreme Court will examine   under what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced, but did not make, the ultimate employment decision.

Staub sued his employer, alleging that he was discharged in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub prevailed after a jury trial. His employer appealed, and the Seventh Circuit reversed the trial decision.

At trial, Staub proceeded under the “cat’s paw” theory. That theory, derived from the 17th century French fable “The Monkey and the Cat,” is understood today to mean “when one is used by another to accomplish his purposes.” The cat’s paw theory is a way of proving discrimination when the actual decisionmaker is unbiased, but the discriminatory animus of a non-decisionmaker is imputed upon the decisionmaker, typically where the non-decisionmaker has singular influence on the decisionmaker.

Staub, an Army reservist, alleged that the reasons given for his discharge where mere pretext for discrimination based on his association with the military. USERRA prohibits adverse action based upon a prohibited criterion, in this case military status. Like other discrimination law, a plaintiff alleging a USERRA claim must show that the decisionmaker harbored animus toward him and relied upon that animus in choosing to take action against the plaintiff.

Staub won at trial, and his employer appealed. On appeal, the hospital argued, inter alia, that the trial court mishandled the cat’s paw theory. The Seventh Circuit agreed, finding that to succeed on a cat’s paw theory, a plaintiff must demonstrate that the decisionmaker blindly relied upon the non-decisionmaker’s influence. The appellate court also held that prior to admitting evidence of a non-decisionmaker’s animus, a trial court should determine whether a reasonable jury could find the presence of a singular influence over the decisionmaker.

This case is scheduled for oral argument on November 2, 2010. The Court will examine the circumstances which must be present for an employer to be held liable for the unlawful intent of officials who caused or influence, but did not make, the ultimate employment decision.

Resource from the Department of Labor For Military-Spouse Employees

The National Defense Authorization Act (NDAA), amended the Family Medical Leave Act (FMLA) on January 1, 2008.  The NDAA is one of several laws that obligate employers to provide special protections to employees who are members of the Armed Forces.  The Uniformed Services Employment and Reemployment Rights Act (USERRA), is another such law offering similar, but not identical protections to employees who serve in the uniformed services. 

In these times, military service is a reality for many employers who must navigate the labyrinth-like leave laws.  Employers also want to provide their employees with the support they need to transition successfully and safely between the workplace and active duty.  We’ve posted before about some of the many resources and services offered by the U.S. Department of Labor (DOL), each of which is marketed towards a specific audience. 

Yet another resource provided by the DOL is specifically designed for military spouses and the special employment challenges they face as a result of their marital ties to the military. is an online library for military spouse employment, education, and relocation information.  The DOL provides links to employment-related information and other resources for military spouses and military families.  The site is a collaborative project between the DOL’s Women’s Bureau, the Employment and Training Administration, and the Office of the Assistant Secretary for Policy, in cooperation with the Department of Defense.

A few examples of the many resources include:

  • Information on portable career fields and options available with them;
  • Career Center database of hundreds of thousands of jobs, scholarships, and training opportunities;
  • Access to the DOD’s website, Military HOMEFRONT, which offers information on Quality of Life.

These are just a few of the resources available, all designed to assist troops and their families.  Provide your military employees with free access to a number of resources by referring them to this website. Your employees will thank you!

Reservist sues Delaware State Police for Military Service Discrimination

USERRA Reemployment Rights

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.

Discharge protections

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.

Employee benefits

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.

Retirement/pension benefits

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.

USERRA technical assistance also is available from VETS, which can be accessed by calling (866) 4-USA-DOL or by visiting its website. at An interactive USERRA advisor is available online here.