Ahead Of Memorial Day, A Look At Employers' Duties To Vets

By Scott Flaherty

With Memorial Day approaching, the time is ripe for employers to bone up on their duties under federal laws that affect the employment of U.S. military veterans returning from active service.

The Uniformed Services Employment and Reemployment Rights Act lays out a number of obligations for employers when they bring back on board employees who left their jobs for military service. As long as certain conditions are met, the law requires employers to rehire employees who return from a period of active duty of up to five years and who apply for re-employment when they come back.

While there are some limits on USERRA's reach — for one, employees returning from a period of active military duty have only a certain amount of time to apply for re-employment, based on how long they spent in the service — attorneys say it is one of the strongest federal employment laws on the books.

“From an employer's perspective, USERRA is one of the most robust anti-discrimination, positive-obligation-to-accommodate statutes that there is,” said James H. Fowles III, a shareholder at Ogletree Deakins Nash Smoak & Stewart PC and retired U.S. Navy Reservecommander.

Here, experts explain some of USERRA's key aspects:

Anti-Discrimination Provisions

USERRA experts explained that — like other federal employment statutes, including Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act and the Age Discrimination in Employment Act — the re-employment law prohibits employers from discriminating against veterans returning from active service.

That means, in effect, employers are barred from refusing to hire someone returning from active duty based on his or her military service. Employers are similarly barred under USERRA from passing up veterans for promotions or firing them.

As Cohen Milstein Sellers & Toll PLLC's Peter Romer-Friedman put it, “USERRA prohibits discrimination at all stages of employment — hiring, promotion, wages, etc. — on the basis of an individual’s veteran or servicemember status.”

Right to Re-Employment and the 'Escalator Principle'

Beyond the anti-discrimination provisions in USERRA, some of the law's most potent protections for those returning from active military service — and one of the areas where employers might be most likely to slip up — stem from the rights it provides for re-employment based on the so-called escalator principle, attorneys say.

Retired U.S. Navy Capt. Samuel Wright, director of the Service Members Law Center, explained that there are conditions placed on a returning service member's rights to re-employment under USERRA. To qualify, a returning veteran must have provided notice to the employer of his or her military service and must have spent five or fewer years in active duty while with the employer. The veteran also has to return to work within a certain period of time after the end of the military service and must have provided “superior service” during the active duty.

“If you meet those … conditions, then you're entitled to re-employment,” Wright said.

Wright and others noted, however, that instead of simply reinstating an employee to the job he or she had before leaving for the military, an employer is required under USERRA to bring a qualifying employee back based on the escalator principle, which specifies that returning veterans must be re-employed at whatever position they would have obtained if they hadn't gone into the military and had, instead, remained in their job.

“It's very, very unique to USERRA and it catches even savvy employers by surprise,” Fowles said. “The actual obligation is to put him into the 'escalator' position. What that means is the job he would have been in, but for the military service.”

Romer-Friedman said the re-employment provisions and the escalator principle make USERRA “one of the strongest employment laws that we have in the United States” and explained that the law has been particularly important for veterans in recent years, in part because the U.S. military relied to a large degree on Reserve members during the wars in both Iraq and Afghanistan.

“The need for a strong re-employment rights law is more important now" because of the heavy reliance on National Guard and Reserve members, Romer-Friedman said.

USERRA's re-employment rights and the escalator principle extend to other aspects of the relationship between an employer and employee, including leave and pension benefits.

Romer-Friedman explained that employers are required to provide vacation or sick time that an employee would have accrued during the period of time he or she spent during active duty.

“They also can't be forced to use that leave [to cover the period of] military service,” said R. Joseph Barton, a partner at Cohen Milstein.

A similar approach applies to pension benefits, Barton explained.

“If they do come back … it's as if, for purposes of pension, they never left,” he said.

One other consideration with respect to the escalator principle is that it goes both ways — that is, if a returning veteran's position might have been cut as part of a reduction-in-force, an employer may be able to justify a decision not to bring the veteran back on board.

But, as Fowles noted, it's exceedingly rare that an employer would be able to use that interpretation of the escalator principle as a defense for not rehiring a returning veteran.

“I've only advised a client that they were safe to rely on it maybe once or twice,” he said.

Accommodation Requirements for Disabled Veterans

Another key piece of USERRA is the law's requirement that employers accommodate veterans who return to work with disabilities. While veterans, like other employees, are afforded the right to a reasonable accommodation under the Americans with Disabilities Act, the obligations under USERRA for accommodating disabled workers go a step further.

Romer-Friedman explained that, under USERRA, employers have an obligation to provide a reasonable accommodation for a returning veteran with a disability. But if the person can't do that job because of the disability, the employer is also required to make an effort to place the disabled veteran into a position he or she could be qualified for.

Or as Fowles put it: “If they come back and their injury is service-related, you have an obligation to train them to try to get them into another job.”

Beyond the formal accommodation requirements under USERRA for disabled workers, Fowles said, there are other considerations employers should keep in mind when it comes to bringing back military members after a stint of active service — regardless of whether they have some disability.

He explained that while many employers do well on the “front end,” by making a commitment to hire returning military and to meet USERRA's obligations, they often fail to account for the myriad other adjustments veterans must make when they return to life as civilians.

“It's the follow-through that sometimes falls short, not because of a lack of desire or intent, but because of a lack of knowledge,” he said.

As a practical suggestion to account for those adjustments, Fowles added, employers may want to consider training supervisors that employees returning from military service may have behaviors or issues that wouldn't crop up with other employees. Some employers, he said, provide a mentor program in which a former military member who has been with the company for some time would help a newer returning veteran get used to working again in the civilian world.

“It's not as easy as it sounds,” Fowles said.
 

This article originally appeared on Law360

-Editing by Jeremy Barker and Chris Yates.