America’s veterans are deservedly in the spotlight every year on November 11 as we recognize and celebrate their commitment to our country. But according to Fisher & Phillips, a national management-side labor and employment law firm, private employers may not realize the breadth of ongoing commitment they must provide to veterans who so proudly protect and serve us all year round.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), which became law in 1994, establishes rights and responsibilities for uniformed service members and their civilian employers. It provides assistance to veterans to help ease the process of returning to civilian life once their military service is completed. USERRA also requires employers to reemploy veterans, grant leave to reservists for military trainings, and ensure no one who was or is in the armed forces is discriminated against on account of their military service.
“USERRA allows employees of private employers to serve their country knowing they have secure job rights when they return to civilian life,” said Art Lambert, partner in the Dallas office of Fisher & Phillips. “In my experience, most employers want to help our service men and women when they complete their military duty. However, some businesses may not fully understand what they are required to do, and may later find themselves at the center of legal crosshairs under USERRA. Most surprising to some is that an employer may actually be required to promote a returning employee if other another employee in a similar position was promoted during their absence. Further, USERRA provides protection for disabled veterans through a reasonable accommodation process.”
USERRA requires civilian employers to:
- Reemploy veterans who left for training or to serve in the armed forces once they have completed their service;
- Allow reservists to leave for military training and examinations;
- Provide health benefits to service men and women when they are fulfilling military duties; and
- Ensure that new employees, current employees, and employees currently on leave do not face discrimination based on military service.
Common Questions From Civilian Employers
Q: Are employers required to reinstate former employees who have been away fulfilling military service?
A: Yes. Generally, if employees leave a company for military service, employers are required to reemploy them for five years following their departures. This applies to those who are released from service under conditions other than dishonorable. Employers should treat the departures as furloughs. As such, employers are required to allow employees to keep health coverage provided by the employer while they are away.
Q: Are employers required to reinstate returning veterans to the same positions held prior to departing for military duty?
A: Typically, yes. Employers must reinstate returning veterans to the positions they would have held had they not left, which may require employers to give the returning veterans promotions, salary increases, or additional training upon return. In addition to reinstatement to the position he or she would have had if he or she never left, employers are required to immediately offer the veteran and dependents full benefits. Also, there are specific protections against discharge except for cause.
Q: How much time do returning employees have to complete applications for reemployment?
A: There is a sliding scale of when employees must apply for reinstatement. It depends on a variety of practical factors including length of service.
Q: Are employers required to allow reservists to leave for all trainings requested, even if some may interfere with important deadlines?
A: In short, yes. According to the Employer Support of the Guard and Reserve, a Department of Defense office, employees are only required to give reasonable notice. Employers cannot veto the timing, frequency, or duration of leave. However, employers may contact the employees’ Commanding Officers to resolve conflicts. The Commanding Officers will try to accommodate reasonable requests to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment.
If possible, employers should try to avoid rescheduling, as employees and others may be put in harm’s way if affected employees are not able to train with the units in which they will serve. Employers also should note payment requirements. Employers are not required to pay hourly employees while they are training, however under the FLSA, must pay salaried employees the entire week for any partial week they may work.
“For employers, it is a delicate and complex balance between managing the demands of their business and fulfilling their commitment to our brave servicemen and women,” said Art Lambert. “But it is important that they understand the law to make sure that battles take place in the field, and not in the courtroom.”