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When Troops Return Home: What the Law Requires from Employers
May 3, 2012
Presented by:
Susan M. Webman, Esq.
[email protected] Fortney & Scott, LLC
1750 K Street, NW, Suite 325
Washington, DC 20006
www.fortneyscott.com
Tele: 202-689-1200 / Fax: 202-689-1209
A Division of Thompson Media Group
© FortneyScott 2012
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Important Legal Notice
This presentation is to provide information regarding rights and obligations under the USERRA with regard to servicemembers returning to civilian employment. These materials are not intended to provide legal advice.
Employers’ representatives should consult either with their in-house counsel or, as directed, with an experienced employment attorney for legal advice about whether, based on specific facts and circumstances, their company complies with the applicable federal and state laws and regulations.
© FortneyScott 2012
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Agenda
Introduction and Background.
Coverage Basics.
Eligibility Criteria.
Employer Obligations.
Reinstatement: When is it required—or not, what to do,
and related issues.
Enforcement and Penalties for Noncompliance.
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Introduction
There are approximately 2.5 million servicemembers
either on full-time active duty or in the Guard and
Reserve.
The last U.S. troops left Iraqi territory on December
18, 2011.
Many servicemembers have reemployment rights upon
returning to civilian life.
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USERRA History
1940: Congress enacted the Veterans’ Reemployment
Rights Act (VRRA).
1946: Supreme Court construed statute to benefit the
veteran.
1994: USERRA enacted to replace VRRA and
incorporates case law under VRRA.
Amended in 1996, 1998, 2000, 2004, 2008 and 2011.
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USERRA Applies to Most Employers
Small and large private employers.
Foreign-owned companies operating in U.S.
Foreign companies owned and controlled by U.S.
companies.
U.S. employers operating outside the U.S.
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USERRA Employers (cont.)
Joint employers and hiring halls.
Successors in interest.
Third-party health insurance companies providing insurance to other companies.
Public employers: Federal Government.
State and local governments.
NOTE: Supervisors and managers can be liable for violations, but may also be protected employees.
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Employers Not Covered
Religious institutions.
Indian tribes.
Foreign embassies.
International Organizations, e.g., the U.N. and World
Bank.
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The Uniformed Services
The uniformed services include:
Army, Navy, Marine Corps, Air Force or Coast Guard and
Reserve components.
Army National Guard and Air National Guard.
The military service academies (e.g., “West Point”).
Reserve Officers Training Corps (ROTC) and;
Commissioned Corps of the Public Health Service.
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The Uniformed Services (cont.)
Any other category of persons designated by the President in
time of war or national emergency.
USERRA also covers intermittent disaster-response appointees
when activated by or in training for the National Disaster
Medical System (U.S. Dept of Health & Human Services).
NOTE: Covers voluntary as well as involuntary service.
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USERRA Applies to Most Civilian Jobs
Full-time; part-time.
Temporary, probationary, and at-will jobs.
Executive employees.
Laid-off employees.
Seasonal employees, in season.
Does not apply to partners, independent contractors.
Does not apply to the relationship between a student
and an educational institution (but similar coverage
exists).
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When is Reinstatement under USERRA
Required? Eligibility Requirements
Employee meets five eligibility criteria:
Left job to enter service.
Gave prior notice.
Served less than five-year limit (many exceptions).
Released without punitive or other-than-honorable discharge.
Reported back or applied for reemployment in timely
fashion.
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Eligibility Criteria (cont.)
Gave prior notice.
No formal requirements: can be oral or written.
Can be from employee, family or the military.
NOT required if military necessity OR otherwise impossible or unreasonable.
NO requirement that employee advise of return.
Served less than five years.
MANY exceptions.
With SAME employer.
Service when with another employer does not count toward limit.
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Eligibility Criteria (cont.)
Timeliness determined by length of time employee was absent.
If period of service is fewer than 31 days: Employee must
report back for next full work period, plus reasonable
transportation time, plus right hours rest (NO application
needed).
If period of service is more than 30 days and less than 181
days: Must apply within 14 days of release.
If period of service is more than 180 days: Employee has up
to 90 days to apply.
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Employer Obligation: Treat Employee as
if on Furlough/Leave of Absence
Employee away from work for service deemed to
be on leave.
Entitled to non-seniority benefits like others on
leave of other kinds.
Examples:
Holiday pay;
Accrual of leave, if other employees on leave
accrue these benefits.
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Employer Obligations:
Reinstatement Entitlements
Prompt reinstatement.
Continuous seniority (escalator principle).
Status includes location, hours, promotion opportunity, etc.
Rate of pay upon reinstatement.
Health insurance without exclusions for preexisting
conditions.
Training after reinstated.
Protection from discharge after reemployment.
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Employer Obligation: Prompt
Reemployment is as Soon as Practicable
Depends on the circumstances of each case.
Usually within two weeks of an application.
If a short absence [periodic Reserve duty], the next regularly scheduled day.
Longer absences [years], more time given to allow employer to reassign or give notice to replacement employee.
NOTE: returning employee bumps replacement employee.
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Employer Obligation: What Job Does the Person Get
Upon Return? Seniority and the Escalator Position
Key to this concept: The job has the seniority, status and pay
that the returning employee would have had if continuously
employed.
The law specifically describes appropriate escalator positions
based on the duration of the leave and the ability of the person
to be qualified for the escalator job.
The job the person gets on return generally depends primarily on
the length or duration of the military service.
Escalator can descend as well as ascend.
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Perquisites of Seniority
Benefit is seniority-based if it accrues with or is
determined by longevity in employment.
Examples:
Rate of pay.
Vacation (rate of earning vacation).
Bidding rights.
Overtime.
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Employer Obligation: What Benefits Does the
Person Get Upon Return?
The employee is entitled to any “benefit of employment” that he or she would have received had the employment not been interrupted to serve in the military, not dependent on short-term performance of work.
Courts interpret the statute to benefit the servicemember and give these terms are given an expansive interpretation. They have been defined to include such benefits as:
Choosing hours;
Holiday pay;
Training;
Overtime opportunities; and
Freedom from an anti-military bias in providing these incidents of employment.
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Rights and Benefits for the Returning Employee:
Reasonable Certainty or High Probability Test
Reasonable certainty or high probability test:
Employee receives right or benefit if same would have been
received if continuously employed.
Applies to discretionary and non-discretionary promotions
and promotions by exam after time for adjustment, training,
qualifying.
NOTE: Also allows employer to continue disciplinary actions
interrupted by service so long as same process for others on
leave.
© FortneyScott 2012
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Benefits Upon Return (cont.)
Employee receives rights arising under employer plan,
practice, etc. AND statutory rights (differs from benefits
during absence).
Example: Employee can claim FMLA rights under USERRA
because s/he can meet hours of work requirement under
FMLA by including hours that would have been worked but
for the absence for military service.
© FortneyScott 2012
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Employer Obligation:
Qualifying a Returning Employee
Employer must make “reasonable efforts” to qualify an employee.
Qualified means can perform the job’s “essential tasks.”
If the person cannot become qualified for the escalator job, the person gets a position of equivalent or nearest approximation of status and pay that the person is qualified to perform.
If the employee cannot be qualified for any job after reasonable efforts and without undue hardship, the employer is not required to rehire.
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Employer Obligation: Who Gets Priority When
There Are Two or More Returning Employees?
The first to take leave has highest reemployment
priority.
The remaining returning employee(s) have rights to
similar job(s)—the nearest approximation to the
escalator position or the pre-service job, after becoming
qualified.
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Rights of the Disabled: Overview
Who is covered?
Employer obligations similar to non-disabled.
Rights are in addition to and broader than Americans
with Disabilities Act (ADA).
What job when the returnee is not qualified for pre-
service job?
Special application rules for employees undergoing
post-service recovery or illnesses.
On-the-job accommodations.
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“Disabled” – Who Is Covered?
USERRA applies to disabled veterans otherwise
entitled to reemployment.
Any person who has a disability incurred in, or
aggravated during, the period of service in the
uniformed services.
Disability can be physical or mental.
Service need not be in war, but can be.
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Employer Obligations to a
Disabled Servicemember
Prompt reemployment in the pre-service position or escalator position, as qualified; OR
If employee no longer qualifies for pre-military job, to qualify the person for nearest escalator job, i.e., by providing training if s/he needs to be retrained or qualified by new training.
Required accommodations for disabled servicemembers.
Disabled servicemembers get extended return period.
Post-reemployment onset of illness.
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Disabled Employee Not Qualified for
Escalator or Pre-Service Job?
Place the employee in a position that provides:
The nearest approximation of the escalator job
(same seniority, status and pay); or
The pre-service job or the nearest approximation
thereto.
NOTE: If the person cannot be qualified for any of
these positions after reasonable efforts, the employer is
excused from the obligation to reemploy.
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Special Rules for Employees
with Service Injuries
Employee’s deadline to apply for reemployment can be
extended up to two years from the date of the
completion of service when hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, the period of service in the
uniformed services.
Employee must report to or submit an application at
the end of the recovery period.
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Injuries Discovered After
Return from Military Service
As USERRA arguably does not apply to injuries
discovered after reemployment, e.g., post-traumatic
stress disorder (PTSD) or reactions to battlefield
toxins—usual workplace rules apply.
NOTE: Employee may have rights under USERRA to
take leave under the Family and Medical Leave Act
(FMLA) because of a serious health condition.
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After Reemployment: Employee is Protected
From Discharge Except for Cause
Applicable only to employees who served more than 30 days.
The duration of the protected period is determined by the length
of the absence:
If the absence was more than 30 days and less than 181 days,
the period is 180 days;
If the absence was more than 180 days, the protected period
is one year; or
The clock begins when the person is fully reemployed with full
benefits.
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What is Just Cause?
For legitimate, non-discriminatory reasons (conduct).
The discharge was reasonable for the conduct in question;
The employer gave the employee notice, express or implied;
and/or
The conduct would constitute cause for discharge.
The job is legitimately eliminated or the employee is
lawfully put in layoff status.
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Employer Obligation:
When is Reinstatement NOT Required?
If employer’s changed circumstances make doing so
impossible or unreasonable.
If pre-service employment relationship was brief,
non-recurrent, with no reasonable expectation of
continuation indefinitely, or for a significant period.
Not required to train or accommodate disability if
the employer suffers undue hardship as a result.
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USERRA Forbids Discrimination
Cannot discriminate in hiring, retention, promotion or
benefits.
Because of membership in service, application to join,
performance of service, application or obligation to
perform service.
Because of employee’s or another employee’s exercise
of right to reemployment, action to enforce right, etc.
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USERRA Forbids Discrimination (cont.)
Employee need only prove protected status or activity
was a motivating factor for the adverse action, not the sole
reason.
Employer then has burden of proof to show other
rationale for adverse action.
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Prohibition Against Discrimination and
Retaliation: Other Considerations
Prohibition on discrimination and against retaliation
applies to ALL jobs and employees.
Employee need not be a member of the uniformed
services—can be spouse or other family member or
another employee who witnessed incident.
Protects against discrimination for military status and
related to military activities.
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USERRA Forbids Harassment
5th Circuit case in March 2011 said a harassment-free
work day is not a “benefit of employment” under
USERRA.
Congress in November 2011 amended law to protect a
servicemember from a hostile environment due to
involvement with the uniformed services.
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The Cat’s Paw Liability
“If a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Staub v. Proctor Hospital - 2011 Supreme Court case.
Not necessary to prove that the official who took the adverse action was “singularly influenced” like a “cat’s paw” by the supervisor with anti-military animus.
Adverse action includes, e.g., changing hours, restricting access to others, demotion, termination.
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Liabilities for Non-Compliance
Failure to comply leads to monetary cost, including:
Back wages and benefits, plus pre- and post-judgment
interest;
Attorney fees, litigation expenses; and
Potential liquidated damages [double].
Can bring the Federal government on site.
U.S. Department of Labor investigation.
Employees can be represented by the U.S. Department of
Justice.
But employee can also take action independently.
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Benefits of Voluntary Compliance
Voluntary compliance helps:
Ultimately less disruptive.
Courts recognize attempts to comply.
Avoids liquidated (double) damages.
Avoids defending stale lawsuit (no statute of limitations).
Morale and/or productivity issue.
Visible show of support for the troops leads to
customer/community approval.
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USERRA and Other Laws and Policies
USERRA acts as a floor not a ceiling.
State laws often cover same topic.
USERRA does not stop you from doing more to
help the employee/servicemember.
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Regulations
DOD regulations require National Guard and Reserve
authorities to consider employers’ requests for schedule
adjustments.
Department of Labor regulations are found at
20 C.F.R. Part 1002.
www.dol.gov/vets.
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QUESTIONS?
Thank you.
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Susan M. Webman, who is Of Counsel with FortneyScott, has practiced law for over 25 years. Ms. Webman provides clients with significant experience and expertise in U.S. Department of Labor and labor and employment matters. In particular, Ms. Webman has extensive knowledge of the laws governing veterans’ rights, labor-management matters, including union-related LM-10 and LM-30 reporting obligations, and International Labor Organization and other international labor matters.
Prior to joining FortneyScott, Ms. Webman was the primary legal and policy advisor at the U.S. Department of Labor enforcing labor-management laws related to veterans’ employment and reemployment rights, employee protection programs including labor protections in the transportation industries, select international and International Labor Organization matters and significant work under the Labor-Management Reporting and Disclosure Act, as well as other matters. She was the principal DOL drafter for the Uniformed Services Employment and Reemployment Rights Act (USERRA), coordinated and led the Executive Branch interagency task force and worked with the White House and Congress prior to its enactment.
Ms. Webman has testified before Congress and represented various clients at Congressional hearings. She has had considerable experience in the regulatory process at Department of Labor, from drafting proposed regulations and coordinating constituent and government-wide acceptance of controversial measures to responding to comments and shepherding the final product through the regulatory process. As the Department of Labor’s Counsel for International Affairs and Opinions, she represented the U.S. in educating developing Eastern European countries establishing domestic labor laws. As Director of the U.S. Merit Systems Protection Board’s Office of Appeals Counsel, Ms. Webman provided recommended decisions on federal employment law to the Board. She also served as Counselor to the U.S. Department of Veterans Affairs Capital Asset Realignment and Enhanced Services (CARES) Commission, as advisor to the Chairman and Executive Director in all matters and as a writer and editor of the Commission’s Report to the Secretary of Veterans Affairs.
Susan M. Webman [email protected]
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Workplace solutions. Legal excellence.
Fortney & Scott, LLC
1750 K Street, NW, Suite 325
Washington, DC 20006
(tele) 202.689.1200
(fax) 202.689.1209
www.fortneyscott.com
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5-3-2012 A Guide to Rights and Obligations Under the Uniformed Services Employment and Reemployment
Rights Act