With the still unresolved political question of whether to “escalate” or “withdraw” from the Iraq war, America’s service men and women continue to be called away from their civil jobs to assist with the war effort. At least one source reports that, since September 11, 2001, approximately 550,000 reservists and members of the National Guard have been called to active duty. Of those, 475,000 have returned to the civilian work force.

The magnitude of these statistics makes it critical for employers to be aware of and comply with the state and federal job protection rights applicable to military personnel

Job Protection Rights under California State Law

California’s Military and Veteran’s Code makes it a misdemeanor to discharge, refuse to hire, or otherwise discriminate against a person because of his or her membership in a state or federal military service, or because of attendance at an ordered military training or duty. A member of the National Guard or Reserves is entitled to a temporary leave of absence without pay, not to exceed 17 days annually, for required training or similar duty. Employers that fail to comply with these mandates may be liable for actual damages and reasonable attorneys’ fees.

Job Protection Rights under the Federal “USERRA” Law

Federal job protection rights for military personnel are far broader than state protections. The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) was enacted by Congress to minimize the disadvantages to individuals who leave civilian jobs to serve in the U.S. military. USERRA affords civil job protection rights to military personnel. Below is a summary of the law’s key provisions.

Applicability: USERRA applies to all public and private employers, regardless of size. This includes state and federal government employers. USERRA covers all persons in the uniformed services regardless of how long they have been in their civil jobs, or whether they are classified as probationary, permanent, full-time, or part-time employees. Only seasonal, brief, or non-recurring employment is excluded. The “uniformed services” covered include the Army, Navy, Marines, Air Force, Coast Guard, Public Health Service Commissioner Corps, the reserve components of these services, and any other category dispatched by the President in time of war or national emergency. The Army National Guard and Air National Guard also are covered.

Length of Leave: Under USERRA, an employer is required to provide an unpaid leave of absence of up to five years to military personnel who are called to active duty, active duty training, inactive duty, inactive duty training, and full-time National Guard duty. Leave also must be provided to allow absence for a physical examination and for funeral honors performed by National Guard or Reserve members. These rules apply whether the leave is voluntary or involuntary.

Employee Obligations: An employee must give his or her employer written or verbal notice of the call to service, unless military necessity makes it impossible or unreasonable to do so. No specific “notice” period of time is identified in the statute. An employee also must give notice of the intent to return to work. The amount of notice required starts at the end of the military service, and varies between eight hours and 90 days, depending upon the length of the absence. If the returning veteran is hospitalized or convalescing from a service-related injury, the notice period is extended until the end of recovery from the injury for a period not to exceed two additional years.

Benefits: Although an employee called to active duty typically is given full medical benefits by the government, employers must continue to provide medical benefits during military leave. If the duration of the leave is fewer than 31 days, the coverage must continue uninterrupted as it existed prior to the leave. If the leave reaches or exceeds 31 days, the employer must offer benefits similar to those required by COBRA.

If the employer provides any seniority-based benefits, service time must be counted toward eligibility for the benefit. Service time also must be counted toward pension benefits if the employee returns to work. Employers must provide an opportunity for employees to make contributions to cover the period the employee was on military leave.

Reinstatement: When an employee returns from military duty, he or she must be reinstated to the position the employee would have held if he or she had not performed the military service, even if this means a promotion. This is referred to as the “escalator principle.”

If the employee has not been properly trained for an escalated position, the employer is obligated to provide whatever training is needed. If the training efforts are not successful, then the returning employee is entitled to the job he or she previously held, rather than the higher level position.

If , because of a service-related injury, and after all possible reasonable accommodations, the veteran cannot become qualified for the escalated position or perform his or her previous job, the employer must find the veteran a position of equal status and pay, or one that is most nearly equivalent. If the veteran cannot become qualified because of a reason that is not service-related, then he or she must be placed in a lower level position with the same seniority. Lesser pay may be allowed in these limited circumstances.

Exceptions to Reinstatement: An employer need not reinstate an employee after military leave if: (1) he or she received a dishonorable or bad conduct discharge; (2) reemployment is “unreasonable or impossible” due to a change in business circumstances (no openings, filling the position, and successor ownership do not qualify for this exception); (3) reemployment would cause an undue hardship to the employer; or (4) the initial job was for a non-recurrent, brief period of time, with no expectation of reemployment, notwithstanding the employee’s military service.

Protections Against Discrimination: USERRA prohibits discrimination and retaliation by employers with regard to past, current, or future military obligations. These protections cover discrimination in hiring, promotion, reemployment, termination, and the application of benefits. Employers also are prohibited from retaliating against anyone who files a claim under USERRA, testifies, assists, or participates in a related investigation or exercises any USERRA right. These prohibitions apply to all employees, whether or not they have performed military service.

Protections Against Termination: USERRA also protects returning veterans from termination. If an employee has served in the military for a period of between 31 and 180 days, he or she may not be terminated without cause for six months following reemployment. If the service was for more than 180 days, then the employee cannot be terminated without cause for a period of one year. There are no protections against termination for an employee whose military service was for 30 days or less.

Enforcement of Job Protection Rights

With the rise in military leaves brought on by the Iraq War, employers are seeing an increase in complaints and lawsuits by veterans seeking to enforce their USERRA rights. The statute provides that an aggrieved employee may seek enforcement through the U.S. Department of Labor, the U.S. Attorney General, or by filing a private civil suit. Available relief includes job reinstatement, back pay, lost benefits, and attorneys’ fees and costs. A court also may double the award for back pay and lost benefits as a sanction.

Tips for Employers

In a case of first impression, the U.S. Court of Appeals for the First Circuit recently ruled in Velazquez-Garcia v. Horizon Lines of Puerto Rico Inc. that a burden-shifting standard applies to claims of discrimination brought under USERRA.

To prevail on a USERRA claim, the employee must make an initial showing that his or her military service was a “motivating factor” for an adverse employment action (in this case, a firing), and the burden then shifts to the employer to prove the action was unrelated to the military service. The Court emphasized that the USERRA burden-shifting test is markedly different from the “McDonnell-Douglas” test that applies to Title VII and California state law discrimination claims.

Under McDonnell-Douglas, the final burden falls on an employee to prove the employer’s stated reasons for an adverse employment action are pretextual. Under USERRA, however, the final burden rests instead with the employer to prove the stated reason was not pretextual. Significantly, the Velazquez-Garcia Court held that the question is not whether the employer was entitled to fire the employee, but whether it would have done so absent the military service.

Given the stringent legal burdens being placed on employers in this area, all businesses should take steps to ensure compliance with state and federal military leave statutes. The first step is to adopt an appropriate policy, which should be included in the employee handbook. The policy must be consistent with the laws, and it also should be updated as new interpretations of the leave statutes develop.

In addition, employers must ensure all benefits policies and practices are consistent with the military leave statutes. Also, Human Resources and other managers should be trained to identify the many issues that come into play when an employee either needs a leave for military duty, or is returning from duty.

Finally, employers carefully evaluate the requirements of state and federal law before denying reinstatement to any employee returning from military leave.

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