Employer Obligation

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.


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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.


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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.


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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.

http://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

[email protected]

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

Documents

Employer Obligation