What Employers Need To Know About Obligations To Military Personnel

Several thousand U.S. military personnel have recently returned or will soon return from tours of duty.  Employers have obligations to military personnel and their families under both state and federal laws.  

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of service members who are voluntarily or involuntarily absent from their civilian employment to serve in the U.S. military, including the reserves.  USERRA applies to virtually all U.S. employers. 

The law prohibits discrimination against an individual on the basis of their current military obligations, prior military service, or intention to serve.  Critically, an employer must not deny employment, reemployment or any benefit of employment, including promotions and raises, on the basis of an individual’s military status or obligations.

Under USERRA, military personnel that return to employment have the right to be reemployed in the job they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits.  USERRA also requires the employer to make reasonable efforts, such as training or retraining, to enable returning service members to refresh or upgrade their skills to assist them with reemployment. 

In order to be eligible for reemployment under USERRA, military personnel must meet certain criteria, such as providing their employer with advance notice of service and applying for reemployment in a timely manner pursuant to USERRA guidelines. 
USERRA provides employers with three statutory defenses that may be asserted in connection with a claim for USERRA benefits:

1. The employer’s circumstances have changed such that reemployment is unreasonable or impossible;
2. Reemployment would impose an undue hardship on the employer;
3. The employment was for a brief and nonrecurring time period where there is no reasonable expectation that the employment would continue indefinitely.

An employer is not required to reemploy returning military personnel if they can establish one of these three defenses.  The employer has the burden of proof with respect to these defenses. 

Under USERRA, employees returning to work following military service cannot be fired except for “just cause” for a certain time period which varies based on length of service.  Terminations for “just cause” include conduct-related actions, as well as legitimate business necessity, such as layoffs. 

Congress recently passed the VOW to Hire Heroes Act of 2011, which expands these workplace protections by amending USERRA to allow veterans to file hostile work environment claims based on veteran status.  Additionally, disabled veterans are entitled to accommodations by their employers under USERRA and the Americans with Disabilities Act (ADA).  Congress also expanded the Family Medical Leave Act (FMLA) to allow time off for employers to care for family members who were injured during military duty.

Employers should consult with human resource personnel and counsel to develop and implement best practices to recruit, employ and retain veterans in the workplace and comply with state and federal laws.