Tag Archives: Military service

Refresher on the USERRA: Employers’ Obligations Regarding Employees in Military Service

Contributed by Allison P. Sues, December 20, 2019

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This month, two federal circuit court of appeals reversed district courts’ grants of summary judgment in cases filed under the Uniformed Services Employment and Reemployment Rights Act (USERRA). With these twin cases, it seems as good of a time as any to provide a brief refresher on employee rights and employer obligations regarding those in military service. 

On December 3, 2019, the Tenth Circuit reversed a decision by the U.S. District Court of Kansas in Greer v. City of Wichita, which dismissed an USERRA claim alleging that a city museum denied an employee an interview for a supervisory position due to her military service in the reserves.  The Tenth Circuit found that there was sufficient evidence that a jury may find that anti-military animus was a “motivating factor” in the employer’s decision not to interview the employee where a supervisor had previously complained about the employee’s need to attend reserves training because it conflicted with her “real job.”  The court made clear that statements can reflect anti-military animus relevant to a USERRA claim even where the animus relates only to the effect the military service has on scheduling or the employee’s availability and does not contain negative comments about the military service more generally.

The next day, on December 4, 2019, the Seventh Circuit reversed a decision by the United States District Court for the Northern District of Illinois that granted summary judgment to an employee alleging that he was denied benefits due to his military service. In Mueller v. City of Joliet, a police sergeant alleged that he was discriminated against under USERRA when his employer placed him on unpaid leave and required him to use his benefit time when he needed to report to duty for the National Guard. The Seventh Circuit found that the district court incorrectly concluded that the employee’s service in the National Guard Counterdrug Task Force was not uniformed service covered by the USERRA.

These two opinions resurrecting USERRA claims provide a good opportunity for employers to review the key points and protections of USERRA to make sure that they are in compliance with this federal statute:

  • What does the USERRA do? It prohibits employers from discriminating against employees or applicants on the basis of their military status or military obligations. Specifically, employers may not deny initial employment, continued employment, reemployment, promotion or any benefit or employment because of an employee’s military status. 
  • What constitutes uniformed services under the statute? The statute defines uniformed service as the performance of duty on a voluntary or involuntary basis in uniformed service, including the U.S. Reserve forces and National Guards.
  • Does the USERRA also provide reemployment rights for those who must leave their civilian jobs to serve in the uniformed services? Yes. If an employee is eligible to be reemployed, employers must restore employees to the job and benefits they would have attained had they not been absent due to military service. This may require employers to make reasonable efforts to help returning veterans become qualified to perform the duties of the position they would have held but for the military service, including requiring employers to make reasonable accommodations for employees who have incurred or aggravated a disability during their military service. 
  • Who enforces USERRA violations?  Employees may file complaints with the U.S. Department of Labor, Veterans Employment and Training Service or bypass this process and file a civil lawsuit.

It’s a good idea for employers to check their applicable state statutes as well. In some instances states may extend further benefits to employees.

Military Leave is Not Just for Veterans – Addressing Military Leave Requests from Current Employees

Contributed by Michael Wong

Employers often do not question a service member’s request for time off due to being deployed or called up to active duty. However, when an employee comes home from active duty do you know your legal obligations? Better yet, do you know what to do if one of your employees is a service member who regularly requests time off for “training”?

Illinois employers are primarily affected by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Illinois National Guard Employment Rights Law. The problem is under both laws there is no formal process to check whether an employee’s leave is really military related. Moreover, there is no set or required amount of notice and the notice may be either written or oral.

In fact, for military service that is less than 30 days, employers are prohibited from requesting any documentation. As one can imagine, this can make it extremely difficult to verify that the requested time off is actually for military purposes. The best way to address this is to proactively request that employees provide you the name of their military unit and commanding officer’s contact information. Commanding officers are generally willing to verify leave requests and make sure that employers receive advance notice of training and assignments. More often than not, commanding officers provide service members with training schedules to give to their employers (and are often more than happy to ensure that employers receive those schedules).

For military service that exceeds 30 days, employers may request that employees submit an application for reemployment and provide documentation to establish that (1) the reemployment application is timely (leave of 30 to 180 day service employee must return within 14 days of service completion; leave of 180 days or more must return within 90 days of service completion); (2) the employee has not exceeded the five-year service limitation; and (3) the employee’s separation or dismissal from service is not disqualifying (i.e. dishonorable, bad conduct, court martial, etc.). However, it is important to note that if documentation is not immediately available you must re-employ the individual until the documentation does become available.

It is also important that employers understand that when an employee is on military leave, he or she is generally entitled to the same benefits that an employee on a similar furlough or leave of absence would be entitled. Likewise, under USERRA an employer is required to allow an employee and eligible dependents to elect to continue health insurance coverage during military service for up to 24 months. That being said, for leave less than 31 days an employee can still be required to contribute the same amount towards health insurance as active employees and for service of more than 31 days.  After 31 days the employer can provide notice of COBRA rights and require the employee to pay up to 102% of the full premium, which represents the employer and employee share, plus 2% for administrative costs.

Needless to say, military leave is like a minefield for employers and so it is vitally important that you have legal counsel that can guide you through it safely.

 

Heads Up Employers: ‘Tis The Era For USERRA!

Contributed by Carly Zuba

As touched upon in our last posting, many employers may see a mini-influx of men and women from the uniformed services applying for or returning to positions at their companies, as the last of the U.S.troops have withdrawn from Iraq.  As a result, one of the federal laws that employers should be familiar with when a veteran is applying for a job is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Department of Labor has developed an interactive website to help employers understand their responsibilities under the law.  Here is the shortened “411” on USERRA:

  • First of all, what is USERRA?  USERRA’s purpose is to ensure that members of the uniformed services can return to their civilian employment upon completion of their service.  Additionally, USERRA protects individuals from discrimination in hiring, promotion, and retention on the basis of present and future membership in the uniformed services. 
  • Who is covered by USERRA?  USERRA applies to all employers, regardless of their size, and all employees, except for temporary workers.  It is important to keep in mind, however, that many states have laws that go above and beyond the protections provided by USERRA, so employers should ensure that they are in compliance with state military leave laws as well.
  • What does USERRA require of employers?  USERRA requires all employers to reinstate employees to the same or similar position upon the employee’s return from military leave, with no loss of seniority.  Employees who serve 90 or fewer days are entitled to return to the same job they would have held had there been no interruption in employment.  Employees who serve 91 days or more must be reemployed in the same job the employee would have held had there been no interruption in employment or in a position with the same seniority, status, and pay if the individual is qualified for the position. If an employee is no longer qualified to return to the same or similar position, and, despite reasonable efforts of the employer, cannot become qualified, then the employer can offer a position of lesser pay and status, but with no loss of seniority.  Additionally, once a veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty.
  • When must employment and benefits be reinstated to the employee? Under USERRA, employment and benefits must be reinstated if the following conditions are met:
  1. The employee gave notice to the employer that he/she was leaving to perform service
  2. The service did not exceed five years (this is subject to a few exceptions)
  3. The employee  had an honorable discharge
  4. The employee reported back to work within the required time frame (which depends on the length of the employee’s service)

In closing, employers who (1) encounter job applicants who were in the uniformed services, (2) have employees entering the services, or (3) have employees returning from service should ensure that their employment policies and practices adhere to the requirements of USERRA.  As always, an experienced employment counsel can help you make sure this is in fact the case!