Employment Protections for the Citizen-Soldier

Who Is Covered by the USERRA?

It is a safe bet to assume that all employers are covered by the Act. Its coverage is perhaps broader than any other federal employment statute. The Act covers almost all employers, regardless of how small, including state and federal governments.

It protects nearly any employee who applies or serves — voluntarily or not — in the military, whether on active duty or in the reserves. Although many states and municipalities have enacted their own laws that create additional protections for service members, the Act supersedes any state law or contract that attempts to limit the rights of service members.

Who is Ineligible?

The overwhelming majority of service members are upstanding citizens, but there are a few bad apples. Employers with little military experience may be unaware that thousands of service members are administratively discharged from the military, or court-martialed. Service members separated from the military receive a discharge certificate — a DD Form 214 — that states the characterization of the service member's service. If it appears that an employee was dishonorably discharged from the military, employers should ask to see his or her DD Form 214. Service members who are separated from the military with any characterization of their discharge of less than “honorable” are not protected by the Act.

Employment Protections to Service Members

Re-employment Rights

A demobilized service member must be re-employed in the job he or she would have held had he or she remained continuously employed, or to a position of equivalent seniority, status, and pay. This is commonly called the “escalator provision,” and entitles the returning employee to any seniority-related benefits, promotions, transfers, or other benefits that he or she would have received during the time that passed while in military service. Employers also have a duty to retrain returning employees to ensure the employee has the skills to match the position to which he or she is entitled under the escalator provision.

The Act does provide some safe harbor for the employer. If the employer has changed circumstances or re-employing the employee would pose an undue hardship, then the employer is not required to re-employ the employee. The Act is vague about these standards, and given the policy and legislative history behind it, it may be unwise for an employer to rely on these defenses.

Protection Against Discrimination and Reprisal

The Act lays a global cloak of employment protection for employees who serve in the military. It prohibits an employer or a prospective employer from denying a service member employment, re-employment, retention in employment, promotion, or any benefit of employment due to the individual's military service or application for military service. It also contains an anti-retaliation provision for employees who invoke the protections of, or participate in a proceeding under, the Act.

A potent aspect of the Act is that it shifts the burden of proof to the employer to show that it did not discriminate against an employee due to his or her service. Additionally, an employer is considered to have discriminated against the employee if the employee's protected status was a “motivating factor.” Also, a court may waive the cost of the filing fee for filing a lawsuit. In sum, the Act is very much pro-employee and, unlike most other employment statutes, places the burden on employers to show that they did not discriminate against the employee.

'For-cause' Employee Status

Most employees are “at-will,” which means that an employer can fire an employee for any reason other than an illegal one (eg, race or age). But once re-employed, certain returning service members may not be discharged except “for cause,” for a specified period of time following their return. Employees who served more than 180 days become “for-cause” employees for 1 year following their return. Employees who served from 31 to 180 days are entitled to 6 months of “for-cause” status.

Continuation of Health Care Benefits

Employee participants in the employer's health plan may continue health care coverage for themselves and their dependents for up to 18 months from the date their military leave began.

Continued Participation in Retirement Plans

Retirement plans cannot treat returning employees as having incurred a break in service due to military leave. After the employee is re-employed, employers must provide make-up contributions for plan service periods during which the employee was in service. The employee is not required to re-qualify for participation in the retirement plan.

Other Benefits

The Act requires employers to treat employees called to military service as on leave or furlough and, accordingly, must provide all other benefits that similarly situated employees on leave enjoy.

No Entitlement to Pay

Although some employers have generously offered differential pay, the Act does not require this.

Re-Employment

The Act envisions dialogue between the employer and service member employee. As such, the Act requires employees to inform their employer of their service. Service members participate in a variety of missions. Some reservists serve one weekend per month on a predictable schedule. Others may have sporadic training or deployments, contingent upon the needs of the military. Whenever possible, an employee called to military service must give advance notice of his mobilization.

Upon completing his or her service, the employee must “apply” for reinstatement by notifying the employer of his or her intention to return to work. The duration of the employee's service dictates when he or she must “apply” for return to work. If the employee service was less than 31 days, or if the employee was absent for any length of time for a “fitness for duty examination,” then he or she must notify the employer of his or her return on the first regularly scheduled work period on the first calendar day following the completion of the period of service. If the employee's service was between 31 to 181 days, the employee must submit an application for re-employment not later than 14 days after the period of service. If the employee's service was more than 181 days, the employee must submit an application for re-employment not later than 90 days after the period of service.

Remedies for a Violation of the USERRA

Administrative And Civil Actions

An employee can invoke the protections of the Act by filing a complaint with the Department of Labor Veterans Employment and Training Service (VETS) office. Similar to the Equal Employment Opportunity Commission, VETS may investigate charges of discrimination. If the charge has merit, the employee can request the Justice Department or a local United States Attorney's office to prosecute a civil action on his or her behalf — however, it is rare for a U.S. Attorney's office to prosecute such actions. Employees can file a civil action directly without first filing a charge with the government — unlike Title VII, an employee is not required to first exhaust his or her administrative remedies before filing suit. Compared with other employment statutes, the Act makes it easier in many procedural ways for an employee to sue an employer.

Legal Remedies

A prevailing employee is entitled to receive back pay, reinstatement, attorneys' fees, expert witness fees, and, generally, costs of litigation, in addition to double damages in the event of a “willful” violation. A court may use its full equity powers to assure compliance and vindicate the rights of a prevailing employee.

Shortcomings of the Legal Remedies

Compared with other federal employment law statutes, the USERRA is actually less generous in terms of recoverable damages. For example, unlike Title VII, a USERRA plaintiff may not recover compensatory or punitive damages. Given the importance and societal value we place on the citizen-soldier, it does seem unjust that recoverable damages are limited. Congress has recently considered equalizing the disparity between other employment statues and the Act; such modification to the Act may be forthcoming in the near future.

Administrative Enforcement

The administrative enforcement of USERRA is relatively weak, especially when compared with the EEOC's enforcement of Title VII. An employee who believes his or her employer was discriminatory because of the employee's military service can seek help from VETS. This agency is responsible for investigating and attempting to resolve all USERRA complaints. Oddly, however, it is VETS' policy to not represent an employee with a USERRA claim if the claimant is represented by an attorney. This policy is peculiar given that all other administrative agencies charged with enforcing an employment statute actively work with a claimant's counsel, and, indeed, keep a roster of attorneys to refer claimants. Although there is no statutory authority to support VETS' anti-lawyer policy, a claimant and his attorney must be aware VETS will shut the door to claimant if he or she is represented by an attorney. Finally, unlike the EEOC, VETS has no in-house trial attorneys to prosecute actions on behalf of service members who have USERRA claims.

Further hampering effective enforcement of USERRA is that a claimant must then convince yet another federal agency to pick up the case: the Department of Justice. The Justice Department has authority for prosecuting any action against an employer, but it rarely exercises that authority.

Finally, the Employer Support of the Guard and Reserve (ESGR), a Defense Department agency, provides ombudsmen services to employers and service members. But the support is limited to providing information and attempting to mediate disputes. The EGSR can be found at http://egsr.org and has links to ombudsmen throughout the country as well as additional information.

Conclusion

Our national defense structure will continue to heavily rely upon reservists. Coupled with the expectation that the United States will remain in Iraq and Afghanistan for the next several years, employers are well advised to examine their employment policies to ensure that they comply with the USERRA.

Throughout its history, the United States has opposed a standing professional military. Instead, our nation has structured its armed forces so that our national security heavily relies upon reservists, particularly after Vietnam. Since 9/11 alone, nearly 200,000 reservists have been mobilized, with thousands more expected to be so. And many of those reservists who completed their initial mobilization were later remobilized for a second time. In a dramatic departure from the past, the Defense Department has begun deploying Guardsman to such places as the Balkans, the Sinai, Iraq, and almost everywhere else the regular forces go.

Many of these mobilized citizen-soldiers have valuable skills that are of particular use to the military. After major military operations came to a close in Iraq and the mission evolved into one of stabilizing the country, police officers were in high demand. The military then reached out to reservists with this skill set and mobilized them, which in turn created a labor shortage for some local police departments. Employers often find themselves stuck between competing interests: running their business versus “supporting the troops.” This tension is often a source of employment disputes.

When mobilized, these citizen-soldiers leave behind families and careers. To mitigate this hardship, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or Act), which provides reemployment protection and other benefits for employees who are called to military service. Because of its broad protections and remedies, HR professionals are well advised to ensure that their employers are in compliance with the Act.

Who Is Covered by the USERRA?

It is a safe bet to assume that all employers are covered by the Act. Its coverage is perhaps broader than any other federal employment statute. The Act covers almost all employers, regardless of how small, including state and federal governments.

It protects nearly any employee who applies or serves — voluntarily or not — in the military, whether on active duty or in the reserves. Although many states and municipalities have enacted their own laws that create additional protections for service members, the Act supersedes any state law or contract that attempts to limit the rights of service members.

Who is Ineligible?

The overwhelming majority of service members are upstanding citizens, but there are a few bad apples. Employers with little military experience may be unaware that thousands of service members are administratively discharged from the military, or court-martialed. Service members separated from the military receive a discharge certificate — a DD Form 214 — that states the characterization of the service member's service. If it appears that an employee was dishonorably discharged from the military, employers should ask to see his or her DD Form 214. Service members who are separated from the military with any characterization of their discharge of less than “honorable” are not protected by the Act.

Employment Protections to Service Members

Re-employment Rights

A demobilized service member must be re-employed in the job he or she would have held had he or she remained continuously employed, or to a position of equivalent seniority, status, and pay. This is commonly called the “escalator provision,” and entitles the returning employee to any seniority-related benefits, promotions, transfers, or other benefits that he or she would have received during the time that passed while in military service. Employers also have a duty to retrain returning employees to ensure the employee has the skills to match the position to which he or she is entitled under the escalator provision.

The Act does provide some safe harbor for the employer. If the employer has changed circumstances or re-employing the employee would pose an undue hardship, then the employer is not required to re-employ the employee. The Act is vague about these standards, and given the policy and legislative history behind it, it may be unwise for an employer to rely on these defenses.

Protection Against Discrimination and Reprisal

The Act lays a global cloak of employment protection for employees who serve in the military. It prohibits an employer or a prospective employer from denying a service member employment, re-employment, retention in employment, promotion, or any benefit of employment due to the individual's military service or application for military service. It also contains an anti-retaliation provision for employees who invoke the protections of, or participate in a proceeding under, the Act.

A potent aspect of the Act is that it shifts the burden of proof to the employer to show that it did not discriminate against an employee due to his or her service. Additionally, an employer is considered to have discriminated against the employee if the employee's protected status was a “motivating factor.” Also, a court may waive the cost of the filing fee for filing a lawsuit. In sum, the Act is very much pro-employee and, unlike most other employment statutes, places the burden on employers to show that they did not discriminate against the employee.

'For-cause' Employee Status

Most employees are “at-will,” which means that an employer can fire an employee for any reason other than an illegal one (eg, race or age). But once re-employed, certain returning service members may not be discharged except “for cause,” for a specified period of time following their return. Employees who served more than 180 days become “for-cause” employees for 1 year following their return. Employees who served from 31 to 180 days are entitled to 6 months of “for-cause” status.

Continuation of Health Care Benefits

Employee participants in the employer's health plan may continue health care coverage for themselves and their dependents for up to 18 months from the date their military leave began.

Continued Participation in Retirement Plans

Retirement plans cannot treat returning employees as having incurred a break in service due to military leave. After the employee is re-employed, employers must provide make-up contributions for plan service periods during which the employee was in service. The employee is not required to re-qualify for participation in the retirement plan.

Other Benefits

The Act requires employers to treat employees called to military service as on leave or furlough and, accordingly, must provide all other benefits that similarly situated employees on leave enjoy.

No Entitlement to Pay

Although some employers have generously offered differential pay, the Act does not require this.

Re-Employment

The Act envisions dialogue between the employer and service member employee. As such, the Act requires employees to inform their employer of their service. Service members participate in a variety of missions. Some reservists serve one weekend per month on a predictable schedule. Others may have sporadic training or deployments, contingent upon the needs of the military. Whenever possible, an employee called to military service must give advance notice of his mobilization.

Upon completing his or her service, the employee must “apply” for reinstatement by notifying the employer of his or her intention to return to work. The duration of the employee's service dictates when he or she must “apply” for return to work. If the employee service was less than 31 days, or if the employee was absent for any length of time for a “fitness for duty examination,” then he or she must notify the employer of his or her return on the first regularly scheduled work period on the first calendar day following the completion of the period of service. If the employee's service was between 31 to 181 days, the employee must submit an application for re-employment not later than 14 days after the period of service. If the employee's service was more than 181 days, the employee must submit an application for re-employment not later than 90 days after the period of service.

Remedies for a Violation of the USERRA

Administrative And Civil Actions

An employee can invoke the protections of the Act by filing a complaint with the Department of Labor Veterans Employment and Training Service (VETS) office. Similar to the Equal Employment Opportunity Commission, VETS may investigate charges of discrimination. If the charge has merit, the employee can request the Justice Department or a local United States Attorney's office to prosecute a civil action on his or her behalf — however, it is rare for a U.S. Attorney's office to prosecute such actions. Employees can file a civil action directly without first filing a charge with the government — unlike Title VII, an employee is not required to first exhaust his or her administrative remedies before filing suit. Compared with other employment statutes, the Act makes it easier in many procedural ways for an employee to sue an employer.

Legal Remedies

A prevailing employee is entitled to receive back pay, reinstatement, attorneys' fees, expert witness fees, and, generally, costs of litigation, in addition to double damages in the event of a “willful” violation. A court may use its full equity powers to assure compliance and vindicate the rights of a prevailing employee.

Shortcomings of the Legal Remedies

Compared with other federal employment law statutes, the USERRA is actually less generous in terms of recoverable damages. For example, unlike Title VII, a USERRA plaintiff may not recover compensatory or punitive damages. Given the importance and societal value we place on the citizen-soldier, it does seem unjust that recoverable damages are limited. Congress has recently considered equalizing the disparity between other employment statues and the Act; such modification to the Act may be forthcoming in the near future.

Administrative Enforcement

The administrative enforcement of USERRA is relatively weak, especially when compared with the EEOC's enforcement of Title VII. An employee who believes his or her employer was discriminatory because of the employee's military service can seek help from VETS. This agency is responsible for investigating and attempting to resolve all USERRA complaints. Oddly, however, it is VETS' policy to not represent an employee with a USERRA claim if the claimant is represented by an attorney. This policy is peculiar given that all other administrative agencies charged with enforcing an employment statute actively work with a claimant's counsel, and, indeed, keep a roster of attorneys to refer claimants. Although there is no statutory authority to support VETS' anti-lawyer policy, a claimant and his attorney must be aware VETS will shut the door to claimant if he or she is represented by an attorney. Finally, unlike the EEOC, VETS has no in-house trial attorneys to prosecute actions on behalf of service members who have USERRA claims.

Further hampering effective enforcement of USERRA is that a claimant must then convince yet another federal agency to pick up the case: the Department of Justice. The Justice Department has authority for prosecuting any action against an employer, but it rarely exercises that authority.

Finally, the Employer Support of the Guard and Reserve (ESGR), a Defense Department agency, provides ombudsmen services to employers and service members. But the support is limited to providing information and attempting to mediate disputes. The EGSR can be found at http://egsr.org and has links to ombudsmen throughout the country as well as additional information.

Conclusion

Our national defense structure will continue to heavily rely upon reservists. Coupled with the expectation that the United States will remain in Iraq and Afghanistan for the next several years, employers are well advised to examine their employment policies to ensure that they comply with the USERRA.