Monday, November 12

Veteran's Reemployment Rights - USERRA

[ed. note: While our goal at Current Employment is always to present this information in as lighthearted a way as possible, sometimes the situation is too important to run the risk of watering it down in humor, such is the case today.]

Since yesterday was Veteran's Day, we're devoting the day to veterans employment issues. Like always, we're not taking sides here, but this is one of the most delicate, complicated issues in modern employment law, so we felt the need to discuss it. This post is a general overview of the Uniformed Services Employees Reemployment Rights Act, or USERRA.

USERRA is meant to protect an honorably discharged serviceman's ability to return to his or her previous job after being deployed or on active duty. There are requirements for both the employer and the employee, and complaints are handled through an administrative agency.

Even with the law in place, the state of veterans returning from wars, both present and past, is not nearly where it needs to be. We'll address some of those issues in subsequent posts today.

Details on USERRA, and a place to go for help, after the jump.

Among USERRA's safeguards:

- Protection from discrimination on Title VII grounds.
- Reinstatement to the position the servicemember would have been in had they not been called to duty. That means if the soldier would have been promoted in the regular course of his employment, he must be reinstated at the higher position (called the escalator principle). If the employee must take a test to be promoted, the test can be administered by proctors stationed where the employee is on active duty, or reasonable accommodations must be made upon return to work, either to train the employee or provide alternative employment opportunities.
- Reasonable accommodation for employees returning with injuries or disabilities. If an employee is convalescing from war injuries, they have up to two years to request reinstatement to their position at work.

USERRA requires the employee to notify the employer of his or her active duty requirement when reasonable, and to give as much time as possible to the employer to prepare. Upon return, the employee must apply for reemployment based on the following schedule:

- If the active service was less than 31 days, the employee must apply on the next working day, excluding time travelling home and an eight hour rest period.
- If the active service is under 181 days, the employee has 14 days from the date they are released from service to apply for reemployment.
- If over 181 days, the servicemember has 90 days from release from service.

With regard to benefits, active servicemembers are eligible for all health and welfare benefits at their jobs back home for 2 years, though they may be required to pay up to 102% of the premiums. Pension benefits are always protected.

If a servicemember has a claim or complaint against their employer, they can take it to the Veterans' Employment and Training Service (VETS). From the Department of Labor USERRA site:
If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant... If violations under USERRA are shown to be willful, the court may award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.

It seems like a pretty comprehensive statute, but, as with many helpful pieces of legislation, reality is standing in the way. The claims that are filed don't seem to be getting resolved effectively, and the result is an terrible amount of veterans unemployed, untrained and homeless.

If you or someone you know is struggling through the maze of benefits or reemployment laws for vets, the John Marshall Law School has established a new clinic that may be able to help. Here's the website. If you need more information, feel free to contact us and we can put you in touch with someone who can help.