The increasing level of military operations in Iraq, Afghanistan and other places in the world has resulted in the ongoing activation of thousands of National Guard and Reservists. As the rotation and deployment cycles continue, many Guard and Reserve members are now returning to resume their civilian jobs. Problems between these returning service members and their former employers are occurring in increasingly frequent numbers.
The returning service members, as former employees, have legal reemployment rights. Employers have a legal obligation to reinstate these individuals in their previous positions. The returning service members have recourse under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
The Employer Support of the Guard and Reserve (ESGR) is a Department of Defense-funded program that works to resolve employment or reemployment issues between service members and employers. The USERRA guidelines outline the fine points of the act and clearly define service members’ obligation to notify their employers, whenever possible, of an upcoming activation or deployment. Additionally, it provides timelines for them to return to work upon deactivation from active service.
On the employer side, the act outlines the requirement for prompt reemployment, “which will depend on the circumstances of each individual case.” It also defines an escalator position, which “requires that each returning service member actually step back onto the same seniority escalator at the point the person would have occupied if the person had remained continuously employed.”
The act further describes the service member’s rights and the employer’s obligations regarding pension and retirement programs. The act states the following: “A reemployed person must not be treated as not having incurred a break in service with the employer maintaining a pension plan;” and: “Military service must be considered service with an employer for vesting and benefit accrual purposes.”
The act also provides protection from discharge and discrimination. “A reemployed employee may not be discharged without cause, for one year after the date of reemployment if the person’s period of military service was for more than six months, or six months if the person’s period of military service was 31 to 180 days. Employment discrimination because of past, current or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including hiring, promotion, reemployment, termination and benefits.”
The act allows liability for violation of the law to be established if service connection is just one of the employer’s reasons for any adverse action against the service member. Violations of the act can result in action by the Department of Justice and civil action with the support of the U.S. Attorney General.
The ESGR, as part of its duties, attempts to work with employers to make sure that they understand the law and their obligations to returning service members. Employers need to understand their obligations under USERRA and make sure that their supervisors and managers know the appropriate actions to take in dealing with returning service members.
All quotes are from the USERRA guidelines, which can be accessed at: https://www.esgr.org/employers2/thelaw.asp?c=userra.html.