When Johnny and Janie Come Marching Home Again:
Re-employment Rights of Military Veterans 08-12-2009
- By Ann F. Kiernan, Esq.

The U.S. Justice Department's Civil Rights Division has given a high priority to enforcing the re-employment rights of service members under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Since the beginning of 2009, The Department Of Justice has been filing suits against employers almost every week on behalf of veterans who have been denied prompt re-employment, been demoted, or terminated from their civilian jobs.

USERRA, which applies to almost every employer in the country, regardless of size, requires employers to allow workers to take leave for military service, without any discrimination, harassment, retaliation, or any other negative job action. Time spent in uniform must be given full years-of-service credit in the employer's pension plan, and the employee retains the same seniority and seniority-based rights and benefits that would have been attained if employment had not been interrupted by military service.

With very few exceptions, all employees taking a military leave are entitled to be reinstated, either to their old job or to an equivalent position. Using a concept known as the "escalator" principle, USERRA requires that the returning veteran be put in the job the veteran would have if he or she had remained on the job. In addition, USERRA requires employers to go beyond their Americans with Disabilities Act obligation to accommodate disabilities. As explained in a 2008 EEOC employer guide on the ADA and service-related disabilities, employers must help disabled veterans who can no longer perform their old jobs become qualified for new jobs by providing training or retraining.

And, military service fundamentally changes the at-will employment relationship. Under USERRA, a worker who has been on military leave for more than 30 days can't be fired without cause. If the leave was between 30 and 180 days, this protection lasts for six months; if the worker was on active duty for more than 180 days, you can't fire without cause for one year. "Cause" is not defined in the statute, but case law and Department of Labor regulations have made it clear that employers can lawfully dismiss a returned veteran for fraud, misrepresentation, job misconduct, or lack of qualifications, but it is the employer's responsibility to prove sufficient "cause". In July, 2009, a federal appeals court ordered immediate reinstatement of a Tennessee National Guard member who was fired for alleged insubordination after his supervisor said he was taking "too much time off for the military". Not only did the court award more than $350,000 in back pay and benefits, it found that the employer had failed to prove that it had a valid, non-discriminatory reason for the firing.

By contrast, in a 2006 federal appeals case, the court upheld an employer's right to fire a returning veteran who arrived late for work and left early without permission, missed scheduled conference calls, and acted inappropriately to customers and co-workers, engendering complaints about her behavior and professional attitude. The court noted that the employer met its burden of proving sufficient cause, since there was extensive pattern of unprofessional misconduct, well documented by the employer.

As of August, 2009 there have been no appellate decisions about whether a company's financial difficulties constitute sufficient "cause" for termination under USERRA, and the lower courts are in conflict on the issue. While several trial judges around the country have ruled in favor of employers, in a 2005 USERRA case a reservist was awarded $400,000 in back pay and front pay when he was fired as part of a cost-cutting general reduction in force done after the employer had lost money for seven consecutive quarters.

What this means to you: Congress amended the law in October, 2008 to eliminate a statute of limitations defense to USERRA claims, no matter how long ago the events occurred. So take the time NOW-before you get a USERRA complaint-to review any situations in your workplace involving military leave, veteran reinstatement, accommodating service-related disabilities, or discipline/discharge decisions against returned veterans. If you do not have solid documentation supporting your legitimate, non-discriminatory reasons for all such management actions, make sure you consult with your manager, Human Resources and legal advisors about the best way to proceed.

How to prevent claims for discrimination under USERRA and other employment laws is covered in our Managing Within the Law I workshop!

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.