When Johnny Comes Marching Home Again…What are Employers to Do?

With many employees being called into active duty to fight what President Bush has referred to as the ?War on Terrorism?, what are an employer's obligations to these veterans when they return home and are ready to report back to work? The Uniformed Services Employment and Re-employment Rights Act of 1994 (?USERRA?) prohibits an employer from discriminating against an employee who is a member of (or otherwise performs service in) a "uniformed service" such as Army, Navy, Air Force, Marines, Coast Guard, reserves, commissioned corps of the Public Health Service, or any other category of persons designated by the President in time of war or emergency. The USERRA applies to all employers, regardless of the number of individuals they employ and employers cannot refuse to allow an employee to take a military service leave of absence. USERRA also prohibits retaliation or "adverse employment action" against any person who exercises or seeks to enforce rights under this Act or who testifies or otherwise participates in investigations or proceedings regarding alleged USERRA violations.

After protected military service, veterans are entitled to certain re-employment rights and benefits. In order to be eligible, the returning veteran must meet the following criteria: (1) the employee must have given advanced notice, written or verbal, of the military duty, unless notice is impossible or precluded by military necessity; (2) the employee's cumulative length of absences from employment must not exceed 5 years; (3) the employee must be released from military service under honorable conditions; and (4) the employee, after completing the military service, must promptly notify the employer of his or her intent to return to work. Furthermore, employers may request documentation from the returning veteran establishing that (1) the application for reemployment is timely; (2) the 5-year time-of-service limitation has not been exceeded; and (3) the veteran was honorably discharged from military service.

An employer, however, does not have to reemploy a returning veteran who left his or her employment for military leave if the employer can demonstrate either (1) that circumstances have so changed that reemployment is impossible, is unreasonable, or would cause an undue hardship; or (2) that the employment was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would have continued for a significant period of time.

Upon return, the veteran must generally be returned to a so-called "escalator principal" position – that is, the position in which he or she would have been employed if employment had not been interrupted by the military service. Returning veterans, therefore, are entitled to certain benefits as if their employment had continued during the time they were in the uniformed services. For example, a veteran continues to accrue seniority as if he or she had remained employed during military leave. In addition, a returning veteran is entitled to compensation at the rate of pay he or she would have received had he or she remained employed and not taken military leave. This means that if employee compensation is based on years of service, a returning veteran who seeks reemployment rights must be compensated at the rate he or she would have received had he or she not taken military leave. If the returning veteran cannot become qualified for the re-instated position after reasonable training to upgrade skills, he or she must be reinstated to his or her old position with like seniority, status and pay.

The most unique aspect of the USERRA is that it creates a ?for cause? termination protection for employees who return to employment after protected military service. In other words, returning veterans are temporarily no longer at-will employees! Specifically, (1) if the duration of an employee's military service was more than 30 days but less than 181 days, that employee cannot be terminated except for cause for 180 days after re-employment and (2) if the duration of the employee's military service was greater than 180 days, the employee cannot be terminated except for cause for 1 full year after re-employment. Since this is the first time that many employers will be faced with reinstating returning veterans, they should consult legal counsel before taking any adverse employment action.