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USERRA: Do the Right Thing for the Right Reasons for Employees in the Military

As we celebrate Veterans Days this week and honor the men and women who have served the United States in military service, it’s a good time for employers to recognize their employees who are citizen-soldiers and are beginning to come home — as well as other employees who continue to join reserve units or the National Guard. It’s also a good time to review a couple of hard lessons some employers have learned about the federal law regarding military service personnel and their employment rights, the Uniformed Services Employment and Reemployment Rights Act (USERRA). Many states also have laws regarding employment rights for members of the armed services.

State-by-state comparison of 50 employment laws in 50 states, including military leave

Illegal motive
USERRA is a statute full of technical language and legal terms of art. What is elementary, however — and not very technical — is the prohibition on treating an employee in a disparate fashion because of his military service. It’s no different from an employer’s obligation not to discriminate against employees because of their race, age, gender, or protected activity (e.g., filing a workers’ compensation claim). But who would do that? Who would intentionally discriminate against an employee because of his military service? After all, don’t many employers consider themselves patriots?

The problem isn’t with employers. Rather, employers are susceptible to being tagged with the sins of their frontline or midlevel managers. It can be difficult for managers to do their work and meet their goals when workers are absent. And even in peacetime, reservists and Guardmembers generally train one weekend a month and for two full weeks at some point during the year. They are allowed to take the time off work and cannot be penalized for doing their duty.

Watch a clip on FMLA rights for family of service members from the First Line of Defense supervisor training DVD

Loose lips sink ships!
Although managers may be disgruntled by employees’ short absences or long deployments, they cannot give voice to their displeasure. There’s no law against having a bad attitude about military service, but petty comments or mean-spirited retorts will be remembered (or, worse, documented). The problem occurs when employers make an employment decision that adversely affects a reservist or Guardmember.

Although a business’ employment decision may be well-grounded and legitimate, a USERRA-protected employee may claim that his military status was the employer’s actual motivating factor. He will repeat his supervisor’s comments that he should “stop playing soldier on the weekend” or questions about when he’s going to take his career seriously. Likewise, managers have been accused of reacting to news about a deployment by throwing military orders at employees, slamming doors, and refusing vacation requests — because, for instance, “you just took two weeks off!”

There are three ways to head off managers’ insensitive remarks: train, train, train. Managers must not only know in their hearts that military service is protected but also make certain their mouths are in sync. Remind your managers that words matter.

Basic Training for Supervisors: easy-to-read guides to avoid legal hazards, including military service and USERRA

Beyond that, foster a work environment that celebrates employees’ military service. There’s nothing wrong an employers with doing itself some good while doing good. Don’t limit yourself to a cold letter of required postings that explains your USERRA legal obligations. Recognize employees in company newsletters, and post their achievements on bulletin boards. Organize care package deliveries. Do it because you mean it, but also recognize that an employer’s goodness keeps badness out of the picture.

‘Escalator principle’
The what? What does a people-moving device have to do with military service members’ rights? It might help to picture your service member-employee on, say, a department store escalator. USERRA provides that someone who served for more than 90 days in the uniformed services must be returned to active employment “in the position of employment in which [he] would have been employed if [his] continuous employment . . . with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which [he] is qualified to perform.”

The U.S. Supreme Court long ago referred to that right as the “escalator principle.” With regard to the benefits of employment, the returning service member doesn’t step back on the escalator at the point where he stepped off; rather, he returns at the point he would have occupied had he kept his position continuously.

When dealing with any employment law, employers should always keep in mind the central remedial purpose of the law. With some acts of Congress, that might be difficult to discern. Not so with this one. The mental image of the escalator captures it perfectly. The key is not to penalize the employee for stepping away from his career to serve his country. If he would have made $2 more per hour had he stayed, then that should be his new wage upon his return. If he had 10 years of seniority, then after a two-year deployment, he has 12.

Obviously, the issues can become a lot more nuanced. If the employee worked from home when he left for military service, an employer will have a heavy burden to prove that arrangement isn’t workable when he returns from service. If the deployed employee worked part-time, he might be entitled to a full-time job upon returning if he can show there was a “reasonable certainty” that he would have attained the full-time position had he stayed.

Returning again to the department store escalator image, notice that it runs both ways. It goes up, but it also goes down. Being on military leave doesn’t protect an employee from pay cuts, loss of benefits, office closures, or layoffs. Again, the focus is on where the employee would have been but for his military service. Unfortunately, in these tough times, the answer may be “out on the street.”

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA and discrimination

Bottom line
As we mentioned, USERRA is a technical statute, and it can lead to employer liability when there’s no ill motive involved. Employers must know the broad parameters of the law and seek expert advice on the details. If you can keep in mind the two broad points discussed in this article, you’ll be well served, even as your employees serve our country well.

Mastering HR: FMLA