Servicemembers protected by USERRA in hiring and reinstatement

by William Dabney

The Uniformed Services Employment and Reemployment Rights Act (USERRA) and its state-law analogues present challenges for employers. Not only do those laws require you to reinstate returning military personnel to their former jobs with no loss of pay, privileges, or opportunities, but they also require special consideration and accommodation to military applicants at the time of hiring and interviewing. In some cases, the requirements can be both surprising and onerous.

USERRA applies to initial hiring
As the war in Iraq wound down in late 2011, the last 40,000 U.S. service- members left that country to begin returning home. In addition, soldiers, reservists, and members of the National Guard will be coming off active duty because of projected withdrawals from Afghanistan, other reductions in troop levels, and normal turnover as the economy improves. According to information from the U.S. Department of Defense (DOD), almost one million individuals will have left military service by 2016.

Most employers know that USERRA requires job protection for workers who left their employment for service in the military for up to five years. USERRA also protects workers who leave their jobs temporarily to fulfill periodic service and training obligations in the reserves or National Guard. In most instances, employers must reinstate all returning veterans and part-time servicemembers to the same job they held before leaving for service with the same pay and benefits. Further, the so-called “escalator principle” requires that any advances in pay, increases in benefits, or promotions that would have occurred but for an employee’s time in service must be instituted upon his return so that no advantages or privileges are lost because of his service obligation.

What may not be as familiar to employers are USERRA’s broad protections during all of the initial hiring procedures for servicemembers who apply for jobs. The law prohibits discrimination by any employer based on an applicant’s past, present, or future participation in the military. It applies when you are considering, interviewing, or hiring applicants for all vacant or soon-to-be vacant positions. This part of the law means, for example, that you cannot decline to hire someone because of misgivings that he will miss too much work to serve periodically in the armed forces. In one reported case from 2009, an employer was forced to explain to a jury that its reasons for retracting an offer of hire weren’t related to its having learned the employee had two more years to serve in the National Guard.

Most challenging are the implications of USERRA’s hiring protections for an employer’s otherwise established processes for considering, interviewing, hiring, and training applicants. Those opportunities must be afforded to applicants who are servicemembers in the same manner as all other applicants. Therefore, if a service obligation interferes with the applicant’s ability to sit for an interview at the time you are holding interviews or to start work at the time you require or specify, you must make accommodations for her service obligation. In practice, USERRA’s hiring protections can lead to some potentially onerous obligations, especially if you’re among those employers that often hire individuals with military experience, such as airlines, security companies, police forces, and defense contractors.

Mastering HR Report: USERRA

Courts have upheld USERRA’s provisions
In one 2010 case in Colorado federal court, an airline’s employment needs and hiring practices for pilots required that they be available to begin training within six months of the time they submitted applications. No interview process would begin until that six-month threshold was met. The employer set aside applications that indicated the candidate was unable to begin training within six months. The employee who filed suit wasn’t granted an interview until almost a year after he applied because of the employer’s six-month policy. He argued that the practice delayed his eventual hiring, costing him valuable seniority.

The facts of the case did potentially run afoul of USERRA’s hiring protections. The applicant’s unavailability for training for more than six months into the future was caused by his obligation to complete active military duty. Arguably, the law would have required the airline to make an exception and interview him despite his ongoing military obligation. Further, if he was hired, the airline would then have to hold a position open until he was discharged from service or otherwise available to start work. Finally, the law might have required the airline to do away with the six-month policy entirely because USERRA also prohibits any policy, plan, or practice that tends to deny servicemembers any employment opportunities generally available to others, regardless of whether they’re intended to do so.

It’s certainly understandable how an airline would need six months of lead time to provide some predictability in filling its pilot positions. If many of its applicants are serving in the military and have availability dates well into the future or agreed-on start dates are subject to sudden changes, it certainly makes it more difficult to plan and conduct an orderly hiring process and ensure a supply of qualified candidates to start work when needed. Yet USERRA’s requirements may well place this type of burden on all employers.

The reemployment provisions of USERRA do allow employers the defense of an “undue hardship” involving significant difficulty or expense to reinstate employees. However, the provisions outlawing discrimination in initial hiring and prohibiting policies that adversely affect the hiring opportunities for military applicants contain no such defense or exception. The airline’s only defense under USERRA was to prove it would have made the same interview and hiring decisions about the pilot anyway for other legitimate reasons, regardless of his military obligations or its (arguably discriminatory) six-month availability policy.

In another reported case from 1996, a municipal police force offered a position to a servicemember scheduled to be discharged from the military within a few months, which would have been in time for the start date at the police academy. When the employee’s military discharge date was suddenly delayed, the employer retracted the offer and gave the position to another person. The employer reasoned that the servicemember’s inability to attend police academy training, which was offered only at specified times, meant he was disqualified for employment as a police officer. The employer argued, among other things, that public safety imperatives meant it couldn’t be required to go without a trained officer until the applicant was able to leave military service.

The court was not impressed. It held that USERRA doesn’t provide any defense when an employer admittedly fails to hire a servicemember because of issues related to his service obligation.

Basic Training for Supervisors: Military Leave

Lessons to apply
Those cases demonstrate that you need to be careful when you receive applications from members of the military reserves or National Guard and especially from servicemembers still on active duty. As many thousands of servicemembers are expected to be discharged in the near future, you should be aware that you cannot rely on their availability to start work, begin training, or myriad other service-connected issues in deciding whether to consider, interview, or hire such applicants.

William Dabney is an attorney with Holland & Hart in the firm’s Denver, Colorado, office. He may be contacted at 303-295-8366 or wr_dabney@hollandhart.com.