Serving Our Veterans
Taking some time this week to acknowledge and thank those employees who are serving or have served in the armed forces is a great way to generate good will in the workplace. It may also be a good time to make sure that your company is complying with the law when it comes to its treatment of its reservists and veterans.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects many different servicemembers—ranging from active duty soldiers and inactive reservists to National Guard members and intermittent FEMA employees—and applies to all private and government employers regardless of size.
USERRA’s principal benefit to servicemembers is reinstatement after being on a military leave of absence. Under the statute’s “escalator principle,” employers are required to promptly restore qualified veterans to the job and benefits they would have attained had they not been absent for their service. This requirement can often result in real challenges for employers. If, for example, a small business’s accountant were to be absent for military leave for four years, the business would, as a necessity, likely hire a new accountant and reassign the former employee’s work; but if the business’s former accountant were to come back four years later, the business would need to promptly reinstate him and pay him as it did before. Similarly, if a company used seniority and discretion as the bases of its decision to promote employees to managerial roles, the employer may have difficulty determining whether a returning employee would have been promoted to manager if he had stayed at the company; still, the returning employee must receive the promotion promptly if there’s a reasonable certainty that he would have become a manager at some point during his absence.
The Family and Medical Leave Act (FMLA) also provides job-protected leave related to military service. First, an eligible employee may take leave to care for a servicemember injured in the line of duty if he or she is the spouse, child, parent, or next of kin to the servicemember. Second, an employee may take leave for any “qualifying exigency” arising from the fact that the spouse, child, or parent is on or is being called to active duty.
Don’t forget that about twenty-nine percent of recent veterans report having a service-connected disability (e.g., spinal cord injuries, PTSD, hearing loss). These employees are likely protected by the Americans with Disabilities Act, which prohibits discrimination on the basis of such disability and requires reasonable accommodation for these applicants and employees.
And, finally, while there is no affirmative duty for most private employers (except for those with federal contracts) to prefer veterans to other job applicants, employers may exceed their minimum obligations by bringing veterans into their workforces. The Department of Labor has developed a toolkit to help those employers hire, retain, and accommodate veteran employees: https://www.dol.gov/agencies/vets.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.