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USERRA compliance can be challenging for employers

Veterans' rights put compliance onus on former employers

USERRA compliance can be challenging for employers

As the United States accelerates the withdrawal of troops from Afghanistan, employers are obligated to accommodate military veterans who want to return to their previous jobs.

But complying with federal law, most notably the broadly worded Uniformed Services Employment and Reemployment Rights Act of 1994, is a challenge.

Furthermore, veterans who are injured or disabled during their military service also may fall under the Americans with Disabilities Act, requiring employers to comply with both laws, experts say.

Thousands of veterans could return to the workforce given President Barack Obama's commitment to withdraw 23,000 troops from Afghanistan by the end of the summer and his plan to turn security entirely over to the Afghan government by 2014.

USERRA forbids employers from taking any adverse action against employees because of their military service. It says returning veterans who otherwise meet the eligibility criteria must be promptly reinstated in the same positions in terms of status, seniority and pay rate that they would have attained had they remained employed continuously, which is commonly known as the “escalator principle” (see related story).


USERRA is a “broader, more encompassing law” than other federal laws, said William H. Floyd III, a member at Nexsen Pruet L.L.C. in Columbia, S.C.

Mike Fischer, a partner at Quarles & Brady L.L.P. in Milwaukee, said he has seen employers make mistakes in complying with USERRA, which he described as a “muscular, pro-employee” law, for the past decade. Employers often are not knowledgeable about it because they deal with it infrequently, he said.

David Ruiz, employee benefits and risk manager for the Martin County School District in Stuart, Fla., said the district's consulting firm keeps it apprised of anything in the law with which the district needs to comply, “and we govern ourselves accordingly. It's as simple as that.”

The two biggest issues employers encounter with respect to USERRA are “not fully understanding their general obligations in reinstating returning veterans” and “not properly reinstating them to the position and the wage rate that they would have been earning if they had been working and not in the service,” said Richard I. Greenberg, a partner at Jackson Lewis L.L.P. in New York. Employers “must be very wary” of telling a returning veteran they do not have a job without first seeking legal advice, he said.


“Employers have to pay close attention” to deadlines regarding how soon they have to bring the veterans back, which depends on factors including the length of time the service member was deployed and whether he or she was injured, said Shannon D. Farmer, a partner with law firm Ballard Spahr L.L.P. in Philadelphia.

“Typically, the employer must reinstate within two weeks of the application for re-employment,” Ms. Farmer said. “If there's been several years of active duty, the regulations recognize that it may take a little bit more time because you have to open up a position, which can mean laying off another employee or transferring someone else.”

There are exceptions to the rehiring deadlines, such as when the employee who replaced the veteran is finishing a long-term project, Mr. Fischer said.

“Otherwise, no matter how inconvenient it is for the employer, they've got to get the person back to work as soon as they're qualified,” he said.

USERRA requires employers to make sure the veteran “isn't disadvantaged and they don't fall behind as a result of being deployed,” Ms. Farmer said. “But it's a real struggle for the employer because, while being away in Afghanistan obviously has value to the country, it doesn't mean (veterans) have developed the same skills that a person who's been sitting here doing the job for that year has.”


Observers say the “escalator principal” applies to automatic salary hikes as well as any seniority-related benefits, such as vacation, that otherwise would have accrued. If needed, employers must provide training to help the worker fill a new post. During training, the employer must assume the worker will successfully complete training and pay the worker at the higher rate, Mr. Fischer said.

Setting expectations is important, said Martha J. Zackin, of counsel at law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston, citing cases she has seen where an employee believes he or she is entitled to something and sues if it does not materialize.

“It is important if (employers) are bending over backwards and giving more than they are required to, they should explain that and set expectations,” Ms. Zackin said

While veterans have the right to seek their former jobs, it is not known how many will actually seek to do so under USERRA.

“Not everyone's looking to return to the same position” they held before their military service and the employer may have gone out of business in the meantime, said Ms. Farmer.

In addition to long-term military service, USERRA bars employers from penalizing employees who leave their jobs for brief National Guard stints. For example, if a worker gets Tuesdays and Wednesdays off, the employer cannot schedule an employee to work those days to make up for the worker's National Guard duty, said Mr. Fischer.


Employers may “think they're being fair” when they require such schedule changes because they do the same when a nonmilitary employee needs personal time, but it is not permitted under USERRA, he said.

In addition, ADA requirements may apply if a veteran suffers an injury or disability during their military service. Aside from blindness, missing limbs and mobility impairments, veterans also could suffer from a post-traumatic stress disorder.

According to the Department of Labor's Morgantown, W.Va.-based Job Accommodation Network, about 30% of men and women who have spent time in war zones suffer from PTSD.

In guidance issued in February, the Equal Employment Opportunity Commission said it is illegal for a firm to refuse to hire a veteran because the veteran either has or is assumed to have PTSD, and that an employer must make “reasonable accommodations” for such a worker.

“I think employers will probably struggle how to accommodate” the PTSD sufferer without having undue hardships imposed upon the employer, said Daniel Klein, a partner with Seyfarth Shaw L.L.P. in Boston.