Thursday, March 14, 2013

EEO Laws - USERRA


As you may have read in one of my previous posts, the VEVRAA protects veterans at employers with Federal contracts.  However, shouldn’t veterans in all jobs have some level of protections afforded them?  They do.  Which will bring us to today’s topic.  As always, if you have an opinion or some experience that you would like to share, please feel free to leave a comment.

EEO Laws - USERRA

Signed into law by President Clinton in 1994, the Uniformed Service Employment and Reemployment Rights Act (USERRA) protects the reemployment of military members returning from service and also prohibits employer discrimination.  Previously, the Vietnam Era Veterans Readjustment Assistance Act protected veterans against discrimination with employers that were Federal contractors and subcontractors.  The USERRA expanded that to include all employers.  It states:

A person who is a member of, applies to be a member of, performs, has performed,
applies to perform, or has an obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of that membership, application
for membership, performance of service, application for service, or obligation.

Reemployment

The USERRA also means that you, the employer, must provide for the reemployment of the veteran, should they be called into service.  Your employee must give you notice of their absence, unless their military mission prevents them from doing so.  Notice can be verbal or written.  Upon the workers return from service, the employer is obligated to give them their job back with advancement.  What this means is that if a reasonable person could have expected to receive a promotion and been moved into a more senior position had they not left, the employer must give them that higher position.

The timeframe for reemployment is as follows:
  • Active duty 1-30 days - Employee must report back on next regularly scheduled work day after completion of service plus 8 hours
  • Active duty 31 to 180 days - Employee must apply for reemployment within 14 days after completion of service
  • Active duty 181 days or more - Employee must apply for reemployment within 90 days after completion of service
  • Injury/Ilness - Add 2 years to any of the above timeframes

 Should one of your employees return from military service, you will need to ensure that you give them their job, regardless of whether that job has been given to someone else in the meantime.  You may be able to create a duplicate position for the returning veteran, but you may not deny them simply because someone else was hired to do the work while they were away.  Additionally, once the veteran has been re-hired, you cannot terminate them without cause, even in employment “at-will” states.

There are a lot of specifics involved with the USERRA and you should review the law carefully with your own counsel.  The law is strictly enforced and any violation of any part of the USERRA can be grounds for a lawsuit. 

And remember all of you Human Resources professionals: Be Human... Be a Resource... Be a Resource for Humans.

  
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Disclaimer: The views expressed in this post are by the author Trevor Stasik, and do not necessarily reflect the views of any employer or any other organization. Please note, this information is based on my understanding and is only to be used for informational and educational purposes. Do not take what I am writing as advice. Seek your own legal counsel and/or see a tax accountant before making business or personal decisions. The author of this post makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The owner will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information.

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