An employer has many legal obligations to employees who are members of the military, beginning when a job candidate submits an application and extending through the entire period of employment. These legal obligations affect hiring, retention, discipline, discharge, benefits and all other human resources functions.
These obligations stem from the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which applies to all public and private employers in the United States, regardless of size. In addition to USERRA, various federal and state laws may come into play when managing employees who are members of the military, depending on the circumstances. Below are steps to help employers satisfy their basic obligations under these laws.
Step 1: Be Aware That Applicants Have Rights Based On Their Military Status Or Activity
An employer’s obligations under USERRA begin once a prospective employee submits a job application. Employers are prohibited from discriminating against members of the military in denying employment due to their military status. This is because USERRA’s definition of employer includes a person or entity that has denied initial employment to an individual in violation of USERRA’s antidiscrimination provisions.
An employer may be liable under USERRA if initial employment is denied based on an applicant’s:
- Membership in the uniformed services;
- Application for membership;
- Performance of service;
- Application for service; or
- Obligation for service.
If an unsuccessful applicant brings a claim under USERRA believing he or she was denied employment based on military status, the applicant must show that the employer was motivated by a USERRA-protected status or activity in denying employment. If the applicant proves this, the employer must prove it would not have hired the applicant regardless of the applicant’s military status. If the employer cannot prove this, then the court may order the employer to:
- Hire the applicant;
- Compensate the applicant for lost wages and benefits;
- Pay damages equal to the value of lost wages and benefits;
- Pay the applicant’s reasonable attorney fees and court costs; or
- Require other forms of relief, such as ordering the employer to discontinue its discriminatory practices against military members.
Any questions concerning military status or activity included on job applications or asked during interviews should be job related and consistent with business necessity. Otherwise, it may appear that the employer is looking to weed out military applicants.
Employers should establish clear hiring criteria based on legitimate business needs for each position to be filled. This should help employers to successfully defend against USERRA claims brought by unsuccessful job applicants who disclosed their military status during the application process.
ADA Rights: Generally
Employers covered by the Americans with Disabilities Act (ADA) have additional obligations relative to job applicants who have disabilities stemming from their military service. While employers generally may not ask applicants questions about a disability, certain limited questions may be permissible.
Specifically, if the employer believes that the applicant will need reasonable accommodation to perform the job because of the following circumstances, then the employer may ask questions about the reasonable accommodation:
- A service-connected disability that is obvious;
- A hidden disability related to military service that the applicant has voluntarily disclosed; or
- The applicant’s voluntary disclosure that he or she needs reasonable accommodation.
However, the employer must not ask questions about the underlying physical condition.
ADA Rights: Self-Identification
The ADA permits employers to ask applicants to voluntarily self-identify as individuals with disabilities or disabled veterans, provided that certain safeguards are met. In particular, employers may make this request only when:
- They are required to comply with affirmative action under a federal, state or local law, including a veterans’ preference law; or
- Voluntarily using the information to benefit individuals with disabilities, including veterans with service-connected disabilities.
Employers that invite applicants to self-identify must state clearly and conspicuously on the written questionnaire used for this purpose that the information:
- Is intended for use solely in connection with the employer’s affirmative action obligations or voluntary affirmative action efforts;
- Is being requested on a voluntary basis;
- Will be kept confidential in accordance with the ADA; and
- Will be used only in accordance with the ADA.
Employers must also state that refusal to provide the information will not subject the applicant to any adverse treatment. Employers that collect this information from applicants must keep the information separate from the application to ensure confidentiality.
Step 2: Do Not Take Adverse Employment Actions Based On Military Status
Under USERRA, an employer may not discriminate against an employee in terms of maintaining employment, promoting the employee, or in any benefit of employment because of the employee’s service or potential service in the armed forces.
Additionally, an employer may not retaliate against anyone who helps someone else assert or enforce their USERRA rights, even if that person has no service connection. Examples include participating in a USERRA investigation and testifying in a USERRA proceeding.
If an adverse employment action, e.g., demotion or termination, is proposed to be taken against an employee who may be covered by USERRA’s antidiscrimination or antiretaliation provisions, the employer should review the matter carefully with counsel to ensure that the proposed action has a legitimate business justification. Absent this justification, in the case of a termination, the employer may be ordered to reinstate the employee, and pay lost wages, lost benefits, attorney fees and court costs.
Step 3: Just Say Go To Requests For Military Leave
Employers must allow their employees to take leave to perform military service. An employee is not required to request or obtain the employer’s permission to take military leave. Nor is the employee required to accommodate the employer’s needs as to the timing, duration or frequency of military leaves.
The employee’s sole obligation is to give the employer notice of pending service, unless giving such notice is either prevented by military necessity or impossible or unreasonable under the circumstances. This notice does not need to follow any particular format. It may be verbal, written, informal or even provided by an officer of the military rather than by the employee.
USERRA does not specify how far in advance this notice must be given. The Department of Defense strongly recommends providing at least 30 days’ advance notice to civilian employers when possible. However, this is not mandatory.
Given this legal framework, when an employee provides notice of pending military service, the employer should just say go.
Step 4: Fulfill Your Obligations To Employees On Military Leave
During the military leave, the employee is considered to be on furlough or leave of absence from the employer. In this status, the employee is entitled to the same nonseniority rights and benefits that the employer provides to other employees with similar seniority, status and pay who are on furlough or leave of absence.
Nonseniority rights and benefits are those that are not determined by seniority, such as holiday pay, and that are provided according to employment contracts, agreements, policies, practices or plans in effect at the employee’s workplace.
The employer may not require an employee on military leave to use accrued vacation or other accrued paid leave. However, the employer must allow the employee’s request to use such accrued paid leave in order to continue his or her civilian pay.
An exception to this rule is accrued paid sick leave, which may be used only if the employer:
- Allows accrued paid sick leave to be used for any reason; or
- Allows other similarly situated employees on comparable furloughs or leaves of absence to use accrued paid sick leave.
If the employee has coverage under a health plan in connection with his or her employment, then the plan must permit the employee to elect to continue the coverage for up to 24 months while on military leave. If the employee’s military leave is for fewer than 31 days, the employee may not be required to pay more than the regular employee share of the premium. Otherwise, the employee may be required to pay up to 102 percent of the full premium, which represents both the employer and employee shares, plus two percent for administrative costs. This structure is similar to that of the Consolidated Omnibus Budget Reconciliation Act (COBRA).
Employers should also ensure compliance with any leave obligations to family members of military personnel. The Family and Medical Leave Act (FMLA) provides expanded rights to military family members, and includes nondiscrimination protections.
Step 5: Prepare For Reemployment
An employee returning from military leave has certain reemployment rights, provided that the employee:
- Satisfied his or her notice obligation at the start of the leave;
- Was not released from military leave under dishonorable conditions;
- Reported back to work or reapplied for employment in a timely manner; and
- Accrued no more than five years of cumulative military service while employed by the employer.
Determining whether the five-year limit has been met can be tricky, as USERRA excludes various military activities from the calculation.
Eligible returning employees are entitled to reinstatement under what USERRA refers to as the escalator principle. The escalator principle requires reemployment in either:
- The escalator position, i.e., the position that best reflects with reasonable certainty the pay, benefits, seniority and other job perks the employee would have had if not for the military leave; or
- A position of like seniority, status and pay.
If the military leave was for fewer than 91 days, the employee must be reemployed in the escalator position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.
If the employee remains unqualified, the employer must reassign the employee to his or her pre-leave position. If further reassignments are necessary, the employer must reassign the employee to the “nearest approximations” of the escalator and pre-leave positions, in that order. If the military leave was for 91 days or longer, then the employer must follow the same sequence, except that “a position of like seniority, status, and pay” may be substituted at each step.
An employer that fails to reemploy the returning service member will not be liable if it can prove that:
- Circumstances have changed so as to make reemployment impossible or unreasonable;
- Assisting the employee in becoming qualified for reemployment would impose an undue hardship; or
- The position the employee left was for a brief, one-time period, and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
Just Cause Rights
After reemployment, the employee has heightened protections against discharge. If the duration of the military leave was between 31 and 180 days, the employee may not be discharged except for cause in the first 180 days of reemployment. However, if the military leave exceeded 180 days, then the protective “just cause” period extends to the entire first year of reemployment.
Health And Pension Rights
Upon reemployment, the employee has the right to be reinstated in the employer’s health plan, generally without any waiting periods or preexisting condition exclusions, except for service-connected illnesses or injuries. The employee can invoke this right even if he or she did not elect to continue coverage during the military leave.
As for pension rights, the employee must be treated as if he or she did not have a break in employment for purposes of participation, vesting and the accrual of benefits. If the employee is enrolled in a contributory plan, then he or she has up to three times the length of the military leave, capped at five years, to make up missed contributions or elective deferrals. Any required employer match applies only to actual make-up payments. The employer need not make any pension contributions during the military leave.
Step 6: Check State Law For Potential Additional Requirements
Employers must check for any state laws that may also apply when managing employees who are members of the military, as USERRA preempts only those state laws that are less protective of employees. State laws that are more protective of employees impose further risks and obligations on employers.
Step 7: Confer With Counsel To Ensure Compliance With All Laws
The laws concerning employees who are members of the military are dynamic, detailed and complex. Employers are therefore encouraged to confer with counsel whenever issues concerning this subject arise to ensure compliance with all legal requirements.
Please feel free to contact us if you have any questions regarding employees in the military, military leave, or reemployment, or if you need assistance with any related issues.
Note: Materials originally published on XpertHR’s website and reproduced with permission of Reed Business Information, Ltd., a member of the Reed Elsevier Group of companies. No part of this document may be copied, photocopied, reproduced, translated, or reduced to any electronic medium or machine readable form, in whole or in part, without prior written consent of Reed Business Information, Ltd.