Rights Of Military Personnel In The Workplace

As soldiers return to civilian life from war in Afghanistan and Iraq, employers have obligations under federal law to accommodate these service men and women. The Uniformed Services Employment and Reemployment Rights Act (USERRA) affects all businesses with one or more employees. In general, an employee may perform military service for up to five years and keep reemployment rights with the employer under USERRA. This law requires employers to meet three obligations:

Reemployment of all employees who left their jobs in order to perform military service
Protection of employee benefits
Prohibition of discrimination and retaliation against employees and applicants because of their military service

An employer may not refuse to hire, reemploy, promote, or deny any benefits to an individual because of military service.

In addition to applying to all employers with one or more employees, USERRA also pertains to managers and supervisors. Not only can a company be held responsible for discrimination, managers and supervisors who have employment-related responsibilities to servicemen and servicewomen can be held personally liable for any discrimination or retaliation.

USERRA covers employees in all positions. There are no exclusions for executive, management, or professional employees. USERRA also applies to employees who have been laid off with recall rights, who are on strike, or who have taken a leave of absence. Additionally, USERRA applies to employees who hold temporary, part-time, probationary, or seasonal positions as long as there is an indication these positions will continue in the future.

USERRA requires employers to rehire employees who return from military services within two weeks of the employee's application for reemployment. Reemployment, however, may depend on the particular circumstances and type of military service. For example, if an employee has been away for several years on active duty, the employer may have to reassign other employees or terminate employees to create an opening for the returning military personnel.

Moreover, USERRA mandates employers to place returning military personnel into positions of comparable pay, benefits and seniority that they would have held had they remained continuously employed. The employer is also obligated to provide adequate training to the employee to be successful in the position he or she assumes.

If a returning employee has become disabled while on active duty, the employer must make reasonable efforts to accommodate the disability. In this regard, accommodating a disabled employee might be no different than complying with the Americans with Disabilities Act.

Lastly, USERRA entitles employees who leave for military service with certain rights for continuation of benefits they would have earned had they been on a leave of absence from employment. Depending on the particular employer's benefit package, these benefits may include vacation time, health plan coverage, and pension benefits, among others.

Disclaimer: This article is published by the Law Office of Kevin Keaney for those working or interested in employment and labor law. The articles are intended to supply general legal information and are not intended to be a substitute for legal representation or advice.

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