SC Lawyer, May 2012, #2. When the Troops Come Marching Home to Work, Will You Be Ready?.

• Author: By Jennifer K. Dunlap and Kristen M. Baylis

South Carolina BAR Journal

2012.

SC Lawyer, May 2012, #2.

When the Troops Come Marching Home to Work, Will You Be Ready?

South Carolina LawyerMay 2012When the Troops Come Marching Home to Work, Will You Be Ready?The Top 10 Things Employers Need to Know About the Rights of Returning VeteransBy Jennifer K. Dunlap and Kristen M. BaylisOn December 20, 2011, President Obama formally marked the end of the Iraq War at Joint Base Andrews outside of Washington, D.C. As more than 40,000 troops return home and integrate back into the workforce, employers must understand their legal obligations to these returning veterans and their families under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Family and Medical Leave Act (FMLA).

USERRA is one of the farthest-reaching employment laws in terms of employer obligations and employee protections. Applicable to all employers, regardless of size, USERRA was amended in November 2011 to offer even broader protections for veterans. Similarly, recent amendments to the FMLA have created substantial obligations for employers (with 50 or more employees) with respect to service member employees and employees who are related to service members. Recent amendments to USERRA and the FMLA emphasize the need for employers to take proactive steps in order to understand their obligations to returning veterans and their employee family members, as well as the need to train supervisors regarding compliance.

Here are the top 10 things employers should know:

1. Who has rights under USERRA?

USERRA applies to all U.S. citizens, nationals or permanent resident aliens employed in the U.S. or in a foreign country by a U.S. employer. 38 U.S.C. 4303(3) (2011). It applies regardless of how long an employee has been working with an employer, and it covers all employees who perform duty in a uniformed service on a voluntary or involuntary basis, including active duty, active duty training, inactive duty training, full-time National Guard duty and absence from employment for an examination to determine fitness for duty. 38 U.S.C. 4303(13). The Act protects covered employees on leave in the "Uniformed Services," which includes the Army, Navy, Marine Corps, Air Force and Coast Guard and their reserve components, the Army and Air National Guards, and the commissioned corps of the Public Health Service. 38 U.S.C. 4303(16).

2. USERRA requires employers to promptly reinstate service member employees upon their return from leave in most cases.

USERRA requires employers to reinstate returning service members except under very limited circumstances. An employer must reemploy a service member returning from military duty if he or she meets the following five criteria:

1. The service member has been absent from a position of civilian employment by reason of service in the uniformed services; 2. The service member gave the employer proper notice of the impending military service, unless notice was unreasonable or impossible; 3. The cumulative period of service has not exceeded five years, unless it falls within an exception set forth in the Act; 4. The service member returned to work or applied for reemployment in a timely manner after conclusion of service; and 5. The service member was not separated from service with a disqualifying discharge or under other than honorable conditions.

If a returning service member applies either in writing or orally within set time frames under the regulation and has met the criteria entitling him or her to reemployment, USERRA requires "prompt" reinstatement. According to the Department of Labor (DOL), in most cases, that means reinstatement within two weeks after the service member notifies his/her employer of intent to return, "absent unusual circumstances." Employers have the burden of explaining any delay longer than two weeks. Although employers can request documentation from employees who are on military leave, they cannot delay reinstatement while waiting for documentation. Additionally, an employer does not have the right to delay or deny reinstatement because the employer filled the service member's pre-service position and no comparable position is vacant, or because a hiring freeze is in effect.

3. USERRA provides some exceptions to mandatory reemployment.

Despite the broad duty to reemploy returning service members, USERRA excuses employers from obligatory reemployment under some circumstances. USERRA provides the...