VOLUME I Chapter 16 Uniformed Servicemembers' Rights and Benefits

• Jurisdiction: South Carolina

Chapter 16 Uniformed Servicemembers' Rights and BenefitsMatthew K. JohnsonOgletree, Deakins, Nash, Smoak & Stewart, P.C.

I. Introduction

This chapter discusses the various protections and restrictions provided by federal and state statutes to uniformed servicemembers related to their civilian employers. Under each of the statutes discussed, employers are prohibited from discrimination on the basis of past, present, or future uniformed service. Employment laws related to uniformed servicemembers are designed to encourage non-career uniformed service, minimize disruption to individuals performing service and their employers, fellow employees and communities, ensure prompt reemployment of those who have served or serve in the uniformed services, and prohibit discrimination and retaliation based on an individual's service or affiliation with the uniformed services. Unlike other employment law schemes, however, the burden of proof regarding discrimination or other prohibited conduct is generally on the employer, not the employee.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333, expanded job protections for returning veterans and increased the role of the United States Department of Labor's Veterans' Employment and Training Service in dealing with allegations of unfair treatment of veterans by employers.¹The Department of Labor issued final rules implementing USERRA on December 19, 2005.² South Carolina also has several statutory provisions relating to leaves of absence and reinstatement rights of employees serving in the military.

II. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

A. Overview and Definitions

USERRA prohibits employers from discriminating against employees because of their service in the uniformed services.³ USERRA applies to voluntary as well as involuntary military service, in times of peace as well as war. It includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period of absence for the purpose of an examination to determine the fitness of the employee to perform such duty, and any period for which a person is absent from employment to perform funeral honors duty.⁴ USERRA does not apply to state call-ups of the National Guard for such service as disaster relief and riots. The laws of the state or territory concerned must provide for this type of protection.

Under USERRA, the term "employer" is broadly defined to include any entity, regardless of size, that pays a salary or wages or that has control over employment opportunities, including the federal government, a state, any entity to which the performance of employment-related responsibilities is delegated, or a successor-in-interest to an employer.⁵ "Employer" also includes an entity that denies initial employment in violation of 38 U.S.C. § 4311.⁶ "Employee" is broadly defined to include any person employed by an employer, public and private, including full-time and part-time employees, employees on a leave of absence, temporary, seasonal or probationary employees other than those who work for a brief, nonrecurrent period, employees on strike or laid off with recall rights, applicants; and former employees, including executive, managerial, and professional employees.⁷

USERRA applies to members of the Armed Forces; the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other category of persons designated by the President in time of war or emergency.⁸

B. Employment Rights and Prohibitions

1. Benefits Entitlement

An employee who is absent from work for military service (other than an employee who "knowingly provides written notice of intent not to return to a position of employment after" military service) is entitled to all employee benefits the employer generally provides for employees who are on furlough or leave of absence, subject to special rules for health plans and pension plans.⁹ Thus, if the employer's life insurance plan or its employee discount policy is available to employees of similar seniority, status, and pay who are on leave of absence, the employee in military service is entitled to the same benefits, on the same terms. Of course, the person on military leave may be required to pay the employee cost, if any, of any funded benefit continued to the extent other employees on furlough or leave of absence are required to do so.¹⁰

In addition, any person whose employment is interrupted by a period of service in the uniformed services shall be permitted, upon request of the person, to use during that period of service any vacation, annual leave, or similar leave with pay which accrued before the commencement of such service. But an employer is prohibited from requiring the use of vacation or leave during a period of service.¹¹ An employer is not required to allow an employee on military leave to use accrued sick leave unless it allows other employees on similar leave to do so.¹²

2. Prohibited Discrimination

Employers must not terminate or discriminate in any other way against an employee or a job applicant because of his or her membership, application for membership, performance of service, application for service or obligation for service in the uniformed services.¹³ These protections apply even for individuals who have not actually performed service in the uniformed services but may intend to serve in the future.¹⁴ The prohibition against unlawful discrimination, as opposed to reinstatement rights, applies to all employment positions, including those that are for a brief, nonrecurrent period, and for which there is no reasonable expectation that the position will continue indefinitely or for a significant period.¹⁵

To support a prima facie case of termination based on discrimination, an employee has the burden to show that his or her military service was a motivating factor in the termination.¹⁶ "The term 'motivating factor' means that if the employer was asked at the moment of the decision what its reasons were and if it gave a truthful response, one of those reasons would be the employee's military position or related obligations."¹⁷ Once a plaintiff has alleged facts that raise an inference that the termination was because of military obligations, the burden of production and persuasion shifts to the employer to present a valid reason that the employee would have been fired in the absence of military service.¹⁸

3. Hostile Work Environment Claims

Historically, courts failed to recognize hostile work environment claims under USERRA.¹⁹ But in 2011 the Veterans Opportunity to Work ("VOW") to Hire Heroes Act passed in 2011 was enacted with bipartisan support and recognized claims of hostile work environment related to uniformed service.²⁰ The VOW to Hire Heroes Act amended USERRA to prohibit discrimination with respect to the "terms, conditions, or privileges of employment," including freedom from a hostile work environment, and established the same standard for hostile environment claims on account of uniformed service as in Title VII and other employment discrimination laws.

C. Reemployment Rights and Prohibitions

Veterans' reemployment statutes are liberally construed in favor of the returning veteran.²¹ In order to be eligible for rights and benefits under USERRA, a person seeking reemployment and other benefits by reason of service in the uniformed services must comply with the following requirements:

1. Advance Notice to Employer

USERRA generally requires that employees give advance notice of the need for leave to perform uniformed services. Notice may be verbal or written and may be formal or informal.²² Notice can be provided by the employee or an appropriate officer of the branch of the military in which the employee will be serving.²³ No notice is required if precluded by military necessity or is otherwise impossible or unreasonable.²⁴The determination of what constitutes military necessity will be made by a "designated authority," not the employee or the employer.²⁵

Although USERRA does not specify how far in advance notice should be given, employees should provide notice as far in advance as is reasonable under the circumstances.²⁶The Department of Defense (DOD) "strongly recommends" that employees give at least 30 days' notice to their employers when feasible.²⁷ However, neither the statute nor the regulations address an employee's failure to provide advance notice when feasible, other than to state that an employee need not seek the employer's permission prior to leaving to perform uniformed service.²⁸

Employees are not required to decide before leaving for service whether they will seek reemployment after completing uniformed service. However, when employees complete uniformed service, they must notify their employer of their intent to return to work.²⁹

2. Maximum Permissible Leave Period

The cumulative length of a person's current and previous absences from a position of employment with his or her same employer due to service in the uniformed services must not exceed five years. However, this five-year period is subject to exceptions, including:

• Certain required National Guard and Reserve training (e.g., annual training sessions and monthly weekend drills mandated by statute);
• Periods of initial service required beyond the five years, if the servicemember cannot get timely discharged and/or is involuntarily retained on active duty;
• Active duty during a domestic emergency or national security situations;
• Active duty (other than for training) during a war or national emergency declared by the president or Congress — this includes service by those involuntarily ordered to active duty and volunteers who receive orders to active duty;
• Active duty in support of a "critical mission or

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