Veterans: Many Laws Protect Your Work Rights

11/23/11

VETERANS: MANY LAWS PROTECT YOUR WORK RIGHTS

      Though returning service personnel should be welcomed home with open arms, warmth, and appreciation, a surprisingly high number are shunned by employers obligated by federal law to re-hire them. About 23% of reservists report being unable to return to their prior jobs because employers wouldn’t promptly re-hire them or their job situation changed during their military leave, according to the U.S. Department of Labor. Thirteen percent of those returning from military duty said although re-hired, they were provided with duties or pay-rates below those they were entitled to receive, but feared their employers would retaliate against them if they sought redress, DoL reports.

      Though DoL has the authority to take legal action against employers who fail to adhere to obligations mandated by the Uniformed Services Employment and Reemployment Rights Act, (USERRA), it acts infrequently. Sam Wright, an attorney who helped write this law while previously employed by the DoL, revealed in an interview with the news media that “most of the government investigators are too willing to accept the employer’s explanation for a worker’s dismissal.” He concludes, “as a result, reservists lose out.” An American Bar Association report released in 2004 concluded that the government was “not seen as an aggressive advocate for the returning veteran.”

      Retired Marine Lt. Col. Steve Duarte told U.S. Senate investigators that DoL and the Pentagon all but ignored his complaints that Agilent Technologies, Inc. refused to reinstate him to the position he held prior to his second mobilization. Although he received favorable job performance evaluations with the firm in the past, he began receiving negative performance evaluations when reassigned not to his regular position, but to a “special project” after returning from his last tour of duty. Just four months after being rehired, Agilent fired him. Duarte retained a private attorney who filed a lawsuit on his behalf, resulting in a court judgment exceeding $430,000.

      Duarte is not the only veteran who felt abandoned by the government when experiencing bias by employers who would rather not see them reenter the same workplaces they had built their careers at. Forty four percent of reservists are dissatisfied with how the DoL handled complaints of job discrimination arising out of military status, according to a 2005-2006 Pentagon survey. In 2004, 27% expressed such dissatisfaction. As even more troops return home when the war winds down, speculation is that both the actual numbers and the statistical rate of discrimination will hike even higher.
Here is a summary of key employment law rights which recent veterans are entitled to:

Uniformed Services Employment & Reemployment Rights Act:
USERRA provides service personnel with the right to continue health insurance coverage for themselves and their dependents for up to 24 months while in the military. Employers are permitted to charge up to 102% of the actual cost of the premium. For military service lasting less than 31 days, health care coverage is provided as if the service member never left the workplace.
 
Returning to Work:
If you left a job to perform duty in the uniformed service and wish to return to your prior workplace, the employer must place in the job you would have attained (or a comparable job), had you not been absent due to military service. Depending upon workplace circumstances, this may be a position above the level of the job held prior to your taking military leave, which is referred to as an “escalator clause.” To be eligible for this protection, you must meet one of these three criteria:

1. be a past or present member of the uniformed service; or,
2. have applied for membership in the uniformed service; or,
3. be obligated to fulfill service in the uniformed service;
Further, you must have met each of these conditions:
a. had no more than five years of cumulative military service during your tenure with your employer (however, there are certain exceptions extending the time past five years in certain circumstances);
b. applied for reemployment for your job in a timely manner, once your military service concluded.
c. have a service discharge under “honorable conditions;” and,
d. provided advanced written or verbal notice to your prior employer of your military service.
Once rehired, it is also illegal for an employer to retaliate against the reemployed service member for having taken time-off from work to perform military service. As exists with most laws, there are exceptions, and here are some of the reasons employers may lawfully deviate from USERRA’s staffing requirements:
1. the employer’s circumstances had so changed as to make reemployment impossible or unreasonable;
2. employment would cause an undue hardship on the employer; or,
3. the employment term was for such a brief, nonrecurrent period that the person leaving to serve in the uniformed services had no reasonable expectation that the employment would continue indefinitely or for a significant period.
The “bottom line” regarding the USERRA is that most governmental employers and mid-to-large-scale private employers, unless they have been engaged in lay-offs, will likely be obligated to retain or reemploy service members. Smaller businesses are more prone to experience economic situations exempting them from adhering to USERRA’s requirements.

If Injured While in Military Service:
If you were injured or became ill, or had a prior medical or emotional condition aggravated by a service-related injury or illness, USERRA provides additional protections. Employers must make reasonable efforts to accommodate the disability and assist the employee to become qualified to perform the duties held prior to reemployment. If the illness or injury leaves you unable to work at a position you would have attained had you not had time-off for military service, the employer must make reasonable efforts to accommodate you at duties of a position equivalent in seniority, status and pay to the “escalator” position; or, to a position nearest to the equivalent position. Only employees “qualified” to hold the reemployment position receive USERRA’s benefits.

Legal Recourse:
With so much dissatisfaction about the government failing to assist veterans who have experienced workplace bias, service personnel can take solace in knowing that they are permitted to file private lawsuits against employers violating the mandates of USERRA. For those prevailing in court, employers must provide reimbursement of the amount of lost wages and benefits. If the court rules that the employer willfully violated USERRA, the employee must be provided with double the amount of the lost wages and benefits.

      Although most veterans will have found new work after experiencing discrimination, the new jobs may pay less then the position which they were entitled to be rehired to. As a result, judges are empowered to award reimbursement for on-going reductions in wages and benefits which could last months or years past the conclusion of a trial. Further, courts may also require employers to pay the attorneys fees for the service members who prevail in their cases

Other Laws Benefitting Service Members:

Employees of the State of Florida: Entitlement to 30 days of pay upon deployment, receive
any pay difference between their military pay and higher state salary, and are provided with continued health insurance coverage during their active duty.

Spouses of Service Members: Florida provides unemployment compensation benefits for spouses who leave jobs to accompany service members who relocate.

Family & Medical Leave Act: If you require the assistance of an immediate family member to assist in your recuperation from a service-related injury or illness, immediate family members may qualify to take as long as 12 weeks leave from their jobs to assist you. Spouses, parents and working-age sons and daughters who have worked for their current employers for at least 12 months duration, have worked at least 1,250 hours for their employer in the prior year, and have at least 49 other co-workers within a 75 mile radius of their jobsite, can have their jobs held open while they provide assistance to injured or ill loved ones. The leave can be used in multi-day or multi-week stretches or on a sporadic or intermittent basis, such as for two or three hours when needed, though the U.S. Department of Labor is currently contemplating restricting sporadic or intermittent leave policies. Employers are currently lobbying the DoL that providing FMLA leave on an intermittent or sporadic basis, despite the leave being unpaid, is disruptive to their operations and too expensive to maintain bookkeeping on, though it does maintain such bookkeeping anyway to keep track of hourly pay obligations.

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LORING N. SPOLTER, an attorney in Fort Lauderdale, Florida, provides legal representation throughout the State of Florida in employment law matters. He represents employees and employers. Mr. Spolter, a native of South Florida, gained his courtroom experience in New York City in the Brooklyn, NY District Attorney’s Office. His law office phone number is (954) 728-3494.

Information contained in this article was accurate as of November 1, 2009. This article is for general information use only and does not substitute for specifically tailored legal advice. For purposes of objectivity, Mr. Spolter’s articles include information only on cases litigated by lawyers other than himself.