The Complexity of USERRA Harms National Guard Members

by Michael Haberman on February 20, 2012 · 0 comments

SHRM attorney Allen Smith published an article on the SHRM website entitled, Unemployment and USERRA Claims Rise Among National Guard Members, in which he detailed testimony delivered to Congress by Vetjobs.com president Ted Daywalt. Ted is an acquaintance of mine and he runs a fine organization to assist veterans in getting employment after leaving military service. He testified to on Feb. 2, 2012, before the House of Representatives’ Committee on Veterans’ Affairs. What he told them was “The message is they want to hire veterans, but they cannot go broke supporting their National Guard employees with constant call-ups and all the financial and legal obligations fostered onto the employers by USERRA.”  His testimony pointed out the difficulty caused by the complexity of the USERRA and the effect it has on veterans and service members, particularly National Guard members. In addition to the complexity of the law changes in military policy at the height of the wars in the Middle East ended up potentially requiring some National Guard members to serve 48 months over a 60 month time frame. This stressed the service members, their families and their employers.

On an individual basis most of us support the men and women who serve in the armed forces (though not all do, read this blog post how one Guard member was treated. Ultimately his case ended up in front of the U.S. Supreme Court. Companies Get the Liability for Supervisors Decisions.) However, today many companies are avoiding hiring National Guard members, despite the fact that it is a violation of USERRA, in order to avoid the difficulty of dealing with the complexities of the law. In his testimony Daywalt related that “One senior HR executive at a major company told [him] that the company will continue to support current employees serving in the National Guard or Reserve but no longer will hire employees who are in the National Guard or Reserve.” Additionally he said “I have heard this same sentiment from many HR managers. Many employers were upset they were not consulted. They no longer support the system.” Daywalt points out that many Guard members work for small companies and small companies bear a very big burden complying with USERRA.

The law applies to all employers of ALL sizes, including:

  • All private employers, including foreign employers doing business in the United States;
  • American businesses that operate either directly or through an entity under their control in a foreign country (unless doing so violates the laws of that country0;
  • Hiring halls operated by a union or an employer association, if they perform hiring for the employer;
  • The Federal government and ALL state and local governments;
  • Successor employers who have taken over companies that had employees serving military duty.

USERRA requires of these employers the following:

  • They may not discriminate against members of the uniformed services in any aspect of employment.
  • They must reinstate employees upon their return from up to five years (or more) of leave to serve in the uniformed services.
  • They must restore all benefits to returning service members if that benefit would normally have accrued during the period of time of their absence. That absence is counted as work time.
  • They may not fire any service member, except for cause, within one year of their return for military service. (And this must be a genuine for cause case.)

What makes this law so complex is that the timing associated with returning depends upon the period of time the employee was in service. Most reports of USERRA violations involve discrimination based on employee’s obligation for service, followed by failure to reinstate and then retaliation. Daywalt offered a number of suggestions to the House of Representatives’ Committee on Veterans’ Affairs on how things might be altered to help make USERRA and hiring veterans more palatable and workable for employers. If you wish to read his suggestions click here.

If you have, or are likely to have, employees who are serving in the uniformed services it is imperative that you are educated on the intricacies of this law. You can do this by reviewing the USDOL website on USERRA.

Having grown up in a military family I think all of us should take seriously the sacrifices that the men and women who volunteer must make and we must try insure as smooth a transition back to civilian life as possible. Otherwise we may find ourselves in a position of having no volunteers and suddenly being faced with crisis. Having grown up in an era of a necessary draft I can assure you we do not want to go through that experience again.

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