Home / Columns and Features / New re-employment measure
enhances veterans’ rights

New re-employment measure
enhances veterans’ rights

Operation Desert Storm, during the 1991 Persian Gulf War, gave many Americans a first-time view via television of the U.S. military’s advanced battlefield technology. It also brought to light what many in Congress considered to be a piece of archaic legislation: the 1940 Veterans’ Reemployment Rights Act. A large number of reservists were called to duty in the Gulf War and many legislators in Washington concluded the 1940 act was inadequate for reservists and National Guard members. As a result, both the House and the Senate drafted and passed bills in 1993 aimed at enhancing veterans’ rights. Last fall, President Bill Clinton signed the Uniformed Services Employment and Reemployment Rights Act, which became effective last December.
Overall, the USERRA strengthens veterans’ anti-discrimination protection, gives the U.S. Labor Department’s Veteran’s Employment and Training Service enforcement responsibilities, and provides for more explicit rights of re-employed service members related to pension plans. It specifically addresses reservists and National Guard members, and for the first time in American history, recognizes the Coast Guard like any other branch of the Armed Forces.
The anti-discrimination language is quite clear and should end any confusion regarding military service. Briefly, the USERRA says that employers may not discriminate against employees or prospective employees with regard to hiring, retention, promotion or any benefit of employment because of past, present or future application for, or membership in, the military.
Veterans’ complaints will be directly investigated by the Labor Department, which has been given subpoena authority. Any valid complaints that cannot be resolved by the Labor Department will be turned over to the Justice Department.
Another significant change in veterans’ rights between the 1940 act and today’s USERRA involves the time spent on active duty. The new law permits a period of military service absence of up to five years rather than four years, which may be further extended under certain conditions. Employers must re-employ veterans provided the reapplication process occurs within a specified time frame and manner which varies depending on the total time spent on active duty.
For example, employees have up to 90 days to gain re-employment for absences of more than 180 days, and up to 14 days following completion of active duty for absences of between 31 and 180 days. For absences less than 31 days, employees must reapply within the next scheduled workday. These time frames can be extended if an employee is recovering from active-duty injuries.
A returning employee who has been absent for less than 91 days may be rehired in a position that he or she is qualified for and would have attained if continuously employed. If the returnee is not qualified for that position, then re-employment must be in the job the individual left. For absences of more than 90 days, re-employment may alternatively be offered in a position of similar seniority, status and pay as the individual’s previous position. If individuals with service-related disabilities are not qualified for a position with reasonable accommodation, an employer must offer a job in the nearest approximation in terms of seniority, status and pay.
A key goal of the USERRA was to clarify employer and employee responsibilities in order to reduce the number of complaints and lawsuits filed by veterans against their employers. In handling previous complaints, the Labor Department has said that many employers were often confused about their responsibilities under the 1940 act. Approximately 1,500 complaints were examined by the Labor Department in 1993 (the 1994 figures are not yet available), and more than $1 million in wages were recovered.
While the majority of complaints are solved in negotiations, some 1,000 cases involving re-employment rights and benefits were tried in courts over the past 50 years. With each trial came an interpretation of the 1940 act. The U.S. Supreme Court issued rulings on 17 cases, further complicating employers’ confusion.
A number of those cases focused on pensions and benefits. The new law provides additional pension protection rights, including no break in service, no forfeiture of accrued benefits and no waiting period to participate upon return.
Employers must make pension contributions on behalf of returning service members that would have been made if they were not absent for military service. Upon their return, individuals also have up to three times the period of military service to make up missed individual contributions with the employer then matching contributions if applicable. Employers have until October 1996 to comply with the pension provisions of the law.
The new law enables returning employees to receive seniority and seniority-based benefits as if they were continuously employed, as well as non-seniority-based benefits as if the individual were on a leave of absence.
Employees returning from military service may be required to pay the same cost for benefits as would other employees on leave.
Furthermore, employers must offer to continue employees’ health plan coverage for up to 18 months and pay the employer share, provided military service is not more than 31 days. If their military service extends beyond 31 days, employees may be required to pay up to 102 percent of the full premium. This extended coverage provision is similar to the COBRA law, however USERRA has no lower limit on employer size as does COBRA.
As the world’s sole superpower, the United States has demonstrated its willingness in the Gulf War and Somalia that the military, including reserve units, may be called into action to prevent conflict and aggression. The USERRA, a veterans’ rights law that clarifies employer and employee responsibilities, is a corollary reality.
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle.)

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