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Welcoming soldiers back home — and back to work

July 6, 2011

In the coming months, regular and reserve troops will be returning from abroad in significant numbers.  Many of them will be returning to, or for the first time entering, the civilian workforce.  We owe them all a debt of gratitude for their service.  Employers also owe them a fair number of legal obligations, summarized below.

1.  Restoration/reemployment.  The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to give returning service members their original jobs back, at the salary and benefit level they would have earned had they not been called to service.

2.  Restoration to comparable position in case of service-related disability.  For a veteran injured during service, USERRA requires the employer to make available a comparable job that the employee can perform, at the same status, pay and seniority level as his or her former job.

3.  Reemployment required unless “impossible or unreasonable”.  In most circumstances, an employer objecting to reemployment of a veteran must show that changed circumstances render the restoration “impossible or unreasonable.”  There is no case law interpreting those terms, but they are distinct from, and most likely harder to establish, than the more familiar “undue hardship.”

4.  Restoration of health benefits.  Service members returning to work are entitled to be reinstated to the employer health plan without any waiting periods or exclusions (including preexisting condition exclusions), except for service-connected illnesses or injuries.

5.  Temporary limitation on at will status.  Returning service members whose military services exceeded six months can only be discharged for cause during for a year following reemployment.  For those whose military service was one month to six months, the cause-only discharge period last six months after reemployment.

6.  Veteran status is a protected class under Title VII and most state laws.  So employers may not discriminate against veterans or returning service members in hiring, discipline, promotion, or discharge.

7.  Federal contractors must grant veterans a preference in hiring.  Pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRA), all federal contractors who do more than $25,000 in business with the government must take affirmative action to employ and advance veterans.  VEVRA protections extend to all who served active duty in Vietnam and later campaigns.

8.  Disability discrimination/accommodation issues.  Sadly, many returning service members may come home with disabilities as that term defined in laws of more general applicability.  Employers may not discriminate against disabled individuals, veterans or no.  In addition, employers need to be cognizant of their obligations under the ADA and similar laws to discuss reasonable accommodations with disabled veterans and to provide them when feasible.

9.  Employers may be sued for damages.  Employers can be sued for damages (including attorneys’ fees) for violation of USERRA, Title VII, the ADA, and most analogous state laws.  Willful violations may carry additional penalties or liquidated damages.

Employers, take note of these issues and be ready when Johnny and Jane come marching home.  They deserve no less, and neither does your business.

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