|
William W. Bowser, Editor; Scott A. Holt and Adria B. Martinelli, Associate Editor
Young, Conaway, Stargatt & Taylor
Vol. 13, No. 5
May 2008
MILITARY SERVICE
Reservist sues Delaware State Police for military service discrimination
Scott A. Holt
The latest headlines from the News Journal underscore what is becoming the latest trend in employment lawsuits: military service discrimination. On March 26, an Army lieutenant colonel serving in Baghdad filed a federal lawsuit alleging he was fired
from the Delaware State Police in violation of state and federal laws protecting military reservists from discrimination and retaliation because of their military service.
Keith W. Janowski, age 45, claims that he suffered harassment, discrimination, and retaliation because of his duties and obligations "as a citizen-soldier in the U.S. Army Reserve[s]" during his 16 years on the state police force. He also alleges
that after his return from active duty in 2003, he asked for retraining in civilian searches but was denied. He was fired in 2005 for conducting an improper search and for exercising poor judgment.
Janowski's lawsuit supports national statistics that more and more military personnel are exercising their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As employees return from active duty, employers face
extensive and often confusing obligations imposed under the Act. The law was enacted in 1994 to encourage civilian military service by attempting to eliminate the disadvantages employees face when called into service. The Act governs employers'
responsibilities to employees during periods of military leave as well as when they return to employment.
Unlike many employment laws, USERRA applies to all employers ― public and private ― regardless of size, and requires you to grant unpaid leaves of absence to employees called into military service. Employees may elect to use accrued
vacation pay, annual leave, or other accrued paid leave during military leave, but you cannot require them to use it during that time.
Eligibility for reemployment
Upon returning from military service, USERRA grants eligible employees the right to reemployment. To be eligible, employees must first meet certain criteria, including giving advance notice of their military service obligation. The advance notice
requirement is waived if military necessity makes such notice impossible or unreasonable.
Reemployment rights are available for absences of up to five years of cumulative military service. Many of the most common categories of military service don't count toward that five-year limitation period. For example, service during a time of war
or national emergency is exempt from the five-year period. You should also be familiar with the annual and weekend training required for National Guard members and reservists. That time, too, is exempt.
Reemployment rights don't extend to an individual with a disqualifying discharge from military service. A disqualifying service discharge includes the following:
- separation from service with a dishonorable or bad-conduct discharge;
- separation from service under "other than honorable" conditions;
- dismissal of a commissioned officer by court martial or presidential order; and
- "dropped
from the rolls" separation caused by an absence without authority or civil imprisonment.
USERRA extends those time limits for up to two years if an employee is unable to return to work because of a service-related illness or injury. Any
employee who fails to report to work or reapply for employment within the appropriate time frame is subject to the employer's policies regarding any unexcused absence from work.
Employer duties to reemploy
At the conclusion of military service, an employee is generally entitled to reemployment to the position he would have held or attained but for the period of military service. In that respect, USERRA is contrary to the concept of employment at will
and affects your personnel decisions during the period of active military service. Not surprisingly, failure to reinstate a former employee following a period of military service is one of the most common complaints under USERRA.
An employee serving less than 91 days of military service must be reemployed in the position he would have attained but for the period of military service, provided he's qualified for the position. If an employee isn't qualified for the position
after you've made reasonable efforts to qualify him, you must return him to the position he held before military service.
An employee absent for military service for more than 90 days must be reemployed in the position he would have attained or in a position of comparable seniority, status, and pay, provided he's qualified to perform the job. If he isn't qualified for
the position, you must make reasonable efforts to qualify him. If those efforts fail, you must return him to the position he held before the military service or to a position of comparable seniority, status, and pay.
If you're reemploying an employee with a disability incurred or aggravated during military service, you must make additional efforts. First, you must make reasonable efforts to accommodate the employee's disability so he may become qualified for the
position he would have attained if continuously employed. If he still isn't qualified despite your reasonable accommodation efforts, he must be placed in a position of equivalent seniority, status, and pay so long as he's qualified for the position
or can become qualified through your reasonable efforts. Finally, if the employee doesn't qualify for the equivalent position, he must be employed in a position that "most nearly approximates" the equivalent position in seniority, status, and pay.
There are limited exceptions to your obligation to reemploy employees returning from military service. Reemployment isn't required when doing so would be impossible or unreasonable, such as when a reduction in force during the leave period has
eliminated the employee's position.
Discharge protections
Once reemployed, returning servicemen and servicewomen are protected from discharge without cause. The extent of that protection is based on the length of military service. Individuals reemployed after 181 days or more of military leave may not be
fired without cause for a period of one year after reemployment. Individuals reemployed after 30 to 180 days of military service may not be fired without cause for six months after reemployment. There's no protection against discharge without cause
for individuals serving less than 30 days.
Discrimination and retaliation protections
USERRA prohibits you from discriminating against persons with past or present military obligations when making decisions relating to hiring, promotion, reemployment, termination, and employment benefits. You're prohibited from retaliating against
individuals who file complaints or exercise any right under USERRA.
Employee benefits
Under USERRA, employees on military leave are entitled to the same benefits provided to employees on other leaves of absence. For example, if you provide employees on Family and Medical Leave Act leave with continued health, life, or disability
insurance or allow them to continue to accrue vacation benefits, employees on military leave must be afforded the same benefits.
The commencement of military leave is a COBRA-qualifying event, and continued health insurance coverage is available to employees at their expense. The Veterans Benefits Improvement Act of 2004 (VBIA) expanded the continuation period for military
families from 18 months to 24 months.
VBIA: notice of USERRA rights and duties
In addition to extending the health insurance continuation period from 18 to 24 months, the VBIA requires you to notify present and returning employees of "the rights, benefits, and obligations of such persons and such employers" under USERRA. The
notice requirement can be met by posting a notice in the location where other workplace notices are customarily hung. The U.S. Department of Labor's Veterans Employment and Training Service (VETS) has created a poster that contains the notices
required under the VBIA. A color copy of the poster, suitable for printing, is available at no charge at www.dol.gov/vets/programs/userra/poster.htm.
USERRA technical assistance is available from VETS, which can be accessed by calling (866) 4USA-DOL or by visiting its website at www.dol.gov/vets. An interactive USERRA adviser is available online
at www.dol.gov/elaws/ussera.html.
You can research USERRA or any other employment law topic in the subscribers' area of www.HRhero.com, the website for Delaware Employment Law Letter. Access to this online library is included in your
newsletter subscription at no additional charge.
Copyright 2008 M. Lee Smith Publishers LLC
DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the
employment law attorney of your choice.
|
