{"id":3686,"date":"2019-05-30T12:29:13","date_gmt":"2019-05-30T16:29:13","guid":{"rendered":"http:\/\/employerdefensereport.com\/?p=3686"},"modified":"2026-03-20T11:46:18","modified_gmt":"2026-03-20T15:46:18","slug":"memorial-day-reminder-remember-your-obligations-to-employees-currently-serving-and-those-returning-from-service","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/employer-defense-report\/memorial-day-reminder-remember-your-obligations-to-employees-currently-serving-and-those-returning-from-service\/","title":{"rendered":"Memorial Day Reminder:  Remember Your Obligations to Employees Currently Serving and Those Returning From Service"},"content":{"rendered":"<p>As we pa<img loading=\"lazy\" decoding=\"async\" title=\"Shutterstock 1371695303\" class=\"  wp-image-3687 alignright\" src=\"http:\/\/employerdefensereport.connmaciel.stagingarea.org\/wp-content\/uploads\/sites\/2\/2019\/05\/shutterstock_1371695303.jpg\" alt=\"shutterstock_1371695303\" width=\"390\" height=\"312\" \/>used on Memorial Day to remember those who gave their lives in active military service, employers should not forget that employees who are currently serving in the Army, Navy, Air Force, Marines and Coast Guard (collectively, the \u201cuniformed services\u201d) are afforded a broad range of rights and protections by the Uniformed Services Employment and Reemployment Rights Act of 1994 (\u201cUSERRA\u201d).\u00a0 USERRA is a federal law that protects civilian job rights and benefits for veterans and members of the Guard and Reserves.\u00a0 USERRA, like the Family and Medical Leave Act, includes both substantive job restoration rights\u2014at the conclusion of one\u2019s service\u2014as well as non-discrimination and non-retaliation provisions.\u00a0 The job restoration rights provided by USERRA, however, impose heightened obligations on employers in an effort to ensure the returning service member is not disadvantaged when reentering the workforce because of his or her service.\u00a0 Many employers also do not realize that returning service members\u2014those that return to the same employer from which they took leave to serve\u2014may only be terminated for just cause for certain periods of time depending on the length of their service.<\/p>\n<p><strong><em>No discrimination or retaliation<\/em><\/strong>.\u00a0 Let\u2019s start with the easy part.\u00a0 As you might expect, employers must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service.\u00a0 Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has acted to enforce protections under USERRA, testified or otherwise <!--more-->made a statement in (or in connection) with a proceeding under USERRA, assisted or participated in a USERRA investigation or exercised a right provided for by USERRA.<\/p>\n<p><strong><em>Job Restoration Rights<\/em><\/strong>.\u00a0 Employees who have been on leave or otherwise absent from their position due to \u201cservice in the uniformed services\u201d have extensive reemployment rights under USERRA.\u00a0 Service is defined as the \u201cperformance of duty on a voluntary or involuntary basis in a uniformed service\u201d and can include:<\/p>\n<ul>\n<li>Active duty and active duty for training;<\/li>\n<li>Initial active duty for training;<\/li>\n<li>Inactive duty training;<\/li>\n<li>Full-time National Guard duty;<\/li>\n<li>Absence from work for an examination to determine a person\u2019s fitness for any of the above types of duty;<\/li>\n<li>Funeral honors duty performed by National Guard or Reserve members; and<\/li>\n<li>Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency.<\/li>\n<\/ul>\n<p>Employers should also note that the \u201cuniformed services\u201d consist not only of the Army, Navy, Marine Corps, Air Force and Coast Guard, but also each branch&#8217;s Reserve wing, the Army National Guard and Air National Guard, the Commissioned Corps of the Public Health Service and any other category of persons designated by the President in time of war or emergency.<\/p>\n<p>Restoration rights are, in certain limited circumstances, forfeited, if the returning service member was:<\/p>\n<ul>\n<li>Separated from uniformed service with a dishonorable or bad conduct discharge;<\/li>\n<li>Separated from uniformed service under other than honorable conditions, as characterized by regulations of the uniformed service;<\/li>\n<li>Dismissed as a commissioned officer by sentence of a general court-martial, in commutation of a sentence of a general court-martial, or, in time of war, by order of the President;<\/li>\n<li>Dropped from the rolls as a commissioned officer due to absence without authority for at least three months or for being imprisoned by a civilian court.<\/li>\n<\/ul>\n<p>If the returning service member became disabled as a result of his or her service, or aggravated a prior disability, the employer must make reasonable efforts to accommodate that disability and to help the employee become qualified to perform the duties of his or her reemployment position.<\/p>\n<p><strong><em>The Escalator Principle<\/em><\/strong>.\u00a0 Unlike the FMLA which merely requires that an employee returning from leave be reinstated to the same or an equivalent position, USERRA mandates that the returning service member must be placed in his or her prior job or the position that he or she would have attained with \u201creasonable certainty\u201d but for his or her military service.\u00a0 This job restoration obligation is referred to as the \u201cescalator principle\u201d and is often misapplied by employers.<\/p>\n<p>While not a common occurrence, there are instances in which the returning service member may be transferred or demoted to a lesser position due to a workforce reorganization or change in business circumstances.\u00a0 Employers must take care to ensure that the returning service member\u2019s position includes not only the pay level he or should would have attained but for his or her service, but also any enhanced benefits and other job perks he or she would have received if he or she had not left his or her position.\u00a0 While this may be a simple question when an employee holds a position governed by a collective bargaining agreement or otherwise subject to seniority rules, challenging questions can arise when the returning employee maintains that he or she would most likely have been promoted to a different position but for his or her service.\u00a0 In one interesting case, a Pfizer employee learned upon returning from a tour of duty in Iraq that his position had been eliminated and was offered a \u201cspecial tasks\u201d role with comparable pay and benefits but reduced responsibilities.\u00a0 While he held a non-exempt hourly position before leaving for Iraq, the employee requested that he be given one of the newly created exempt team lead positions because he believed he would have received the position had he been able to apply for it.\u00a0 While the lower court dismissed the employee\u2019s case finding that discretionary promotions were not subject to the escalator principle, the First Circuit Court of Appeals vacated the dismissal, explaining that \u201cassessments of discretionary and non-discretionary promotions could both be subject to the same \u2018reasonable certainty\u2019 test of whether promotion would have occurred in the absence of military service.\u201d\u00a0 <em>Rivera-Mel\u00e9ndez v. Pfizer Pharm., LLC<\/em>, 730 F.3d 49 (1st Cir. 2013).\u00a0 The lesson learned here is that employers should not simply place a returning service member in his or her prior position; they should, instead, evaluate each situation on a case by case basis\u2014including the employee in the discussion\u2014and try to determine where the employee would be on the \u201ccareer ladder\u201d had he or she not taken leave to serve.<\/p>\n<p>If a returning service member is unable\u2014due to a disability\u2014to return to the position he or she would have received via the escalator principle despite the employer\u2019s efforts to identify a reasonable accommodation and help the employee to become qualified, the employer should place the individual in an equivalent position or one that is the nearest approximation to the equivalent position with respect to seniority, status and pay.<\/p>\n<p><strong><em>Just Cause Termination, Only.\u00a0 <\/em><\/strong>Many employers do not realize that servicemembers may only be terminated if just cause exists for a certain period of time after they return to work.\u00a0 If the returning service member\u2019s most recent period of service in the military was more than 30 days, he or she must not be discharged, except for cause, for: (a) 180 days after the employee\u2019s date of reemployment if his or her most recent period of uniformed service was more than 30 days, but less than 181 days; or (b) for 1 year after the date of reemployment if the returning service member\u2019 most recent period of uniformed service was more than 180 days.<\/p>\n<p>The concept of \u201cjust cause\u201d under USERRA differs from the concept we see in unionized workplaces as the returning service member may be discharged because of conduct or, in some circumstances, because of the application of other legitimate nondiscriminatory reasons.\u00a0 When terminating a returning service member because he or she engaged in misconduct, the employer must prove that it was reasonable to discharge the individual for the conduct in question, and that he or she had express or implied notice that the conduct would constitute cause for discharge.\u00a0 Such notice can, obviously, be established through handbooks or policies and procedures that outline the types of offenses that can result in termination without resorting to the employer\u2019s progressive discipline policy.\u00a0 Job eliminations can, under USERRA, also constitute \u201cjust cause\u201d for termination.\u00a0 Here, too, the employer will bear the burden of proving that the returning service member\u2019s job would have been eliminated\u2014or that he or she would have been laid off\u2014had he or she not taken military leave.\u00a0 Obviously, if you are eliminating only one position\u2014the one to which the service member is returning\u2014you will likely find it difficult to carry your burden.<\/p>\n<p><strong><em>Doing Your Duty<\/em><\/strong>.\u00a0 There are a number of steps that employers can take to help ensure they comply with USERRA.\u00a0 Review your employee handbook to confirm military status is included in the EEO\/non-discrimination policy and that you have a military leave policy that addresses job restoration rights.\u00a0 Training your managers is another important step so they understand what they should and should not do both when employees need to take leave related to their service as well as when they are preparing to return.\u00a0 Given the complexities described above, it is often a good idea to train members of your human resources team as well because they may not be fully versed on these issues.\u00a0 We at <a href=\"http:\/\/www.connmaciel.com\/labor-and-employment\">Conn Maciel Carey LLP<\/a> are here to help if you have questions about USERRA or need help reviewing your policies and\/or training your managers.\u00a0 If your organization is interested in exploring ways to go above and beyond what USERRA requires, the Employer Support for the Guards and Reserves (\u201cESGR\u201d)\u2014a\u00a0 Department of Defense program established in 1972 to promote cooperation and understanding between Reserve Component Service members and their civilian employers\u2014has created programs that recognize employers with various categories of awards based on their efforts to support their employees (and caregivers) in the uniformed services.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>As we paused on Memorial Day to remember those who gave their lives in active military service, employers should not forget that employees who are currently serving in the Army, Navy, Air Force, Marines and Coast Guard&hellip;<\/p>\n","protected":false},"author":13,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[813],"tags":[847,849,821],"class_list":["post-3686","post","type-post","status-publish","format-standard","hentry","category-wage-hour-compliance","tag-hiring-background-checks","tag-leaves-of-absence","tag-workplace-equity"],"acf":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.8 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Memorial Day Reminder: Remember Your Obligations to Employees Currently Serving and Those Returning From Service - Employer Defense Report<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" 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