W e have prepared this Alert to advise you Employee Rights and - - PDF document

Employment Law Alert

May 2005

New Poster Requirement Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

By Martha L. Lester, Esq. and Kristen L. Laracca, Esq.

W

e have prepared this Alert to advise you

• f a new law signed by President Bush

that makes changes to the Uniformed Services Employment and Reemployment Rights Act, known as USERRA, and its effect on all employers (in both the public and private sectors, as well as federal employers). USERRA contains no threshold or minimum size to limit its reach. Accordingly, an employer with only one employee is covered for purposes of USERRA.

Overview

USERRA is a federal law that protects the re- employment rights of employees who either voluntarily or involuntarily leave their positions to undertake military service. USERRA also prohibits employers from discriminating or retaliating against an employee on the basis of past military service, current military obligations, or intent to join one of the uniformed services. The law is intended to encourage non-career uniformed service, such that

• ur country can enjoy the protection of these

services, lead by quality individuals, while maintaining a balance with the needs of private and public employers, who also rely on these same

• individuals. USERRA also is intended to minimize

the disadvantages to an individual that occur when that person must be absent from his or her civilian job to serve in the military.

Employee Rights and Benefits Under USERRA

Employees have the right to be re-employed in their civilian jobs if they leave that job to perform service in one of the uniformed services provided that the employee: a) ensures that his or her employer receives advance written or oral notice of the service; b) has five years or less of cumulative service in the uniformed services while with that particular employer; c) returns to work or applies for re-employment in a timely manner upon conclusion of service; and d) has not been separated from the service with a disqualifying discharge or under other less than honorable conditions. USERRA provides that an individual may serve up to five years in the uniformed services, in a single period of service or in cumulative periods totaling five years, and retain the right to re- employment by his or her pre-service employer. There are, however, specific exceptions to the five- year limit on uniformed service that allow an individual to serve longer than five years while working for a single employer and retain re- employment rights under USERRA. The exceptions involve unusual service requirements, circumstances beyond the individual’s control, or service (voluntary or involuntary) under orders issued pursuant to specific statutory authority or the authority of the President, Congress or a Service Secretary.

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USERRA further provides service members special protection from discharge from civilian employment after returning from uniformed

• service. If the individual served over 180 days

before re-employment, he or she may not be discharged from the employment position within

• ne year after re-employment, except for cause. If

the individual served between 31 and 180 days in the military, he or she may not be discharged from the employment position within 180 days after re- employment, except for cause. A reinstated service member whose duration of service lasted 30 days or less has no similar protection from discharge. Moreover, USERRA mandates that members of the uniformed services, who conclude their tours of duty and who are re-employed by their civilian employers, receive all benefits of employment that they would have obtained had they been continuously employed, such as entitlement to a leave under the Family and Medical Leave Act. Employees, however, are not entitled to benefits that are considered a form of short-term compensation, such as accrued paid vacation.

Employer Defenses to a USERRA Claim

USERRA provides three statutory defenses that an employer may use to defend against a claim for USERRA benefits. The employer bears the burden

• f proving any of these defenses. First, an employer

is not required to re-employ a returning service member if the employer’s circumstances have so changed as to make such re-employment impossible or unreasonable. In view of USERRA’s remedial purposes, this exception is narrowly

• construed. The employer bears the burden of

proving that changed circumstances make it impossible or unreasonable to re-employ the returning veteran. This change must be in the employer’s circumstances, as distinguished from the circumstances of its employees. For example, the defense of changed circumstances is available where re-employment would require the creation

• f a “useless job or mandate reinstatement where

there has been a reduction in the workforce that reasonably would have included the veteran.” However, an employer cannot establish that it is unreasonable or impossible to reinstate the returning service member solely by showing that no

• pening exists at the time of the re-employment

application or that another person was hired to fill the position vacated by the veteran, even if re- employing the service member would require terminating the employment of the replacement employee. Second, an employer also is not required to re- employ a returning service member if such re- employment would impose an undue hardship on the employer. This defense applies only where a person is not qualified for a position due to disability or other bona fide reason, after reasonable efforts have been made by the employer to help the person become qualified. The third statutory defense against re- employment requires the employer to establish that “the employment from which the person leaves to serve in the uniformed services is for a brief, non- recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” USERRA does not define “significant period.” For example, under USERRA, a person holding a seasonal job may have re-employment rights if there were a reasonable expectation that the job would be available at the next season.

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New Posting Requirement for Employers

As of March 10, 2005, all employers now are required to post a new notice in the workplace advising employees of their rights and benefits under USERRA. A copy of the new notice entitled “Your Rights Under USERRA” is included with this Alert. This notice should be posted in a prominent place where employees customarily check for such information. Instead of posting, the new law provides that employers may provide this notice to employees in alternate ways in an effort to minimize costs as long as the full text of the notice is provided. Acceptable methods also include handing out the notice, mailing the notice, or distributing the notice to employees via e-mail. Compare the Conscientious Employee Protection Act, known as CEPA, under which the employer is required to both “conspicuously” post notice of its employees’ protections and obligations under CEPA, and to use other appropriate means to keep employees informed of those protections and

• bligations on an annual basis.

Cost permitting, we suggest that the better course of action is to post the “Your Rights Under USERRA” notice in the prominent location where all other such notices, i.e. EEO and CEPA notices, are placed. The USERRA poster is now available at www.dol.gov/vets/programs/userra/poster.pdf. If you have any further questions about the issue discussed in this Alert or any other employment practices or compliance issues, please do not hesitate to call Martha L. Lester, Chair of the Employment Law Practice Group, or Kristen L. Laracca, a member of the Employment Law Practice Group, at (973) 597-2500.

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New Edition Coming Soon

The new edition of “The Practical Guide to Federal and New Jersey Employment Law: The Employers’ Resource,” Executive Editor, Martha L. Lester, includes:

Federal Law Updates Easy-to-Follow Index New In-Depth Chapters

The Guide, published in connection with the New Jersey Business & Industry Association, is the resource for New Jersey employers seeking to comply with applicable federal and state laws, regulations and procedures in the employment-related area. It provides management with critical information concerning existing laws, emerging trends, most frequently asked questions, and practical tips on managing the workforce and workplace. T

• obtain your copy of the new edition of, “A

Practical Guide to Federal and New Jersey Employment Law: The Employer’s Resource,” please contact Karen Cerreto at 973.422.6466 or email kcerreto@lowenstein.com.

U.S. Department of Labor 1-866-487-2365

YOUR RIGHTS UNDER USERRA

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

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Publication Date—February 2005

REEMPLOYMENT RIGHTS

You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and: ✩ you ensure that your employer receives advance written or verbal notice of your service; ✩ you have five years or less of cumulative service in the uniformed services while with that particular employer; ✩ you return to work or apply for reemployment in a timely manner after conclusion of service; and ✩ you have not been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.

RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION

If you: ✩ are a past or present member of the uniformed service; ✩ have applied for membership in the uniformed service; or ✩ are obligated to serve in the uniformed service; then an employer may not deny you any of the following because of this status: ✩ initial employment; ✩ reemployment; ✩ retention in employment; ✩ promotion; or ✩ any benefit of employment. In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection.

HEALTH INSURANCE PROTECTION

✩ If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military. ✩ Even if you don't elect to continue coverage during your military service, you have the right to be reinstated in your employer's health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.

ENFORCEMENT

✩ The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints

• f USERRA violations.

✩ For assistance in filing a complaint, or for any other information on USERRA, contact VETS at 1-866-4-USA-DOL or visit its website at http://www.dol.gov/vets. An interactive online USERRA Advisor can be viewed at http://www.dol.gov/elaws/userra.htm. ✩ If you file a complaint with VETS and VETS is unable to resolve it, you may request that your case be referred to the Department of Justice or the Office of Special Counsel, depending on the employer, for representation. ✩ You may also bypass the VETS process and bring a civil action against an employer for violations of USERRA. The rights listed here may vary depending on the circumstances. This notice was prepared by VETS, and may be viewed on the internet at this address: http://www.dol.gov/vets/programs/userra/poster.pdf. Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying this notice where they customarily place notices for employees.

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.

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1-800-336-4590