The Law Protects Troops When They Return to the Workforce

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Of the 1.5 million troops that have served in Iraq and Afghanistan, roughly 25 percent are "citizen soldiers," members of the Reserves or National Guard. Since May 2002, nearly 2,000 Oregonians have been deployed to Iraq, Afghanistan and other locales.

These numbers only count reservists and members of the National Guard, not active members of the regular armed forces.

As our troop levels in Iraq decrease, more Oregon employers will welcome home reservists. Some will be physically injured while others will have psychological injuries. A recent Pentagon study showed that, even six months after their homecomings, more than one-third of returning vets had signs of depression, post-traumatic stress disorder, or other relationship problems.

This column provides guidance to employers of returning vets or their families.

Re-employment rights

The Uniform Services Employment and Reemployment Rights Act gives returning vets re-employment rights and antidiscrimination protection.

It's different from other federal laws governing the workplace because it doesn't have an exception for small employers. All employers are covered.

The law's strict. Returning soldiers are entitled to their former positions. The law also contains an "escalator clause" that requires that returning vets be placed in the position they would have attained had they not left work.

This credit for seniority means the returning vet does not step back on the escalator where she stepped off, but rather she steps back on the escalator at the point she would have occupied had she not taken military leave.

If the employee would have received a promotion, but upon return does not have the qualifications for the new position, the employer must make reasonable efforts to qualify the employee for the new position.

The law even protects returning vets from termination without cause.

If the employee was on military leave for more than 31 days but less than 180 days, the employee can't be terminated without good cause for 180 days after re-employment. If the military leave was more than 180 days, the employee is protected for one year.

Military leave is unpaid, but the employee may use accrued vacation pay during the leave and there is a COBRA-like benefit for medical insurance.

The exceptions to the duty to re-employ are very narrow.

Employers can refuse to re-employ if the employee volunteered for military service and has been gone for a cumulative period of more than five years. There are many exceptions to what counts toward the five years of service.

Employers can also refuse to rehire if there has been a layoff that would have included the vet had he or she remained continuously employed. Courts have severely limited this exception.

For example, two different courts have held that the complete elimination of an employee's department while the employee was on leave isn't enough to justify not rehiring the vet.

The employer also can refuse to rehire when the prior employment was for a very short time and there was no expectation that employment would continue for a significant period.

Finally, the employer can refuse to rehire a disabled vet using the same "undue hardship" exception that applies in the Americans with Disabilities Act. Employers should be very cautious in relying on any of these exceptions because the courts have made it very clear that they will be construed very narrowly, and against the employer.

Employers violate the law at their peril. An Oregon jury recently awarded a serviceman who was terminated after he returned from a two-week military leave $900,000 in punitive damages. And the monetary penalty pales in comparison to the bad publicity the employer received.

Family Medical Leave

The Department of Veterans Affairs says that for every soldier killed in conflict in Iraq and Afghanistan, at least eight and as many as 16 are wounded or disabled.

To address this reality, Congress recently amended the federal Family Medical Leave Act to provide additional benefits for injured vets and their families.

These changes only apply to employers with 50 or more employees. Family leave is now available for a "qualifying exigency" related to a family member's active duty call-up.

Congress left the task of defining "qualifying exigency" to the Department of Labor, and while it has not yet done so, it is anticipated that the definition's reach will be broad.

For example, some commentators believe that a father's request for time off to greet his child at a distant air base upon the child's return from active duty will satisfy the "qualifying exigency" test and be protected leave.

Under the law, an employee may now take an additional 14 weeks, for a total of 26 weeks, in a 12-month period to care for a family member or next of kin injured or ill as a result of active military duty.

Given the large number of returning injured soldiers, it is likely that more and more employees will need this extended leave.

The leave is still unpaid except when the employee has paid leave that can be used.

Rights for the disabled

Finally, employers must remember that a returning vet may be "disabled" as that term is defined in the Americans with Disabilities Act and the vet may be entitled to "reasonable accommodation" under that law, including a leave of absence after the expiration of leave guaranteed under the Family Medical Leave Act.

Employers, do your duty

Many employers have gone above and beyond the "call of duty" by, among other things, continuing to pay their employees on military leave the difference between their salaries and their military salaries. On the other hand, some employers have resisted compliance with these strict laws or have misunderstood the requirements and paid the price in settlements or judgments.

Originally published in Portland Business Journal, December 19, 2008.

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Amy Joseph Pedersen
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