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Federal Law Says Employers Must Rehire Returning Service Personnel

It’s anyone’s guess when U.S. troops will pull out of Iraq.

The House of Representatives approved a timetable late last month to pull the troops out by Sept. 1, 2008, but President Bush has promised to veto the measure, if it passes the Senate.

Whatever happens, however, employers should understand their legal obligations to re-employ troops returning to the civilian labor force.

Employers must welcome back military personnel returning from voluntary enlistment and reservists returning from active duty under the Uniformed Services Employment and Reemployment Rights Act.

“It’s a federal law intended to assist our military in the hardship of going to war by requiring employers to provide certain benefits and hold jobs for them,” said Stacey E. James, an attorney with the San Diego office of Littler Mendelson.


Tough To Implement

James, who practices labor and employment law with a focus on military leave and reinstatement issues, said the concept of military leave law is great in theory, but application of the law can be difficult.

“A lot of employers don’t deal with returning service members on a regular basis,” said James. “So every time a service member returns, they have to relearn the law. And when you don’t know the law well, it is very easy to make mistakes.”

The intricacies of USERRA can be a trap for the unwary employer, she said, so employers need to understand their obligations as well as rights.

There are 1.8 million personnel on active military duty and 860,000 on active reserve service. Upon returning to their jobs, employers must re-employ service members and provide the opportunity to bring them up to speed in pay, benefits and job responsibilities.

Employees are entitled to receive the same rates of pay and benefits they would have received had they remained employed while in full-time service.

During their absences, for example, employers might have to increase three weeks of vacation to four weeks. Employers must keep the workers’ salaries at the same level as employees who stayed on the job.

And if necessary, employers must provide training to bring them up to speed.


The Escalator Principle

James said the employer has the obligation to provide training to advance returning employees, if others of similar seniority and skill had advanced during their absence.

“That is probably the most difficult aspect of USERRA trying to comply with USERRA’s escalator principle by qualifying an employee for a higher level position,” said James.

Providing training to “escalate” returning workers can be costly. And it can be complicated for employers to figure out what position the employees would have been in if they had continuously worked.

“The best thing the employer can do is work with the returning service member,” she said.

Another area of concern involves terminations. Employers cannot terminate returning employees except for cause for a period of one year after the date of re-employment.

Congress passed USERRA in 1994 and, in 2004, set up a demonstration project whereby the U.S. Office of Special Counsel, or OSC, would have an expanded role in enforcing the law, according to a news release distributed by the OSC last month.


Guarding Their Interests

The Employer Support of the Guard and Reserve, a Department of Defense staffing group, was established to promote cooperation and understanding between reservists and their civilian employers and to assist in the resolution of conflicts arising from an employee’s military commitment.

George Carroll, executive director of the Southern California Committee of ESGR, said his group provides ombudsman services for reservists and employers with questions regarding USERRA or their rights and responsibilities.

“We are enjoying a time now where the value of the Guard and Reserve is more directly recognized after 9/11 than years previous,” said Carroll. “You tend to have employers that have a more patriotic streak or a greater sense of civic duty.”

While ESGR does not facilitate in finding new jobs for returning reservists, it is aware of staffing agencies that can provide assistance.

Nicole Robbins, director of marketing and communications for the Eastridge Group of Staffing Cos., said the return or departure of military personnel does not dramatically impact her business, which has a half-dozen offices in San Diego.

Robbins said reservists and voluntary enlistment personnel usually possess specialized skills.

“The highly specialized role is not one you would look to a staffing company to fill on a temporary basis, they usually require a (long-term) fill,” said Robbins.

However, she said Eastridge often works with spouses of service members and places them in such jobs as accounting, administrative, human resources, information technology, legal, light industrial and medical.

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