Outten & Golden: Empowering Employees in the Workplace

Military Sacrifice Shouldn't Include a Job

May 31st, 2005 | Paula Brantner

At the time of year when we’re reminded of the enormous sacrifices those who serve in our military make, it’s also a good time to emphasize that losing a job should not be one of those sacrifices. When most military reservists are seeing more active duty time than they ever expected, they shouldn’t also have to worry about whether their jobs will be there when they returned. So consider it your patriotic duty to share this information with a reservist!

Those who serve in the military reserves (Air Force Reserve, the Air National
Guard, the Army Reserve, the Army National Guard, the Coast Guard Reserve, the Marine Corps Reserve, and the Navy Reserve) are quite likely these days to see overseas deployment, primarily in Iraq and Afghanistan. Of the service members deployed in November 2004 in Iraq and Afghanistan, about 33 percent were reservists. (See CBO Report on The Effects of Reserve Call-Ups). As this recent Congressional Budget Office report points out, “[M]any reservists, when they joined the military, probably did not anticipate the increased frequency and duration of the activations that have occurred during the past several years and may be finding those mobilizations more disruptive than they might have expected.”

As disruptive as the mobilizations are for reservists, they also can be disruptive for employers who lose their reservist employees to deployment. Small businesses, who employ about 18% of all reservists who hold civilian jobs, can be hit harder than other businesses more readily able to absorb the loss of personnel, as the slowdown in production, lost sales or additional expenses required to compensate for a reservist’s absence are likely to be most severe for small businesses. (See Inc.com article.)

As one CEO points out, “It always takes some sort of filling in that doesn’t in any way make up for the person we lose.” Cheryl A. Merchant, president and CEO of Hope Global, a multi-national textile company based in Cumberland, RI, who is currently dealing with the absence of three employees, says that the company has responded by hiring temps and consultants, and having other staff take on the missing employees’ responsibilities, sometimes requiring overtime pay. (See Providence Business News article.)

No matter how disruptive the absence of particular reservists may be, however, there is a law that protects them, in most circumstances, from losing their jobs while they’re away. The law is the Uniformed Services Employment and Reemployment Rights Act (USERRA for short). USERRA offers three key protections for departing reservists:

  • reemployment rights
  • health insurance protection
  • the right to be free from discrimination and retaliation

USERRA applies regardless of the size of the employer, and regardless of the reservist’s length of employment, as long as the job was not one held for a “brief, nonrecurrent period with no reasonable expectation of continuing.” Eligible reservists can expect upon their return:

  • Prompt reinstatement (depending on the length of absence, but generally a matter of days, not weeks).
  • Accrued seniority as if continuously employed.
  • Training or retraining and other accommodations, which may be critical in case of a long period of absence or service-connected disability.
  • Special protection against discharge, except for cause, for either 180 days (following periods of service of 31-180 days) or one year (for periods of service of 181 days or more.)

For more information about the protections offered by USERRA, see our site’s new military leave page.

USERRA is unfortunately a law that an increasing number of reservists have been required to use. Since Sept. 11, 2001, 3,601 reservists have filed with the U.S. Labor Department against civilian employers, while in the time period since Oct. 1, 2004, 236 individuals have filed discrimination cases based on their military obligations; 33 have claimed hiring discrimination; 34 have claimed discrimination due to retaliation. (See Detroit Free Press article.)

A recent article tells the story of two Texas reservists who claim to have lost their jobs due to their military service. Derek Spivey worked for Roadway Express in Irving, and had been in the National Guard for years. When he was placed on alert for possible service in Iraq, he told company officials – and they laid him off. When Roadway let him go, his wife said the company offered him $845, but made him sign a waiver saying he would not sue the company. (See WFFA.com article.)

Similarly, Al Shaw, who worked for salary and commission at a printing company in Carrollton, learned after he got to Iraq that he’d been terminated and wouldn’t be receiving unpaid commissions. The letter informing him of his termination said that “If your employment is terminated for any reason, no commisions will be paid after your last day of employment.” (See WFFA.com article.) After a local news investigation, Roadway launched an internal investigation of Derek Spivey’s layoff, and Business Printing changed Al Shaw’s status from terminated to inactive. However, they’re just two of thousands of reservists who have encountered employment problems, evidenced by the Labor Department statistics listed above.

Shaw was assisted by Employer Support of the Guard and Reserve (ESGR), a volunteer group designed to help employers and military reservists resolve any differences over compliance with USERRA. ESGR is a valuable resource for reservists with USERRA questions, or whose employers seem to have problems complying with USERRA. ESGR also recognizes employers who, like their employees, go above and beyond the call of duty when it comes to facilitating military service. Some even have salary replacement to cover the difference between a reservist’s military and civilian employment, although it isn’t legally required by USERRA.

Reservists with questions about their jobs should take advantage of one or more of the resources below, to educate them about their rights. All of us should make sure that our employers have posted the new USERRA poster, required to be posted in every workplace to educate reservists of their USERRA rights. And if you know a reservist, make sure he or she is aware of their legal rights under USERRA. With all that those newly activated for military service have to worry about, having a job when they return should be the least of those worries.

More Information:

Workplace Fairness: military leave (newly added to our site)

Employer Support of the Guard and Reserve

Department of Labor: E-Laws USERRA Advisor

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