by Laura Pokrzywa
The unemployment rate for post-9/11 military veterans continues to outpace the general unemployment rate by several percentage points, according to a Veteran’s Day article on CNNMoney.com. In October of this year, unemployment among recent veterans hit 10%, compared with 6.8% among non-veterans.
This disparity continues despite several federal programs and protections set up for service members returning to civilian work. One of those federal protections that impacts all employers is the Uniformed Services Employment and Reemployment Rights Act (USERRA).
What is USERRA? USERRA was enacted in 1994 to provide job protection and reinstatement rights to employees who leave a job for voluntary or involuntary service in the uniformed services. USERRA applies to persons who perform duty, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. It also covers Federal training or service in the Army National Guard and Air National Guard and certain disaster response work.
Who is eligible? USERRA rights must be extended to full-time, part-time, and probationary employees. Under USERRA, returning employees are eligible for reinstatement if they meet the following criteria:
· Their absence was due to service in the uniformed services;
· They gave advance notice that the leave was for service in the uniformed services (unless such notice was impossible or unreasonable due to military necessity);
· The cumulative period of military service with that employer must not have exceeded five years;
· They must not have been released from service under dishonorable or other punitive conditions;
· They reported back to work in a timely manner, submitting a timely application, unless timely reporting back or application was impossible or unreasonable.
What are an employee’s rights under USERRA? Returning service members are afforded the following rights:
· Reemployment in the job that they would have attained had they not been absent for military service — same seniority, status and pay.
· Reasonable efforts (training or retraining) must be made to enable returning service members to qualify for reemployment.
· If the service member cannot qualify for the position their seniority warrants, he or she must be reemployed, if qualified, in any other position that is the nearest approximation.
· Entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence.
· Individuals performing military duty of more than 30 days may elect to continue employer-sponsored health care for up to 24 months (the employee may be required to pay up to 102 percent of the full premium)
· For service of less than 31 days, health care coverage is provided as if the service member had remained employed.
· Certain pension protections are also given. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.
The rights established by USERRA are the bare minimum that must be granted to employees in the uniformed services. If any state or local law, employment contract or company policy should go above and beyond these minimal rights, those laws, contracts or policies must be followed. In fact, most states go beyond USERRA’s basic requirements, some even providing employees with various lengths of paid military leave. Check your state’s laws to determine who is eligible for such paid leave.
Here are a few summaries of state laws, some of which go above and beyond USERRA:
Pennsylvania (51 Pa. Cons. Stat. Ann. §§ 7302, 7309): An employee who enlists or is drafted during a time of war or emergency called by the president or governor is entitled to unpaid military leave along with reservists called into active duty. Returning employee must be reinstated to same or similar position with same status, seniority, and pay. Employers may not discharge or discriminate against any employee because of membership or service in the military. Employees called to active duty are entitled to 30 days’ health insurance continuation benefits at no cost.
New York (N.Y. Mil. Law § 317)
Members of the state military forces called up by governor and members of U.S. uniformed services are entitled to unpaid leave for active service; reserve drills or annual training; service school; initial full-time or active duty training. Returning employee is entitled to reinstatement to previous position, or to one with the same seniority, status, and pay, unless the employer’s circumstances have changed and reemployment is impossible or unreasonable.
North Carolina (N.C. Gen. Stat. §§ 127A-201 and following, 127B-14)
Members of the North Carolina National Guard called to active duty by the governor are entitled to take unpaid leave. Returning employee must be restored to previous position or one of comparable seniority, status, and salary; if no longer qualified, employee must be placed in another position with appropriate seniority, status, and salary, unless the employer’s circumstances now make reinstatement unreasonable. Employer may not discharge employee called up for emergency military service.
Georgia (Ga. Code Ann. § 38-2-280)
Members of U.S. armed forces or Georgia National Guard called into active federal or state service are entitled to unlimited unpaid leave for active service, and up to six months leave in any 4-year period for service school or annual training. Employee is entitled to reinstatement with full benefits unless employer’s circumstances have changed to make reinstatement impossible or unreasonable.
Another federal program specifically addresses the employment challenges of returning service members and veterans living with traumatic brain injury (TBI) and/or post-traumatic stress disorder (PTSD). The Department of Labor’s (DOL) “America’s Heroes at Work” project offers employers information and tools to help these returning service members succeed in the workplace. The DOL encourages employers to consider the skills most vets bring to a job. Military training and experience tends to develop strong leadership qualities, demands team work but teaches vets to work independently, and it builds a strong respect for procedures and individual responsibility. Employers who are looking for such traits should be sure to include vets in their hiring initiatives.
Unfortunately, some vets with TBI and/or PTSD may find transitioning to a workplace environment to be difficult — but not impossible. The DOL offers free on-line training materials to help employers, showing them that simple workplace supports can often help individuals with TBI and/or PTSD succeed in their jobs. For some it may be as easy as providing clear written instructions for a job, making daily “to-do” lists with boxes to check as the tasks are completed, allowing more frequent breaks, or allowing a flexible start time. If you would like more information about accommodating a wounded vet or developing a Veterans hiring initiative, visit the America’s Heroes at Work website.