(Published November 3, 2008)
Every six months, the nation is reminded to thank the men and women serving in our armed forces. Veterans Day, like Memorial Day, sparks a collective outpouring of support for these brave individuals, past and present. But come November 12, many of us won't think again about the sacrifices they're making until next May rolls around.
Even worse, these holidays have become less about the service members — rather, Memorial Day is the three-day weekend that signals the unofficial start of summer; Veterans Day, well, those who don't have the day off from work or school are jealous of those who do.
What does this have to do with an employment law blog? This is a reminder of the everyday actions that employers can take to honor America's heroes; that is, treat them with respect and honor their workplace rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect past, present, and future military service members in the workplace. Employers' obligations extend beyond merely following the letter of the law.
It is mind-boggling to me that in some workplaces, service members are disrespected by their peers and supervisors to the point that they have filed harassment claims under USERRA. USERRA prohibits employers from denying "initial employment, reemployment, retention in employment, promotion, or any benefit of employment" based on military status. It does not specifically prohibit harassment, but some courts have held that the right to be free of a hostile environment is a "benefit of employment." It shouldn't take a law or a court interpretation to remind employers to protect service members from harassment.
USERRA provides broad protection for service members returning to the workforce; it is, after all, called the "Reemployment Rights" Act. There are very limited circumstances under which you can deny or even delay reinstatement. A temporary replacement should be prepared from their first day to vacate the position upon the service member's return. Courts won't accept as a reason for a delay in reinstatement the fact that another employee has filled the position. Heck, one court wouldn't even accept the fact that a police department kept a returning officer on desk duty because it was investigating his suspected dishonesty in completing return-to-work paperwork.
The court did go on to note that, while the department did not have a good enough reason to delay reinstating the employee to his original position, it could terminate him for cause once reinstated. That brings up another important USERRA protection point: Employees whose military service was for more than 180 days cannot be fired, unless for cause, for one year after reemployment; employees whose military service was for 31─180 days can only be fired for cause for six months after reemployment. For those time periods, qualifying employees may not be terminated at-will.
Those are just a few of the special workplace protections afforded to service members. It doesn't matter what your politics are or what your stance on the war is. This is about the individuals serving our country who deserve to be treated right in the workplace. Don't just do it because the law tells you to; do it because it's a way of honoring these brave men and women.
Gloria Ju
Editor in Chief
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