Main rights of employees who serve in the military

1. The right to re-employment after serving
2. The right to maintaining benefits and seniority
3. The right to be free from discrimination

The people who fight for the United States of America have to make sacrifices that many civilians cannot fully appreciate. Their whole lives can be disrupted and thrown off balance, and whether service is voluntary or involuntary, they dedicate themselves to doing what they can to protect their country during their service. It is fitting, then, that the government at least provides them some security when they return. Workers who serve in the military have special protections under both federal and California state law. In terms of employment, these safeguards help them face many of the challenges they might encounter upon returning to civilian life. Consequently, for employers and their employees who plan on serving or have served in the military, it is crucial to understand how the law provides shelter.

1. The right to re-employment after serving

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) gives job protection to employees who serve in the military, typically those in the military reserves or the National Guard. This federal law applies to all employers. Essentially, it makes military service count as an unpaid leave of absence. Employees do, however, have to meet the eligibility criteria. For instance, the person must have had or have applied for a civilian job, must have given notice to the employer prior to leaving for military training or service (with exceptions for prevention due to military need), and must report back to the civilian job in a timely way or promptly submit an application for reemployment. Additionally, the person cannot have served more than 5 years (with some exceptions) and cannot be dishonorably discharged to be eligible for the protections under USERRA. Importantly, the protections USERRA affords apply to those who enlist voluntarily or involuntarily.

Under USERRA, employers of returning veterans are prohibited from terminating them without cause for at least a year after they are reinstated. Of course, there are some exceptions to this because it is not always feasible. Employers are not obligated to do this if, for instance, it poses an undue hardship or if the pre-service employment was brief and there was no reasonable expectation that employment would continue for a long period of time. Additionally, for employees who only served between 31 and 180 days, employers are only obligated to refrain from firing them without cause for 180 days.

2. The right to maintaining benefits and seniority

During military service, individuals protected under USERRA have a right to choose to continue their health insurance coverage, for themselves and their dependents, provided by their previous civilian employer. However, for tours longer than 30 days, the employer can charge up to 102% of the entire premium. Similarly, when the returning service member is reemployed, health insurance coverage must be immediately reinstated without a waiting period.

In addition, under federal law, when an employee returns from the military, the employer cannot simply reinstate them into the same position they were in before serving. Instead, the employer has to determine what position the employee would have been in if they had not served. When qualifications become an issue, the employer has to provide training. Essentially then, employees returning from service should be promoted and more than that, they should receive the same benefits and seniority status they would have been afforded if they had not left for military service. Again, there are some exceptions.

USERRA also mandates that employers make reasonable efforts to accommodate returning service members who incurred or worsened a disability during their time in the military. If the disability precludes reasonable accommodation for the job the individual would otherwise be reinstated to, the employer has to place the individual in a different position that is as similar as possible to the one they would otherwise be entitled to. That means it should approximate the pay and status of the position that the individual would normally be placed in.

3. The right to be free from discrimination

In California, the Fair Employment and Housing Act (FEHA) lists classes that are protected from discrimination in employment practices. Although many likely know some of the more obvious classes like race, sex, and national origin, it may be a surprise to some to learn that veteran status is one such protected class as of 2014. It is also protected federally, but California has more safeguards against discrimination. This means that veterans in California are protected against various kinds of adverse employment actions on the basis of their veteran status. For instance, employers covered by FEHA (those with more than 4 employees, with some exceptions) cannot deny vacation time or health insurance benefits to individuals just because they are veterans. More generally speaking, veterans, like other protected classes, cannot be discriminated against through disparate treatment or disparate impact, meaning both intentional and unintentional forms of discrimination are prohibited. One example of disparate treatment discrimination would be an employer paying a veteran receiving veteran benefits less than employees in similar positions who are not receiving veteran benefits. Another example would be refusing to hire a recently returned service member because of worries that they will not fit into the flexible nature of the workplace given the rigidity of the military. For veterans, disparate treatment is likely more of a concern than disparate impact discrimination due to the pervasive biases many people have about the military and those who serve. Given that, it is important to note that harassment in the workplace based on veteran status is also considered illegal discrimination, and employers have a duty to prevent it and resolve it if it does occur.

Veterans should be lauded, not harassed, or discriminated against, and they deserve safeguards in employment to make at least one area of life a bit easier upon return from military service. Because the government, at least, acknowledges some of the sacrifices military service members make, there are laws that protect them, many of which are aimed at facilitating their employment after they return to civilian life. If you believe you have been denied rights you are entitled to as a current of former member of the military, if you have been discriminated against because of your veteran status, call a discrimination attorney to discuss how you can get what you are due.