Law Office of Dale M Rodriguez
Disability & Military Veterans Legal Services
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"Employ Law On Call"
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My Veterans law practice consists of assisting veterans with benefits and reemployment issues. As with the FMLA (and USERRA), the NDAA is a strict liability statute; employers violate the statute and may be sued when any requirement is not fully met, regardless of motivation or intent or how trivial the violation appears.
Veterans Reemployment Laws
Veterans reemployment laws are found on both the federal and state levels. There are 2 basic forms of federal veterans reemployment laws: (1) law that applies to employers generally (i.e., USERRA); and (2) laws that specially apply to federal government contractors (i.e., VEVRAA, VEOA, VETS). Additionally, some federal leave laws also benefit veterans and their caregivers. On the state level, there are a number of laws providing additional reemployment and benefit rights to veterans. For example, Florida (Military Affairs and Related Matters Code, Section 250) and Texas (Reemployment Following Military Service Law, Gov't Code, Chapter 613) both grant returning military veterans reemployment rights, but Florida goes a little bit beyond that required by federal laws.
Veterans reemployment laws can be confusing and easily violated unknowingly. Military veterans have rightfully earned these reemployment rights by their service and sacrifice and should not settle for standing in the back of the employment law line upon their retun to civilian life. On the other hand, while most employers wish to do right by returning veterans, sometimes violations occur despite honest efforts. Because most Americans feel strongly indebted to military veterans for their service and sacrifice, even minor technical violations of these laws must be taken seriously by employers. Please read below for more detail about these various reemployment laws that benefit our veterans.
Federal Veterans Reemployment Laws
USERRA Requirements for All Employers
This Uniformed Services Employment and Reemployment Rights Act ("USERRA") is a law that applies to ALL employers in the U.S., regardless of size, whether public or private, and even churches or religious organizations. The law controls how employers treat leave and related benefits of employees who are called up on active duty in any federal uniformed service branch by creating a floor below which an employer may not go. The law places specific burdens on both the employee and employer. Importantly, USERRA is a strict liability statute; employers violate the statute and may be sued when any requirement is not fully met, regardless of motivation or intent or how trivial the violation appears.
First, the employee's obligations. An employee must give notice to the employer of an impending absence due to military service (may be dispensed with if precluded by military necessity, impossible or unreasonable). Notice may be oral or written. Please note that the law covers an employee not yet in the military (i.e., an enlistee who has not yet reported for duty). Absent special circumstances, the employee may not extend leave coverage beyond 5 years. The employee must report back to the employer for reemployment within certain time limits (i.e., if on active duty 1-30 days, must report back on next regularly scheduled work day after completion of service plus 8 hours; if on active duty 31 to 180 days, must apply for reemployment within 14 days after completion of service; if on active duty 181 days or more, must apply for reemployment within 90 days after completion of service). All time frames may be extented by 2 years if the employee is slow to return to health after a service related injury/illness The employee must not be dishonorably discharged. Basic coverage under the Act is not dependant upon the timing, frequency, duration or nature of the military service. Notably, USERAA does not protect employees absent on state military duty or state call-ups by the National Guard.
Once notice of leave is received from the employee, the employer's obligations kick in. The employer must treat the protected employee as if he were on excused leave or furlough. Upon return, the employer must put the protected employee in the position he/she would have had if they had never left (i.e., a job they would otherwise have advanced or "escalated" to had they not left). If the employee is not qualified for such a position, the employer must reasonably provide training, if possible. If not reasonably possible to get the employee trained and qualified for such the escalated job, the employer must place the employee in the job last held before leave occurred. The fact that someone else now holds the job is not a defense. Only extremely narrow and difficult to meet variations of "changed circumstances" may be a viable defense to reemployment.
Beyond leave, other related benefits are also affected. Seniority, retirement benefits and pensions are to be treated by the employer as if no break in service occurred. Protected employees cannot be forced to use up accrued vacation during leave (but the employee can elect to receive paid leave). Benefits made available to employees for other types of non-military related leave must be made available. There is a COBRA-like requirement for health insurance benefits that extends for 24 months and there can be no waiting periods for coverage upon return. If leave is 30 days or less, health insurance must be maintained as if nothing happened; if beyond 30 days, health insurance must be made available at 102% of the full premium. COBRA purchase is available upon expiration of 24 months. Returning disabled veterans must be given reasonable accomodations that would allow them to perform job duties in the escalated or last held position as applicable.
Finally, and importantly, USERRA restricts employers from terminating protected employees, even if those employees are otherwise terminable at-will under state law. Specifically, if the employee was absent for military service between 31 and 180 days, the employer may not terminate his/her employment without cause for 6 months after reemployment; if military service absence was 181 days or more, the employer may not terminate without cause for 1 year after reemployment. If military service absence is 29 days or less, the employer may terminate at-will as normally permitted under state law.
Employer penalties for violating USERRA are stiff. Employees may file complaints of violations to the Department of Labor's Veterans' Employment and Training Services ("VETS") office. VETS officials are charged with investigating and resolving complaints and referral of cases to the Justice Department for prosecution. Aggrieved protected employees also have the right to file their own private court actions and, as relief, may recover lost wages, benefits, attorneys' fees & litigation costs, and may be reinstated to work. Employers found to have willfully violated USERRA will have the damages award doubled.
For more information on USERRA, please see the Department Of Labor's Fact Sheet.
VEVRAA/VEOA/VETS-JVA Requirements for Government Contractors
This is a particularly confusing area of the law. The Vietnam Era Veterans Readjustment Assistance Act of 1974 ('VEVRAA") as originally enacted, required federal government contractors to not discriminate against Vietnam Era veterans and also to engage in affirmative action in recruiting, retaining and advancing these protected veterans in their workforce. The only requirements for coverage were that the employer have a federal contract of $10,000 or greater and the employee to have been in the military on active duty during the Vietnam War years.
In 1998, this changed with the passage of Veteran's Equal Employment Opportunity Act ("VEOA"). First, VEOA raised the minimum federal contract amount for VEVRAA coverage to $25,000. More importantly, VEOA changed the definition of a protected veteran under VEVRAA to simply any veteran of any era (not just the Vietnam era) who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized and disabled veterans. A helpful guide to determining the many qualifiying wars, campaigns and expeditions can be found here.
Veteran's Employment and Training Service ("VETS") regulations (not a statute) are controlled by the U.S. Department of Labor. These regulations mirror the Jobs for Veterans Act of 2008 ("JVA") and impose a requirement on federal contractors covered by VEVRAA to file a annual VETS-100 report with the Department of Labor and to list job openings with local job banks.
The foregoing is just the tip of the iceberg in this confusing body of veterans employment laws and regulations applicable to federal contractors. Presently, there are no less than 7 different classifications of veterans that covered federal contractors must identify, track, report, not discriminate against and/or provide affirmative action.
For more information on the obligations of federal contractors generally, please visit my AAP/EEO website www.eeoesq.com. For additional useful information published by the Department of Labor for federal contractor veteran's obligations, please see their Fact Sheet.
The 2010 National Defense Authorization Act (H.R. 2647, Public Law No. 111-84) was signed into law on October 28, 2009. The NDAA is effective immediately and extends the Family Medical Leave Act of 1993 to give greater employment leave benefits to military families. Specifically, it provides two important new benefits:
Florida Veterans Reemployment Laws
Florida is one of the few states that provides employment benefits to veterans beyond that required by federal law. More specifically, under Florida's Military Affairs Law, as with USERRA, employees ordered into military service may not be penalized in their benefits and terms or conditions of employment. The primary difference is that Florida law extends these same basic protections to employees on state military duty or state call-ups by the National Guard (which USERRA does not cover). The Florida Act usually comes into play when the Governor calls up the Florida National Guard to help with natural disasters, such as restoring order and clean up in the aftermath of hurricanes.
Texas Veterans Reemployment Laws
Texas' Reemployment Following Military Service Law does not place obligations on private employers beyond that required by federal law. For public employers, Texas does require hiring and promotion preferences be given to veterans until those veterans comprise a certain percentage of that public employer's workforce.
As with the FMLA (and USERRA), the NDAA is a strict liability statute; employers violate the statute and may be sued when any requirement is not fully met, regardless of motivation or intent or how trivial the violation appears.