Clearfield Commissioners Reminded of Employer Obligations to Service Members
CLEARFIELD – Del Spafford, a northwest area Ombudsmen for the Pennsylvania Committee for Employer Support of the Guard and Reserve (ESGR), reminded the Clearfield County Commissioners of the obligations employers have to members of the guard and reserves at Tuesday’s work session.
Almost half of the nation’s military strength resides in the guard and reserves. These men and women perform critical roles, such as homeland defense and serve around the world to ensure freedom, and it wouldn’t be possible without support from their employers, said Spafford, adding they offer briefings such as this because of employer ignorance to law.
According to him, the link between the guard and reserves and their civilian employers led to the creation of the ESGR. The ESGR is a Department of Defense agency that develops and promotes a culture in which all American employers support and value the military service of their employees.
Spafford said the agency is the principle advocate within the defense department that supports relevant initiatives; recognizes outstanding support; increases awareness of applicable laws; and resolves conflict between employers and service members.
Established in 1972, he said the ESGR operates through a network of thousands of volunteers and support staff in all 50 U.S. states, three territories and the District of Columbia. Through a national and local organizational structure, the ESGR provides services to assist members of the guard and reserves and their civilian employers.
Spafford said they advocate relevant initiatives on behalf of employers, service members and their families. The ESGR promotes employer support through regular communications to military leadership while serving as a communication link between employers and the defense department.
The ESGR applauds employers who practice personnel policies that support employee participation in the guard and reserves. At the same time, they inform and educate both service members and their civilian employers regarding their rights and responsibilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
According to Spafford, the ESGR utilizes trained ombudsmen who provide information, consultation and mediation about USERRA compliance. He said ESGR volunteers, ranging from business executives, senior government representatives, educators and military personnel, enable ESGR to educate employers, large and small, in cities, towns and rural areas.
Spafford said the USERRA is a federal law that establishes rights and responsibilities for members of the guard and reserves and their civilian employers. USERRA affects employment, reemployment and retention in employment when employees serve in the uniformed services.
He said Congress provided the statutory authority for investigating alleged violations of the USERRA to the U.S. Department of Labor. If DOL finds that an employer has likely violated USERRA, DOL may refer the case to the U.S. Department of Justice or Office of Special Council for legal action against the employer.
According to Spafford, ESGR doesn’t enforce USERRA but serves as a neutral, free resource for employers and service members. He said this law applies to all public and private employers in the U.S. to include federal, state, territory and local governments, regardless of size.
He said providing that the service member met all criteria, employers must provide the following: prompt job reinstatement; accumulation of seniority, including pension plan benefits; reinstatement of health insurance; training and retraining of job skills, including accommodations for the disabled; and protection against discrimination.
An employer cannot deny initial employment, reemployment, retention of employment, promotion or any benefit of employment to an individual on the basis of his or her military service. Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because they have taken action to enforce protection afforded any person under USERRA, testified or otherwise made a statement in or in connection with a proceeding under USERRA, assisted or participated in a USERRA investigation or exercised a right provided for by USERRA, Spafford said.
Under the act, he said an employer need not actually employ an individual to be his or her “employer” if initial employment was denied on the basis of their military affiliation, application for membership, performance of service or obligation for service in the uniformed services.
For example, he said if the individual has been denied initial employment because of his or her obligations as a member of the guard or reserve, the company or entity denying employment is an employer for purposes of USERRA. He said similarly, if an entity withdraws an offer of employment because the individual is called upon to fulfill an obligation in the uniformed services, the entity withdrawing the employment offer is an employer for purposes of USERRA.
In general, Spafford said if the employee has been absent from a position of civilian employment by reason of service in the uniformed services, he or she will be eligible for reemployment under USERRA. He said they must meet the following criteria: the employer had advance notice of the employee’s military obligation; the employee has been away from this employer five years or less due to military obligations; the employee returns to work in a timely manner as defined under USERRA; and the employee hasn’t been separated from uniformed services with a disqualifying discharge or under other than honorable conditions.
He said to be eligible for protection under USERRA, the service member must report back to work or apply for employment within the following guidelines. If they have one to 30 days of service, they must report the next scheduled work day after safe travel and eight hours rest. If they have 31 to 180 days of service, they must apply within 14 days after completion of service. If they have more than 181 days of service, they must apply within 90 days after completion of service.
According to Spafford, an application for reemployment need not follow any particular format. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. He said the application should indicate that the employee is returning from service in the uniformed services and that he or she seeks reemployment with the pre-service employer. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested.
He said an employee is required is to submit documentation to the employer in connection with the application for reemployment if their period of service exceeds 30 days and if requested by the employer to do so. If the employee submits the application for reemployment after completion of a period of service more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that the reemployment application is timely; the employee has not exceeded the total time limit, currently five years, on the duration of service; and the employee’s separation or dismissal from service wasn’t disqualifying.
Spafford said that reemployment rights are terminated if the employee is: separated from uniformed services with a dishonorable or bad conduct discharge; separated from uniformed services under other than honorable conditions, as characterized by regulations of the uniformed services; a commissioned officer dismissed by sentence of general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the president; or a commissioned officer dropped from the rolls due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or, a sentence to confinement in a federal or state penitentiary or correctional institution.
According to him, the employer must promptly reemploy the employee when he or she returns from a period of service if the employee meets USERRA’s eligibility criteria. He said “prompt reemployment” means as soon as practical under the circumstances of each case. Absent unusual circumstances, he said reemployment must occur within two weeks of the employee’s application for reemployment.
For example, Spafford said that prompt reinstatement after weekend guard duty generally means the next regularly scheduled working day. On the other hand, he said prompt reinstatement after several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee’s position.
As a general rule, he said the employee is entitled to reemployment in the job position that he or she would have attained within reasonable certainty if not for the absence due to military service. If not for the period of military service, the employee could have been promoted due to intervening events. As a result, he said the employee is required to be reemployed in a position that reflects the pay, benefits, seniority and other job perks that he or she would have attained if not for the period of service.
Further, Spafford said that the reemployment position must include the seniority, status and rate of pay that an employee would have ordinarily attained in the position given his or her job history, including prospects for future earnings and advancement. He said the employer must determine the seniority rights, status and rate of pay as though the employee had been continuously employed during the period of service.
According to him, the seniority rights, status and pay of employment position include those established (or changed) by a collective bargaining agreement, employer policy or employment practice. In particular, he said the employee’s status in the reemployment position could include opportunities for advancement, general working conditions, job location, shift assignment, rank responsibility and geographical location. If an opportunity for promotion or eligibility for promotion that the employee missed during the service is based on a skills test or examination, then the employer should give him or her reasonable time to adjust to the employment position and then give a skills test or examination.
He said that an employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee intends to leave the employment position to perform military services. If the employee has more than one employer, each employer must be informed of the impending leave of absence due to military service.
USERRA regulations provide than an “appropriate officer” can give notice on the employee’s behalf. An “appropriate officer” is a commissioned, warrant or non-commissioned officer authorized to give such notice by the military branch concerned. The employee’s notice to the employer may be either verbal or written. The notice may be informal and doesn’t need to follow any particular format.
Spafford said that although USERRA doesn’t state how far in advance notice must be given to the employer, an employee should provide notice as far in advance as reasonable under the circumstances. He said the defense department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”
He said the employee isn’t required to ask for or get his or her employer’s permission to leave to perform military services. He said the employee is only required to give the employer notice of his or her pending service. When the employee leaves the employment position to begin a period of service, he said he or she is not required to tell the civilian employer that they intend to seek reemployment after completing the uniformed service.
According to Spafford, even if the employee tells the employer before entering or completing uniformed service that he or she doesn’t intend to seek reemployment afterward, the employee doesn’t forfeit the right to reemployment. He said the employee isn’t required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service.
He said in general, the employee may perform uniformed services for a cumulative period of up to five years, under the current statute, and retain reemployment rights with the employer. He said the employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. In this status, he said the employee is entitled to the non-security rights and benefits generally provided by the employer to other employees with similar seniority, status and pay that are on furlough or leave of absence.
He said this entitlement isn’t dependent on how the employer characterizes the employee’s status during a period of service. For example, he said if the employer characterizes the employee as “terminated” while performing military service, this cannot be used to avoid USERRA’s requirement that the employee be deemed on furlough or leave of absence, and therefore entitled to the non-security rights and benefits generally provided to employees on furlough or leave of absence.
He said that if an employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time. He said when the employee is performing military service, he or she is entitled to continuing coverage (and dependents if the plan offers dependent coverage) under a health plan provided in connection with the employment.
The plan must allow the employee to elect to continue coverage for a period of time that is the lesser of the 24-month period beginning on the date on which the employee’s absence for the purpose of performing service begins, or, the period beginning on the date on which the employee’s absence for the purpose of performing service begins, and ending on the date on which he or she fails to return from service or apply for a position of reemployment.
Spafford said USERRA doesn’t require the employer to establish a health plan if there is no health plan coverage in connection with the employment, or, where there is a plan, to provide any particular type of coverage. In addition, the USERRA doesn’t require the employer to permit the employee to initiate new health plan coverage at the beginning of a period of service if he or she didn’t previously have such coverage.
In the event a conflict arises that an employee and employer are unable to resolve, Spafford said the ESGR’s trained ombudsmen can provide informal mediation. If the service member or employer chooses to open a formal investigation regarding a USERRA violation, they may do so by contacting the DOL. He said the ESGR ombudsmen are mutual parties in resolving disputes between civilian employers and their employees serving in the uniformed services, and they work toward resolving issues to the satisfaction of all parties.
Commissioner Mark B. McCracken the service men and women of the guard and reserves have made commitments to civilians. He said these individuals need that same commitment back when they return to civilian life after a period of service.
Commissioner John A. Sobel said these individuals are facing the stress of returning to civilian life and don’t need the additional stress concerning retaining pervious employment or finding new employment. He said the commissioners supported the uniformed service men and women and encouraged local businesses to employ them.
Spafford said employers should consider employing service men and women of the guard and reserves because they bring a global perspective, are on-time, all the time, have a first-class image, remain calm under pressure, bring a can-do attitude, have physical conditioning, possess mission-critical skills and they’re responsible and professional.