Janet's Conner

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Thursday, August 24, 2006


Another look at USERRA from columnist David Hendricks

My San Antonio dot com
By: David Hendricks
August 23, 2006

When military reservists or National Guardsmen finish an active-duty deployment, they are briefed about their rights under the Uniformed Employment and Reemployment Rights Act, or USERRA.

USERRA means that if they had to leave their job because they were called up, they should receive the same job and benefits from their previous employer as if they had never left.

Not receiving the same briefing are the EMPLOYERS, who sometimes are caught by surprise when Johnny comes marching home.

Some businesses find it more difficult than others to comply with USERRA.

Large companies usually can accomodate returning veterans because they have the flexibility to shift personnel.

Small companies, however, usually must fill the position vacated by a military reservist or National Guard member immediately. When veterans are released from military duty, small companies can least afford to rehire former employees.

If a company employs five people, for example, it may be financially painful to add a sixth when the veteran returns.

"The employer must say in normal conversation, 'I don't have an opening right now. Check back in two weeks,'" said labor employment law specialist Cynthia Benedict, a lawyer in the San Antonio office of Fulbright and Jaworski.

"No. That doesn't work with USERRA," Benedict said.

USERRA covers every business down to those with only one employee, she stressed.

Another difficult situation can arise, Benedict said, if a company operated a production department when an employee left for military service but it later outsourced or closed down production.

If the company found other jobs for some of the employees but not for others, what obligation does it have for the returning military veteran? "Always err on the side of the veteran," Benedict said. "That's how the courts would decide, and rightly so."

If veterans initially do not receive their jobs back, they can inform the U.S. Department of Labor, which usually will send a letter to the employer explaining the law. Federal prosecution or litigation can follow if the conflict continues.

Returning veterans should not lose seniority when it comes to promotions, pay raises and benefits, Benedict explained. The veterans are not entitled to accrued pay hikes or vacation days, but they should resume their jobs with the promotions, higher pay levels and number of vacation days they would have acquired had they not left for military service.

USERRA accounts for less than 10% of Benedicts caseload, she said, but cases come and go in cycles.

USERRA makes the all-volunteer military possible. Hardly anyone would sign up for the Reserves or Guard if their careers were put at risk.

Laws protecting jobs for military personnel date to the World War II era but were strengthened by Congress after the Vietnam War and again after the 1991 Gulf War. The latest version of USERRA was approved in 1994.

"My advise to employers is that if you know about a military situation, ask questions first" before making a mistake, Benedict said. "Employers need to be equally informed (as military personnel) about the law," she added.

Employment rights for returning military

The Uniformed Services Employment and Reemployment Rights Act gives those who need to be absent from their civilian employment to serve in uniformed services, including the Rerserves and National Guard, the right to reclaim their jobs held before deployment.

-Time frame: Military veterans have 14 days to apply for former jobs if deployment lasted 31 to 180 days, and 90 days if deployment lasted more than 180 days, to allow time with family. Employers must re-employ veterans 'as soon as reasonably possible.'

-Job protection: Jobs are protected for one year if military service interruption lasted more than 180 days, six months if less than 180 days. Veterans can still lose jobs 'for cause' at any time, but the job protection overrides Texas' 'employment at will' law.

-Benefits: Veterans must receive promotions and pay increases, as well as vacation and pension benefits, they normally would have received had seniority not been interrupted by military duty.

-Who's covered: Law applies to military personnel returning from overseas hostilities as well as National Guard assignments along U.S. borders and domestic disaster duty.

-It's the law: Employers refusing to hire qualified applicants because of their affiliation with military organizations or firing workers before military deployment violate federal law.

-Source: San Antonio office of Fulbright & Jaworski law firm


  • At 12:51 PM, Anonymous Anonymous said…

    The department of Labor is suppose to protect veterans and provide oppotunity if they have a job. Ther is something called affirmative action for veterans but Bush's Department of Labor Office of Federal Contract compliance program is different. Is the fox ,Office Federal Contract Compliance Program(OFCCP) watching the chicken coop? Before any industry does anything with 3% SBA, ask what has this industry implemented from the required content of affirmative action for veterans as outline in 41 CFR 60-250-44. Do you really think SBA and OFCCP are checking against the law?

    Let us go through a little drill. Working for large company doing business with government and comes under the requirements of Affirmative Action --CFR-- Code of Federal Regulations Pertaining to ESA; Title 41-- Public Contracts and Property Management; Chapter 60-- Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. Opportunity to participate in an execute training program and or participate in extra high potential future executive program were not offered to you but granted to other members of different protected classes . Many of the participants were coming to you for answers, but you were not chosen. You are considered a protected class. These opportunities are being denied to you and others in your protected class. You go to the department of labor and read the following.
    In order for these action-oriented programs to be
    effective, the contractor must ensure that they consist of more than
    following the same procedures which have previously produced inadequate
    results. Furthermore, a contractor must demonstrate that it has made
    good faith efforts to remove identified barriers, expand employment
    opportunities, and produce measurable results.
    (d) Internal audit and reporting system. The contractor must
    develop and implement an auditing system that periodically measures the
    effectiveness of its total affirmative action program. The actions
    listed below are key to a successful affirmative action program:
    (1) Monitor records of all personnel activity, including referrals,
    placements, transfers, promotions, terminations, and compensation, at
    all levels to ensure the nondiscriminatory policy is carried out;
    (2) Require internal reporting on a scheduled basis as to the
    degree to which equal employment opportunity and organizational
    objectives are attained;
    (3) Review report results with all levels of management; and
    (4) Advise top management of program effectiveness and submit
    recommendations to improve unsatisfactory performance.

    Then you read further

    Audit and reporting system. (1) The contractor shall design and
    implement an audit and reporting system that will:
    (i) Measure the effectiveness of the contractor's affirmative
    action program;
    (ii) Indicate any need for remedial action;
    (iii) Determine the degree to which the contractor's objectives
    have been attained;
    (iv) Determine whether known protected classes have had the opportunity to participate in all
    company sponsored educational, training, recreational and social
    activities; and
    (v) Measure the contractor's compliance with the affirmative action
    program's specific obligations.

    You file a complaint with the Department of Labor OFCCP.

    Here is what will happen – (1) Compliance review. A comprehensive analysis and evaluation of
    the hiring and employment practices of the contractor, the written
    affirmative action program, and the results of the affirmative action
    efforts undertaken by the contractor. A compliance review may proceed
    in three stages:
    (i) A desk audit of the written affirmative action program and
    supporting documentation to determine whether all elements required by
    the regulations in this part are included, whether the affirmative
    action program meets agency standards of reasonableness, and whether
    the affirmative action program and supporting documentation satisfy
    agency standards of acceptability. The desk audit is conducted at OFCCP

    There is just one major problem ---The checking for an audit and reporting system is not in the desk audit manual for veterans but in there for all other protected classes.

    The report would come back as being in compliant. Surprise Surprise! Congress will not investigate OFCCP because it would look bad for reelection. No one has the courage to question what questionable practices are going one. The industries could be creative if the employee asked about the absence of the audit and reporting system and say they have passed all audits and therefore it is not needed.

    We ask about ethics in business and government.

    If for the next ten years nothing happens or is implemented the large majority of veterans will be out of the work force, dead or homeless. What few are left can easily be denied opportunity with full government backing.

    Public Law (P.L.) 106-50, the Veteran Entrepreneurship Act (VEA) and Public Law 108-183, The Veterans Benefit Act (VBA) of 2003 are just feel good acts until the next terrorist bomb. Soldiers protect us, even though we will not protect you and your job when you come back. Who is on point? Not OFCCP.


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