W e have prepared this Alert to advise you Employee Rights and - PDF document

G Employment Law Alert May 2005 New Poster Requirement Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) By Martha L. Lester, Esq. and Kristen L. Laracca, Esq. W e have prepared this Alert to advise you Employee Rights and Benefits of a new law signed by President Bush Under USERRA that makes changes to the Uniformed Employees have the right to be re-employed in their civilian jobs if they leave that job to perform Services Employment and Reemployment Rights service in one of the uniformed services provided Act, known as USERRA, and its effect on all that the employee: a) ensures that his or her employers (in both the public and private sectors, as employer receives advance written or oral notice of well as federal employers). USERRA contains no the service; b) has five years or less of cumulative threshold or minimum size to limit its reach. service in the uniformed services while with that Accordingly, an employer with only one employee is particular employer; c) returns to work or applies covered for purposes of USERRA. for re-employment in a timely manner upon conclusion of service; and d) has not been Overview separated from the service with a disqualifying USERRA is a federal law that protects the re- discharge or under other less than honorable employment rights of employees who either conditions. voluntarily or involuntarily leave their positions to undertake military service. USERRA also prohibits USERRA provides that an individual may serve up to five years in the uniformed services, in employers from discriminating or retaliating against a single period of service or in cumulative periods an employee on the basis of past military service, totaling five years, and retain the right to re- current military obligations, or intent to join one of employment by his or her pre-service employer. the uniformed services. The law is intended to There are, however, specific exceptions to the five- encourage non-career uniformed service, such that year limit on uniformed service that allow an our country can enjoy the protection of these individual to serve longer than five years while services, lead by quality individuals, while working for a single employer and retain re- maintaining a balance with the needs of private and employment rights under USERRA. The public employers, who also rely on these same exceptions involve unusual service requirements, individuals. USERRA also is intended to minimize circumstances beyond the individual’s control, or the disadvantages to an individual that occur when service (voluntary or involuntary) under orders that person must be absent from his or her civilian issued pursuant to specific statutory authority or job to serve in the military. the authority of the President, Congress or a Service Secretary. This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only. L Roseland, New Jersey Telephone 973.597.2500 65 Livingston Avenue www.lowenstein.com 07068-1791 Fax 973.597.2400

G USERRA further provides service members the circumstances of its employees. For example, special protection from discharge from civilian the defense of changed circumstances is available employment after returning from uniformed where re-employment would require the creation service. If the individual served over 180 days of a “useless job or mandate reinstatement where before re-employment, he or she may not be there has been a reduction in the workforce that discharged from the employment position within reasonably would have included the veteran.” one year after re-employment, except for cause. If However, an employer cannot establish that it is the individual served between 31 and 180 days in unreasonable or impossible to reinstate the the military, he or she may not be discharged from returning service member solely by showing that no the employment position within 180 days after re- opening exists at the time of the re-employment employment, except for cause. A reinstated service application or that another person was hired to fill member whose duration of service lasted 30 days or the position vacated by the veteran, even if re- less has no similar protection from discharge. employing the service member would require Moreover, USERRA mandates that members of terminating the employment of the replacement the uniformed services, who conclude their tours of employee. duty and who are re-employed by their civilian Second, an employer also is not required to re- employers, receive all benefits of employment that employ a returning service member if such re- they would have obtained had they been employment would impose an undue hardship on continuously employed, such as entitlement to a the employer. This defense applies only where a leave under the Family and Medical Leave Act. person is not qualified for a position due to Employees, however, are not entitled to benefits disability or other bona fide reason, after reasonable that are considered a form of short-term efforts have been made by the employer to help the compensation, such as accrued paid vacation. person become qualified. Employer Defenses to a USERRA Claim The third statutory defense against re- USERRA provides three statutory defenses that employment requires the employer to establish that an employer may use to defend against a claim for “the employment from which the person leaves to USERRA benefits. The employer bears the burden serve in the uniformed services is for a brief, non- of proving any of these defenses. First, an employer recurrent period and there is no reasonable is not required to re-employ a returning service expectation that such employment will continue member if the employer’s circumstances have so indefinitely or for a significant period.” USERRA changed as to make such re-employment does not define “significant period.” For example, impossible or unreasonable. In view of USERRA’s under USERRA, a person holding a seasonal job remedial purposes, this exception is narrowly may have re-employment rights if there were a construed. The employer bears the burden of reasonable expectation that the job would be proving that changed circumstances make it available at the next season. impossible or unreasonable to re-employ the returning veteran. This change must be in the employer’s circumstances, as distinguished from

G New Edition Coming Soon New Posting Requirement for Employers As of March 10, 2005, all employers now are The new edition of “ The Practical Guide to required to post a new notice in the workplace Federal and New Jersey Employment Law: The advising employees of their rights and benefits Employers’ Resource,” Executive Editor, under USERRA. A copy of the new notice entitled Martha L. Lester, includes: “Your Rights Under USERRA” is included with � Federal Law Updates this Alert. This notice should be posted in a � Easy-to-Follow Index prominent place where employees customarily � New In-Depth Chapters check for such information. Instead of posting, the new law provides that employers may provide this The Guide , published in notice to employees in alternate ways in an effort to connection with the New Jersey minimize costs as long as the full text of the notice Business & Industry Association, is provided. Acceptable methods also include is the resource for New Jersey handing out the notice, mailing the notice, or employers seeking to comply with applicable federal and distributing the notice to employees via e-mail. state laws, regulations and procedures in the Compare the Conscientious Employee Protection employment-related area. It provides management with Act, known as CEPA, under which the employer is critical information concerning existing laws, emerging required to both “conspicuously” post notice of its trends, most frequently asked questions, and practical employees’ protections and obligations under tips on managing the workforce and workplace. CEPA, and to use other appropriate means to keep T o obtain your copy of the new edition of, “ A employees informed of those protections and Practical Guide to Federal and New Jersey obligations on an annual basis. Employment Law: The Employer’s Resource ,” please contact Karen Cerreto at 973.422.6466 or Cost permitting, we suggest that the better email kcerreto@lowenstein.com. course of action is to post the “Your Rights Under USERRA” notice in the prominent location where all other such notices, i.e. EEO and CEPA notices, are placed. The USERRA poster is now available at www.dol.gov/vets/programs/userra/poster.pdf. If you have any further questions about the issue discussed in this Alert or any other employment practices or compliance issues, please do not hesitate to call Martha L. Lester, Chair of the Employment Law Practice Group, or Kristen L. Laracca, a member of the Employment Law Practice Group, at (973) 597-2500.