Avoiding Employment Claims and Protecting Service Members

Employment claims in the United States grow every year as the workforce becomes older and more diversified. Another source of potential claims for the business person is the need for the employer to comply with federal law and applicable state law pertaining to protections for our military personnel as our military continues to call on the National Guard and Reserve.

The Uniformed Services Employment and Reemployment Rights Act, at 38 U.S.C. 4301-4333, provides comprehensive protections to military personnel called to active service. Failure to comply with the federal law will lead to civil liability for the employer, fines and the possible application of punitive damages. In addition to liability on the company, individual managers can be held liable in an individual capacity. The USERRA "imposes liability for violations upon 'any person * * * [who] * * * has control over employment opportunities' including 'a person * * * to whom the employer has delegated the performance of employment-related responsibilities.' 38 U.S.C. 4303(4)(A)(i). At least two courts have held that, based on this definition, individual supervisors may be liable under the Act."

Some business insurance may provide some level of protection. Directors and officers insurance and employment practices liability coverage may cover violations of the federal law, but that would depend upon your state law and the applicable endorsements and exclusions in the policies. Also, the act and its implementing regulations are little more than two years old, so challenges over coverage have yet to work their way through the court system. The best course is training and strict compliance by all employees and managers.

Under the USERRA military personnel are entitled to the following protections:

• No discrimination based on military service.
• Entitlement to a return to the same position they had prior to service AND escalation in pay in benefits as if they had never left.
• The same benefits as any other employee taking a leave of absence.
• All seniority and benefits as if the employee had not left.
• Medical benefits at regular rates if the service is less then 30 days and at COBRA rates if longer.

Finally, six states: New York, Illinois, Indiana, Maine, Minnesota, and Nebraska; have passed individual state laws protecting service members.

Compliance with the law is easy. The Department of Labor has an excellent website with materials, videos and faqs addressing the statute. Remember our service men and women this holiday season and make compliance in your company an obligation.