Wisconsin Lawyer
Vol. 79, No. 7, July 2006

Returning the Veteran to Work

Sidebar:

• Eligibility for Reemployment Rights after Military Service

by Jennifer S. Walther

ore than 500,000 members of the National Guard and reserves have been mobilized since President Bush declared a national emergency following the terrorist attacks of Sept. 11, 2001.¹ In Wisconsin, almost 2,400 members of the Wisconsin National Guard currently serve on active duty, mostly deployed overseas, and another 7,100 members are ready, fully trained and equipped, for immediate call-up.² As those serving in the military complete their tours of duty, they will be returning to civilian life and seeking employment. Given the large mobilization and anticipated return of veterans, the challenge of reemploying veterans may become a widespread issue for Wisconsin businesses and their attorneys.

Wisconsin employers have obligations under both Wisconsin and federal law to reemploy employees after they return from military service. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides employees with employment and reemployment rights after service in the U.S. Armed Forces or the National Guard.³ Effective in January 2006, the United States Department of Labor (DOL) for the first time issued final regulations implementing USERRA.⁴ In December 2001, Wisconsin passed a USERRA-type act that provides reemployment rights following National Guard service.⁵ In July 2005, Wisconsin also enacted new legislation providing reemployment rights for employees enlisted in or inducted into the U.S. Armed Forces,⁶ which differs from USERRA and Wisconsin's version of USERRA applicable to National Guard service. The employer must apply the provisions of state or federal law that are more favorable to the employee. Because state and federal law differ, the Wisconsin employee's reemployment rights will be determined by whether the employee is in the National Guard or the U.S. Armed Forces.

Employees engaged in military service have three types of protection: 1) protection from discrimination and retaliation; 2) reemployment rights; and 3) protection of employment benefits. An employer may have an affirmative defense to a discrimination claim if the employer can prove that it would have taken the same action even absent the military service. An employer may have affirmative defenses to a claim of failure to reemploy, if the employer can show that circumstances have so changed since the employee left employment to enter military service that reemployment is impossible or unreasonable, that reemployment would cause the employer undue hardship, or that the pre-service position was temporary.

Discrimination and Retaliation Protection

USERRA specifies that an employer cannot discriminate against an employee or applicant for employment because of service in the uniformed services. Employees also are protected under the Wisconsin Fair Employment Act (WFEA) from discrimination because of military service, but they are not provided this protection under the Wisconsin military reemployment laws.⁷ One court has found that USERRA's discrimination protections extend to claims for harassment, provided the employer's conduct was sufficiently pervasive to alter the employee's conditions of employment and create an abusive working environment.⁸

Both USERRA and Wisconsin's military reemployment laws prohibit retaliation if the individual exercises a right under the law, takes action to enforce a right (such as filing a complaint), testifies in an enforcement proceeding, or assists or participates in an investigation.

These laws apply to all employers, even those with only one employee. The DOL has specifically stated that supervisors are liable under USERRA. There is no explicit provision under Wisconsin's military reemployment laws for supervisory liability, and supervisors are not liable under the WFEA when acting within the scope of their authority.⁹

Burden of Proof

Under USERRA, the employee bears the burden to prove discrimination or retaliation. The standard is whether the military service was a "motivating factor" in the employer's action. Military discrimination cases that have arisen under the WFEA have not specified the employee's burden of proof. WFEA cases involving other forms of discrimination, however, adopt a "motivating factor" standard.¹⁰

The employer has an affirmative defense to a claim of discrimination or retaliation by proving that it would have taken the same action even absent the military service. For example, a veteran lost his USERRA claim against his former employer when the veteran's hours were reduced and he was ultimately terminated, because the employee could not prove that his military service was a motivating factor in the employer's decisions.¹¹ The employer, a formal wear business, proved that it would have reduced the employee's hours even absent his military leave because prom season was over and business was slow, and also proved that the termination decision was based on the employee's confrontation with his supervisor, not his military service.

Reemployment Rights after National Guard Service

Reemployment rights after service in the National Guard are identical under state and federal law, provided the employee meets the following eligibility criteria.

The employee must give advance notice to the employer of the need for leave, except in cases of military necessity. The U.S. Department of Defense recommends that notice should be given at least 30 days in advance of the leave. It is doubtful, however, that an employer could deny reemployment if notice was not given that far in advance. Permission to leave is not required, nor is the employee required to accommodate the employer's needs concerning timing, frequency, or duration of the leave.

The employee may perform military service for a cumulative period of up to five years with each employer and retain reemployment rights with that employer. The cumulative period means that the employee can go in and out of military service several times, as long as the total time served while working for one employer does not exceed five years. Absent limited exceptions to the five-year limit, the employee will not retain reemployment rights after the five years of military service. The employee must not have a disqualifying discharge from military service, such as a dishonorable discharge.

The employee is entitled to reemployment if he or she timely returns to work or applies for work. If the employee's military service was for less than 31 days, the employee must report to work no later than the next day following release from service (including reasonable travel time to get home plus an eight-hour rest period). If the employee's military service was more than 30 days but less than 181 days, the employee must submit an application for reemployment within 14 days of discharge from service. If the employee's military service was for more than 180 days, the employee must submit an application for reemployment within 90 days of discharge. If the employee is in the hospital for military service-related injuries, the employee must submit an application for reemployment on recovering, but no later than two years after the end of service. The employer must reemploy the employee "promptly," which means within two weeks, absent unusual circumstances.

The employee's application for reemployment can be written or verbal, but because the laws do not require a particular format, the employer cannot require a written application. The employer should document any verbal applications, however, so that there is no question about the timing of the request. The employee can give the application to the employer or to someone who has "apparent responsibility" to accept such applications. The employer should identify a specific named supervisor or manager, or a specific position, such as a human resources manager, who has responsibility to accept applications to avoid a claim that the employee applied to someone he or she mistakenly believed had actual responsibility. If the veteran does not contact the specific person that the employer has designated to receive the application for reeemployment, the veteran will be found to have failed to apply for his or her job.¹²

Upon employer request, the employee must submit documentation showing the timing and duration of military service and the conditions of discharge, so that the employer can determine whether the employee satisfies the conditions for reemployment. The employer cannot delay reemployment, however, if such documents do not exist or are not readily available.

If the employee does not report to or apply for work within the time frames noted above, the employee becomes subject to the employer's conduct rules regarding an absence from scheduled work. Thus, an employer should have a no call/no show policy that can be applied to the veteran's failure to report to work on time after discharge from military service, or the employer should add a provision to its military leave policy stating that a failure to timely report to work on discharge from military service will be cause for dismissal.

An employee whose military service lasted for more than 30 days but less than 181 days cannot be discharged, except for cause, within 180 days after return to work. An employee whose military service lasted for more than 180 days cannot be discharged, except for cause, within one year after reemployment. This restriction alters the normal at-will employment relationship in Wisconsin, which allows employers to terminate employees without cause.¹³ Under USERRA, cause may be based on the employee's conduct, but the employee must have had notice, express or implied, that the conduct would constitute cause for discharge. Cause also may be for "other legitimate nondiscriminatory reasons," which are identified as job elimination and layoff. It is not clear under USERRA whether these two reasons are the only legitimate reasons, or whether they are simply examples.

State agencies that will enforce the military reemployment laws also may adopt cause principles from other Wisconsin statutes. For example, Wis. Stat. section 62.13 defines "just cause" and places a substantial burden on an employer to justify the termination decision. When terminating employees, employers should be cognizant of just cause principles, which include conducting a fair investigation, ensuring that the employee had notice of the rules, considering whether other employees have been terminated for the same or a similar offense, and issuing discipline proportionate to the infraction.

Reemployment Rights after Service in the U.S. Armed Forces

Wisconsin's 2005 statute applicable to employees enlisted in or inducted into the U.S. Armed Forces provides greater protections than both USERRA and Wisconsin's version of USERRA for National Guard service. Reemployment rights following service in the U.S. Armed Forces differ from reemployment rights following National Guard service in the following ways.

An employee enlisting in the U.S. Armed Forces is not required to give the employer advance notice of the need for leave. The USERRA requirement for advance notice would not apply. Presumably an employer could request an employee entering service in the U.S. Armed Forces to voluntarily provide notice but could not deny reemployment if the employee failed or refused to give notice.

An employee returning from enlistment in the U.S. Armed Forces must return to work or apply for reemployment within 90 days of discharge from service, irrespective of the length of service. USERRA's shorter return requirements for service of less than 181 days would not apply.

If an employee is hospitalized for a military service-related injury, the employee has up to six months after release from the hospital to report to work. The USERRA requirement that the employee apply for reemployment on recovering from the injury would not apply. Another difference between the two laws is that USERRA requires a hospitalized employee to apply for reemployment no later than two years after the end of service, whereas the Wisconsin reemployment law applicable to service in the U.S. Armed Forces contains no such time limit. Because the Wisconsin reemployment law is more favorable than USERRA regarding release from hospitalization, Wisconsin law will govern.

An employee returning from enlistment in the U.S. Armed Forces is protected from discharge without cause for one year, irrespective of the length of the leave. USERRA's shorter cause protections for shorter service periods would not apply.

USERRA is more generous than the Wisconsin reemployment law applicable to service in the U.S. Armed Forces regarding length of service. Under USERRA, if the employee has been in military service for a cumulative period of up to five years, the employee retains reemployment rights, whereas Wisconsin's reemployment law provides a four-year service limit. Thus, USERRA's longer five-year period should govern.

The Reemployment Position

The employer must return the employee to a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that the employee would have attained if not for the military service. This position is known as the "escalator position." Employers are required to allow absent military reservists to make up any opportunities for lost overtime or training missed while on duty.¹⁴ The employer will be liable if the employee is reinstated with diminished job duties.¹⁵ Reemployment rights do not entitle an employee to be placed in a better position than if he or she had remained employed.

The employee must be qualified for the reemployment position, meaning the employee is able to perform the job's essential functions. The employer must make reasonable efforts to assist the employee to become qualified. This is a similar concept to the reasonable accommodation requirement under the Americans with Disabilities Act (ADA),¹⁶ and courts may borrow from the ADA to interpret the requirements of USERRA. Courts have found the following employer actions to be reasonable under the ADA: modifying work schedules¹⁷; reallocating job responsibilities¹⁸; providing training¹⁹; and providing career counseling.²⁰ An employer is not required to hire a full-time assistant,²¹ to create a new position,²² or to allow the employee to work at home.²³ Thus, an employer returning a veteran to work may have to modify a job or provide training if doing so would allow the veteran to perform the job's essential functions.

Employers also need to comply with the ADA and the WFEA when returning a disabled veteran to work, by accommodating the veteran's disability to allow him or her to work. Employers covered by either the federal or state Family and Medical Leave Act (FMLA) also need to comply with the FMLA and provide the veteran time off work for a serious health condition.

Employers' Affirmative Defenses

An employer can assert several affirmative defenses to a claim for reemployment, but the employer must prove that the defense is applicable. The employer can attempt to show that circumstances have changed since the employee's leave of absence began so as to make reemployment impossible or unreasonable. For example, to establish this defense, an employer may have to show that it was necessary to reduce the workforce or discontinue some particular department or activity. The employer cannot deny the veteran reemployment simply because the employer would have to displace an employee who had filled the position during the veteran's absence.²⁴

The employer can assert that assisting the veteran to become qualified for the position would pose an undue hardship. To prove undue hardship, the employer must show significant difficulty or expense, when considered in light of the cost of the action needed to help the veteran to qualify for the position and the employer's size and overall financial resources. The undue hardship defense has been used under the ADA, and courts may borrow from the ADA to further define the parameters of this defense under USERRA. For example, courts have found undue hardship under the ADA when an employer had to hire another employee to assist the disabled employee,²⁵ but not when an employer had to deviate from its own policy to transfer the employee to another position for which the employee was qualified.²⁶ According to the Seventh Circuit Court of Appeals, the cost of the accommodation to the employer should not be disproportionate to its benefit to the employee.²⁷ The ADA cases illustrate that employers attempting to assert an undue hardship defense under USERRA should be prepared to establish an action's excessive expense, not merely its inconvenience.

An employer also can attempt to prove that the employee's original position was for only a brief, nonrecurrent period, and that the employee had no reasonable expectation of continued employment.

Benefits

Upon reemployment, the employee is entitled to the seniority and the seniority-based benefits that the employee would have had if the employment had not been interrupted by the military service. For example, an employee is entitled under state and federal FMLA to the amount of leave for which he or she would have been eligible had he or she not taken military leave. The employee is not entitled to any benefit to which he or she would not otherwise be entitled if he or she had remained employed.

The employee also is entitled to receive all benefits not determined by seniority that the employer provides to other employees who are on a leave of absence. USERRA provides that vacation accrual generally is considered a nonseniority benefit that must be provided to an employee only if it is provided to other employees on a leave of absence. Demonstrating the importance of following this provision, the U.S. Department of Justice recently filed a class action lawsuit against American Airlines for violation of USERRA, alleging that the airline reduced the employment benefits (including vacation accrual) of pilots who had taken military leave while not reducing the same benefits for pilots who had taken comparable types of nonmilitary leave.²⁸

The employee is entitled to continuation of health insurance benefits during the military service. Under USERRA, the continuation coverage lasts for the lesser of 24 months from the date of the employee's absence for military service, or the date when the employee is required to return to work. Wisconsin's version of USERRA provides for continuation coverage for only 18 months since the employee's absence began, so the more favorable periods under USERRA mentioned above would govern.

USERRA requires an employer to adopt reasonable requirements for the selection of continuation coverage. USERRA allows, but does not require, an employer to use procedures governed by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). It may be administratively more efficient for an employer to use its preexisting COBRA procedures. Further, employers who use COBRA compliant rules regarding the employee's election of and payment for continuing coverage can specify a shorter period of time within which the employee must make his or her election and pay for the coverage than if the employer does not use the COBRA rules.

The employee is entitled to protection of his or her pension plan benefits. Military service is not considered to be a break in employment for purposes of participation, vesting, and accrual of benefits in a pension plan. The employer is required to fund the pension plan to provide benefits that are attributable to the employee's military service, but the employer is not required to make its contribution until the employee is reemployed. For plans to which the employee is not required or permitted to contribute, the employer has the later of 90 days after the employee's return to work or the normal contribution date to make the contribution. If the employee is enrolled in a contributory plan and does not make contributions during the military service, he or she is allowed (but not required) to make up missed contributions during a period beginning with the date of reemployment and continuing for up to three times the length of the military service, not to exceed five years. If the employee does not contribute, he or she is not entitled to any employer match. Employer contributions that are contingent on the employee's make-up contributions must be made according to the plan's requirements for employer matching contributions.

Enforcement

Under Wisconsin law, an employee returning from service in the U.S. Armed Forces may petition the circuit court to require his or her employer to comply with the law. An employee returning from service in the National Guard may file a complaint with the adjutant general or the Wisconsin Department of Workforce Development (DWD). The adjutant general will attempt to settle the matter, and the DWD will process the complaint using the same procedures it uses to process discrimination complaints under the WFEA. For a violation of USERRA, an employee may make complaints to the DOL. The DOL will investigate and attempt to resolve the complaint. The employee also may file a private legal action in a federal district court.

If a violation is found, remedies include lost wages and benefits. Under USERRA and the Wisconsin reemployment act applicable to National Guard service, if the violation is willful, the damage award may be doubled. Courts, borrowing from the definition of "willful" under the Age Discrimination in Employment Act,²⁹ have construed willful to mean that the employer has engaged in conduct with the knowledge that the conduct is prohibited or with reckless disregard of the fact that the conduct is prohibited.³⁰

Conclusion

An employee returning from military service has the right to reemployment with his or her pre-service employer, provided the employee satisfies the eligibility criteria. The employee also has the right to seniority and other benefits to which the employee would have been entitled had the employee not been on the military leave. The employer may not have to comply with the reemployment laws if circumstances have so changed that to comply would be impossible or unreasonable or would cause the employer an undue hardship. Wisconsin employers need to be aware of the various state and federal provisions for reemployment when an employee returns from military service, and of which rule applies in which circumstance, to ensure compliance and to avoid liability.

Endnotes

¹Department of Labor supplementary information to 20 C.F.R. pt. 1002.

²Homeland Defense Update, Wisconsin Department of Military Affairs, May 7, 2006.

³38 U.S.C. 4301, et seq.

⁴20 C.F.R. pt. 1002.

⁵Wis. Stat. § 21.80.

⁶Wis. Stat. § 21.79.

⁷Wis. Stat. § 111.321.

⁸Vickers v. City of Memphis, 368 F. Supp. 2d (W.D. Tenn. 2005).

⁹Powell v. Salter (LIRC, 07/11/97).

¹⁰See, e.g., Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

¹¹Clune v. Desmond's Formal Wear Inc., No. 2:01-CV-606, 2003 WL 21796388 (N.D. Ind. Feb. 4, 2003) (unpublished disposition).

¹²McGuire v. United Parcel Serv., 152 F.3d 673 (7th Cir. 1998).

¹³Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983).

¹⁴Rogers v. City of San Antonio, 211 F. Supp. 2d 829 (W.D. Tex. 2002).

¹⁵Duarte v. Agilent Techs. Inc., 366 F. Supp. 2d 1039 (D.C. Colo. 2005).

¹⁶42 U.S.C. §§ 12101-12213.

¹⁷Id.

¹⁸Norman v. University of Pittsburgh, No. Civ. A. 00-1655, 2002 WL 32194730 (W.D. Pa. Sept. 17, 2002).

¹⁹Schmidt v. Methodist Hosp., 89 F.3d 342 (7th Cir. 1996).

²⁰Robinson v. Neodata Servs., 94 F.3d 499 (8th Cir. 1996).

²¹Henry v. Unified Sch. Dist. #503, 328 F. Supp. 2d 1130 (D. Kan. 2004).

²²Office of the Architect v. Office of Compliance, 361 F.3d 633 (Fed. Cir. 2004).

²³Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538 (7th Cir. 1995).

²⁴Nichols v. Department of Veterans Affairs, 11 F.3d 160 (Fed. Cir. 1993).

²⁵Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155 (D. Mass. 2004).

²⁶ Office of the Architect, 361 F.3d 633.

²⁷ Vande Zande, 44 F.3d 538.

²⁸ Woodall, McMahon & Madison v. American Airlines, No. 3-06CV-0072M (N.D. Tex. Jan. 12, 2006).

²⁹29 U.S.C. 621, et seq.

³⁰ Duarte, 366 F. Supp. 2d 1039.

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