Employment and Military Service: Job Protection for Those Who Protect Us

Last updated Sept. 29, 2017.

Serving our country in the armed forces demands a level of bravery and self-sacrifice that should be honored and rewarded. For that reason, both federal and New Jersey law provide members of the military certain protections in their civilian employment against discrimination due to their military status.

This post will discuss federal protection, what reemployment means, and how our veterans are protected by New Jersey law.

Federal Protection for Military Members under USERRA

The Uniformed Services Employment and Re-employment Rights Act, 38 U.S.C.A. Sec. 4301 et seq., prohibits employers from discriminating against workers for past, present, or future military service.

Generally, anyone who serves, whether voluntarily or no, in the “uniformed services,” including the Army, Navy, Air Force, Marines, Coast Guard, and Army/Air National Guard (state-funded National Guard service, however, is exempt). Reservists are also covered. Further, USERRA applies even if you are a part-time or probationary employee.

Broadly speaking, USERRA makes it illegal for employers to refuse to hire, refuse to re-employ, fire, or otherwise deny a job benefit to a worker due to their military service. USERRA also prohibits employers from retaliating against workers for exercising their USERRA rights, or for assisting in a USERRA investigation.

The Right to Military Leave and Right to Reemployment

Under USERRA, employers must grant up to five (5) years of leave to any worker who is absent from his or her job due to uniformed service. Please note, however, that employers aren’t required to grant paid leave.

USERRA is used most often to guarantee a service member’s reemployment following military leave. The law requires employers to promptly reinstate workers (often as quickly as within a few days) once they return from such leave.

In order to qualify for reinstatement, however, a worker must meet certain threshold requirements.

For instance:

• The worker must not have been dishonorably discharged from service.
• The worker must give the employer timely notice prior to taking military leave, and prior to returning to work. The requirements for such notice vary somewhat depending upon factors like the amount of leave taken.
• The worker’s cumulative military service must not exceed five (5) years for a single employer. USERRA generously allows workers to begin calculating this 5-year period fresh with each new employer.

What Does Reemployment Mean, Exactly?

Workers who have served 90 days or less must be reinstated to the same position they would have held had they not served, as long as they are qualified to perform it or “can become qualified after reasonable efforts of the employer.” Moreover, these workers are also entitled to the same pay and seniority they would have achieved had they not served.

Like the question of a “reasonable accommodation” under the Americans with Disabilities Act, the question of what are “reasonable efforts” under USERRA is a fact-specific inquiry. The general rule of thumb is that the employer is only required to make efforts that don’t cause an undue burden in terms of time and cost. A week or two of retraining, for example, is probably a reasonable effort toward job qualification. On the other hand, forcing the employer to hire a full-time assistant to bring the worker up to speed over many weeks would probably be considered unreasonable.

For workers who have served more than 90 days, the employer has a little more leeway, with USERRA demanding the worker be reinstated only to a position that is similar to his or her former position in status, seniority, and pay.

Either way, should the worker fail to qualify for his or her same or comparable position, despite the employer’s reasonable efforts, USERRA still demands that the employer retain the worker in a “lesser” position, whether in pay or otherwise.

Protections for Military Service under the LAD

Like USERRA, the New Jersey Law Against Discrimination (LAD) prohibits employers from taking adverse employment actions against workers because of their membership in the armed services. In particular, the LAD prohibits employers from discriminating or retaliating against workers for taking military leave when the employer grants leave to other workers for other purposes.

The LAD’s employment protections are more narrow than USERRA’s, in that the LAD allows employers to refuse to hire individuals who have received orders to report for active duty. However, in these cases, the protections of USERRA may still apply.

Navigating the ins and outs of USERRA/the LAD is a complicated task, made vastly more complicated when the worker in question has a disability or injury acquired during military service. If you need help determining your USERRA rights, call our office today for a free consultation.