SUPPORTING DEPLOYED EMPLOYEED
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By:
Atty. John M. (Jack) Collins
Public Safety Legal Advisor
Martha’s Vineyard
jackmcopa@aol.com
For a public safety executive, dealing with an employee called to military service can be both a legal compliance challenge and a leadership opportunity. The governing framework is the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is one of the most employee-protective federal laws. As opposed to some federal anti-discrimination laws, USERRA applies to all public employers, including both State and local police departments as well as sheriff’s offices. Up to 5 years of cumulative military service is protected.
Core legal obligations include:
- Allowing leave for military service (voluntary or involuntary) This is generally unpaid leave (unless local policy – or perhaps a union contract – provides otherwise)
- Continuing health insurance coverage
- No discrimination or retaliation based on service
- Mandatory reemployment upon return subject to the so-called “escalator position” (what they would have attained if they never left)
- Accrual of pension/seniority as if continuously employed
One thing to help assure a public safety executive complies with USERRA is to maintain the mindset that treats the employee as if they never left for purposes of seniority, benefits, and career advancement. Failing to do so has resulted in liability where employers pass over a deployed individual for promotion. Similarly, this happens when they are excluded from specialized units or training pipelines. Simply put, some executives unfortunately appear to treat military leave as a “burden.” This is an invitation for a lawsuit with unpleasant results. Under USERRA, military service -even being a “motivating factor” in adverse action – can trigger liability.
Mistakes sometimes happen when a service person returns. By now, employers should realize that they cannot bring back a returning veteran at a lower rank or less prestigious or lucrative assignment than they held before deploying. Ignoring promotional eligibility they would have earned is also not allowed. The law requires employers to restore specialty pay or certifications. When a deployed employee can show that he or she missed out on opportunities, be they assignments or promotions, courts take the so-called “escalator principle” very seriously.
A law enforcement executive is likely to face increased scrutiny from an arbitrator or court when an employee is disciplined or subjected to what might appear to be a pretextual internal investigation shortly after they return.
Policy Highly Recommended
USERRA-compliant policies in public safety agencies are designed to ensure that both sworn and civilian staff are not disadvantaged in their careers due to military service obligations. These policies generally adhere to federal law while often including provisions for differential pay or extended benefits specific to the municipality.
Having a comprehensive USERRA policy is essential to help assure the entire department is aware of the law and has an opportunity to “get on board” with a culture of support. Every agency should have a formal Military Leave / USERRA Policy that includes:
- Notice requirements
- Employees are required to provide advance written or verbal notice to their supervisor or Human Resources, unless military necessity prevents it.
- Employers must inform employees of their USERRA rights, typically by posting the VETS USERRA poster.
- Employer Support of the Guard and Reserve (ESGR)
- Offers a USERRA Employer Resource Guide, a “Frequently Asked Questions” guide, and checklists for mobilization/demobilization.
- DOL “Your Rights Under USERRA” Poster
- Employers must provide this notice, which can be done by posting it at the workplace.
- Non-Technical Guide to USERRA: A detailed, plain-language document available through the Department of Labor and VA for Vets.
- Activation Support
- Establishes a formal plan for activation exceeding 180 days, covering pre-deployment, deployment, and post-deployment.
- Communication
- Ensures deployed employees receive agency news, updates, and promotion opportunities.
- Benefits continuation
- Protection of Seniority, Status, and Pay: Returning employees are entitled to the seniority and benefits they would have attained had they not been absent (the “escalator principle”).
- Health and Pension Benefits: Employees may elect to continue health coverage for up to 24 months, and the period of service is treated as continuous service for pension purposes.
- Reemployment procedures
- Mandatory reemployment for up to five years of cumulative service, with specific deadlines for returning to work (ranging from 1 day to 90 days depending on the length of service).
- Provides that an employee returning from military leave will be reinstated without loss of seniority, status, or pay, returning to either their prior position or the position they would have attained.
- Training/requalification process
- Employers must make reasonable efforts to retrain or accommodate disabled veterans returning to work.
- Policies often ensure that required certifications are not lost due to military service.
- Medical Fitness Evaluations
- If an employee returns from a long deployment, departments may require a medical or psychological evaluation to ensure fitness for duty, but this must be handled in compliance with USERRA to avoid discrimination.
- Documentation:
- Requires a copy of the DD214 indicating honorable discharge prior to reemployment.
- Anti-retaliation language
- Employers cannot deny initial employment, reemployment, retention, or promotion based on military service
- Supervisor guidance
- Supervisors can comply with USERRA by familiarizing themselves with resources from the U.S. Department of Labor (DOL) and ESGR.mil, including checklists for mobilizing employees, training on reemployment rights, and mandates for continuing benefits.
- Optional
- Differential Pay: While not required by USERRA, some public safety agencies offer differential pay to make up the difference between an employee’s military pay and their regular pay. And some states have laws that provide additional benefits.
Demonstrations of support often require pre-deployment actions by agency executives and HR staff. A written acknowledgment of orders is a good opportunity to start. Letting the employee know what benefits will be continued for the individual and their family during their deployment as well as upon their return can go a long way to reducing anxiety and confusion. A positive message of farewell that encourages all personnel to extend their appreciation for the employee’s service to country helps set the right tone. And keeping in contact, where possible, with a deployed employee will demonstrate a supportive mindset. These should include keeping the person informed of promotional opportunities and any changes in the department. Obviously, insisting on having an absent employee do work while performing military service is out of the question.
Note: Leave rights may extend to employees caring for or supporting family members affected by military services under the Family and Medical Leave Act (FMLA). These protections may include:
- Qualifying Exigency Leave: Eligible employees may take leave for certain urgent needs arising from a family member’s military deployment.
- Military Caregiver Leave: Eligible employees may take extended leave to care for a covered service member with a serious injury or illness.
Preparations should be underway once an individual is scheduled to return to work. Questions about assignment, certifications, firearms qualification and any fitness for duty exams should be clear and defensible. Where feasible, providing refresher training and re-orientation might be offered to help ease the transition.
Depending on the length and nature of deployment, some returning vets may require supportive services in addition to those available through the VA. Many “wounds” are not visible but can be equally disabling. Before initiating discipline for perceived misconduct that took place prior to or upon return from deployment, consultation with legal and labor counsel is advised. The law does not require a department to lower its standards for discipline, but consideration may be warranted when indications of PTSD, domestic violence or substance abuse are present. Involving a department’s psychological services staff or outside consultant, as well as any available Employee Assistance Program (EAP), may help assure that many issues are addressed properly before becoming irrevocably problematic.
A public show of support from politicians and community leaders can also be helpful in establishing the right mind set that encourages all department members to go the extra mile in dealing with departing and returning service members. When vets are seen as an asset, brining a level of respect for discipline, training and teamwork, the entire organization benefits.