February 2010
Is Your Workforce Compliant with the 2008 Veterans' Benefits Improvement Act (VBIA)?
by Katherine Martinez-Vitela, Esq.
EPS Consultant • San Antonio, TX
kmartinez@EPSpros.com
Veteran Victoria was a member of the National Guard who was called to active duty in Iraq in January 2006. At the time, she only had been employed for three months by your company, a restaurant supply company, as a Shift Supervisor. Veteran Victoria returned from service in Iraq in 2009 to recover from a serious injury to her right leg. She calls Human Resources to notify the Director that she has recovered from her injury, has been honorably discharged from the military, and is now ready to return to work. However, during Veteran Victoria’s absence while serving in the military, your company has laid off 25 percent of its workforce due to the economic downturn and no longer has Shift Supervisor positions—only three filled Warehouse Manager positions. What are the Company’s legal obligations under VBIA?
The Veterans’ Benefits Improvement Act (VBIA) of 2008 expands the employment protections provided under the Uniform Services Employment and Re-employment Rights Act (USERRA) of 1994. The purpose of USERRA is to:
- prohibit discrimination against persons because of their service in the uniformed services, including the Armed Forces Reserve, the National Guard, or other uniformed services;
- prohibit an employer from denying any benefit of employment on the basis of an individual’s “membership, application for membership, performance of service, application for service, or obligation” for service in the uniformed services; and
- protect the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training. 38 U.S.C. Section 4301, et. seq.
To comply with USERRA and VBIA, employers must:
- release employees for covered military service;
- may not discriminate in promotions, retention, re-employment, or other benefits on the basis of the employee’s prior service, current obligations, for intent to join a uniformed service;
- may not retaliate if the service member seeks to enforce his/her USERRA rights;
- place employee where s/he would have been absent the military service leave, i.e., the “escalator principle.” However, employers are not required to pay the service member for time away from work while performing military service.
The service member may choose to continue health plan coverage. If the employee’s military service absence from work is less than 31 days, the employer may charge only the employee’s share of the cost. However, if the service is 31 days or more, the employer may charge the employee up to 102 percent of the entire premium, including the part that the employer typically pays.
Of course, the military service member must provide notice of pending military service to the employer, serve under honorable conditions while in the military, and re-apply for work in a timely manner.
The expanded protections of the 2008 VBIA clarifies that there is no statute of limitations on asserting USERRA claims. Moreover, the Department of Labor’s Veterans’ Employment and Training Service (VETS), the agency which investigates USERRA complaints, is required to complete its investigations and notify the claimant of its findings within 90 days of receiving the complaint. If requested by the complainant, VETS must refer complaints to the Office of Special Counsel (OSC) or the Department of Justice (DOJ) within 60 days of the request. The OSC or DOJ then has 60 days to determine whether to provide legal representation to the employee and to notify the employee of its decision. VBIA imposes two new duties for the Department of Labor (DOL):
- must provide written notification of the complainant’s USERRA rights within five days of filing of a complaint being filed; and
- must provide a more detailed report to Congress on USERRA enforcement actions. Last, all Federal Agency Human Resources Personnel must receive training on USERRA and its expanded protections.
So what should the Company do regarding Veteran Victoria? She is ready to return to work after her honorable discharge, but the Company eliminated all Shift Supervisor positions. Under USERRA’s “elevator principle,” you must reemploy the service member when he or she returns from active duty for periods of not more than five years, unless to do so would cause an undue burden on the business, or the job no longer exists. Some circumstances could cause USERRA protection to extend beyond five years. Additionally, if the service member is no longer qualified, the employer must retrain.
Since her job no longer exists, do you need to reemploy? It depends. Would Veteran Victoria likely have been promoted into the Warehouse Manager position while on leave? If so, then the employer must retrain and re-employ Veteran Victoria as a Manager. If not, then the Company must place her in exactly the spot she would have been in had she not left the Company to serve in active duty. This legal requirement includes raises and promotions Veteran Victoria would have received during her military service. However, because her position has been eliminated company-wide, if the Company does not have positions of equivalent pay grade and rank that for Veteran Victoria would have otherwise qualified for, it may be precluded from re-employing her. Nonetheless, the spirit and purpose of USERRA and VBIA encourage re-employment for all returning Veterans and all efforts should be made to find suitable positions for our service men and women upon reentry to civilian employment.
About the Author
Katherine Martinez-Vitela, Esq. is a Consultant with EPS, joining the company after practicing employment law for 15 years beginning with Matthews & Branscomb, San Antonio, Texas, and most recently with her own firm defending both private and public entities. Her practice included advising clients, drafting handbooks and policies, investigating employment related complaints and litigating employment lawsuits.
As a consultant, Katherine assists her clients with employment relations training, investigations of employee complaints and proactive HR consulting. Katherine's experience defending both private and public employers lends to her acute understanding of the unique issues that may arise in conducting investigations and enables her to address them efficiently with clients. Her litigation background further serves clients in training management and employees, conducting investigations and serving as an expert witness. Katherine provides these services in both English and Spanish.
Katherine graduated from the University of Texas at Austin and received her law degree from the University of Iowa College of Law, where she served as the Associate Editor of the Iowa Law Review and was recognized in Who’s Who Among American Law Students. Katherine joined EPS in 1999, and left to litigate a complex litigation case. Upon conclusion of the case, Katherine returned to EPS in 2007 and closed her private practice.