When your Employees go to War


Presented by: Gerard Panaro, Esq.

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Between now and May, and even beyond, until 2006, hundreds of thousands of troops will be rotated out of and into Bosnia, Iraq, Afghanistan and Kuwait. Between 30 and 40% of these troops will be members of the National Guard and Reserve. There are over 1.2 million guardsmen and women in the civilian workforce, including banking and financial institutions. Of the approximately 130,000 U.S. troops in Iraq, about a fourth are reservists. When the troop rotations are over, the proportion of reservists will reach nearly 40 percent of the force. While news accounts focus on the 513 soldiers killed since the beginning of the war, a little-known fact is that as of January 25, 2004, over two thousand nine hundred soldiers have been wounded in Iraq. Many of these wounds are grievous: lost limbs, lost sight.

The employment, re-employment and benefits rights of these reservists are protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (as amended through 2001) (USERRA).

Like Title VII, USERRA prohibits discrimination against reservists in hiring, discipline, discharge and all other terms and conditions of employment. Like the ADA, it requires reasonable accommodation of soldiers who have been disabled by their military service.

However, unlike Title VII, which only applies to employers of 15 or more, USERRA applies to every single employer in the country, regardless of number of employees.

Here is one illustration of USERRA's potential impact: Does your employment application form ask about military service? If so, why? Can you provide a job-related business reason for asking the question? If not, and if an applicant who discloses his or her membership in a guard or reserve unit is not hired, you could be questioned about whether the failure to hire was due to the military service. For this reason (fear of not being hired or of being discriminated against on the job), sad to say, many members of the Guard and Reserves do not disclose their military affiliations.

Unlike the ADA, which permits an employer to dismiss an employee who cannot reasonably be accommodated, USERRA requires the employer to find that person another job, if he or she can't return to his or her original position. It must then place that employee "in any other position which is equivalent in seniority, status, and pay," or, "in a position which is the nearest approximation" to that position.

This can be a particularly important aspect of the law, with the number of soldiers returning from Iraq with severe injuries, including blindness, loss of limbs, and other impairments. If the service person is recovering from an injury sustained as a result of his or her military service, s/he has up to two additional years to apply for reinstatement to his or her job.

Moreover, a returning service person cannot be discharged from his or her job, except for cause, within either six months or one year after his or her return, depending on the person's length of military service.

If the service person is recovering from an injury sustained as a result of his or her military service, s/he has up to two additional years to apply for reinstatement to his or her job.

In addition to prohibiting discrimination against reservists, USERRA guarantees them upon return from military service the job they held when they left, requires that they receive the same level of benefits they would have received had they not entered military service, protects their group health benefits, and guarantees their pension contributions and benefits.

Given the huge numbers of employee-soldiers either returning from, or being called to, active duty; the months and years over which they will be returning to and leaving employment; and the stringent requirements and complexities of USERRA, if you have even one single employee who is a member of the National Guard or Reserve, it is prudent, patriotic and necessary that you be or become thoroughly acquainted with USERRA. This webinar will give you that knowledge.

About the Speaker: Gerard P. Panaro is a graduate of the Georgetown University Law Center, admitted in D.C. and Maryland, and holds a Ph.D. in philosophy from Boston College. He is Of Counsel in the Washington, DC offices of Howe & Hutton, Ltd., whose main office is in Chicago, with a third in St. Louis.

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This product was added to our catalog on Friday 05 March, 2004.

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