Legislation to Improve Servicemembers Protections Introduced in Congress
Last week Senator Richard Blumenthal (D-Conn.) introduced the Justice for Servicemembers Act, a bill that would improve the protections that were already supposed to have been given to individuals who leave their civilian jobs temporarily to perform active duty military service. The bill is in response to employers who have found a loophole in the original Uniformed Services Employment and Re-employment Act (USERRA) that was passed in 1994.
The original USERRA legislation was supposed to guarantee that a person who goes on active military duty has the right to return to his or job under the following conditions:
- The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:
- The person must have been absent from a civilian job on account of service in the uniformed services;
- The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
- The cumulative period of military service with that employer must not have exceeded five years;
- The person must not have been released from service under dishonorable or other punitive conditions; and
- The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
According to the 1994 law in brief, USERRA protects civilian job rights and benefits for veterans and members of Reserve components.
It establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years, with certain exceptions.
It provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.
USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority.
Health and pension plan coverage for service members is provided for by USERRA.
However, many employers have taken advantage of an apparent loophole in the law by claiming the law was voluntary and that returning servicemembers could be forced into arbitration, thus denying them the opportunity to take an employer that refused to reinstate them under the terms of the USERRA law to court. At least two federal courts have ruled that Congress was not clear about the enforceability of the law.
This new legislation aims to clarify the original law and make it clear that returning servicemembers can be forced into arbitration. Currently the Senate version of the bill, S. 3402 has only Democratic sponsors, but past legislation dealing with servicemembers employment issues have been bi-partisan and the same is expected this time.
The House version of the bill is H.R 5426 and it has an equal number of Republican and Democratic sponsors. However, major corporations and the U.S. Chamber of Commerce are opposed to the legislation and a difficult fight is expected in trying to gain passage.
TREA Legislative Director Larry Madison helped lead the effort to gain support for the legislation from 30 different military and veterans groups. The letter of support was presented at a press conference given by Senator Blumenthal last Wednesday.
More detailed information about the current USERRA law can be found at: http://webapps.dol.gov/elaws/vets/userra/empent.asp.