Among the millions of Americans who are out of work are a
significant number of returning servicemen and women. There exist a
variety of laws and regulations that protect military personnel
jobs during service, on the one hand, and provide incentives to
employers to recruit servicemembers, on the other hand.
Specifically, the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) and the Family and Medical Leave Act
(FMLA) are the principal laws preserving employment, while federal
and state tax codes provide the economic incentives to add former
servicemembers to the payroll.
While an understanding of the rights afforded to servicemembers by
these statutes is essential, employing these individuals provides
much more than a sense of patriotism for employers. Specific tax
incentives exist (and more have been proposed) to get these
individuals back to work. Many possess unique skills and abilities
that would be an asset to any workforce. This article provides
simple guidance about the laws that employers need to be aware of
that impact the hiring of veterans and provide incentives for doing
so.
USERRA mandates that employees be given a leave of absence to serve
in the uniformed services and prohibits discrimination against
employees because of their service. USERRA applies to all public
and private employers regardless of size. This leave of absence can
be as long as five (5) years and there are specific pronouncements
on how the leave can be treated and what benefits the employee is
entitled to while on qualifying leave. After the employee's
period of service has ended, the employer has an obligation to
re-employ the individual in the same or similar position depending
on the length of the leave period.
USERRA has different notification requirements based on the
employee's length of service in the uniformed services. If an
employee's period of service was less than 31 days, the
employee must report to the employer no later than the beginning of
the first full regularly scheduled work period on the first full
calendar day following the completion of the period of service plus
eight hours. If an employee's period of service was for more
than 30 days but less than 181 days, the employee must submit an
application for reemployment no later than 14 days after completion
of the period of service. If an employee's period of service
was for more than 180 days, the employee must submit an application
for reemployment no later than 90 days after the completion of the
period of service. Each of these periods can be extended if
application within the time period is impossible or unreasonable
through no fault of the employee.
The FMLA also has a leave provision specifically designed to
protect injured servicemembers and their families. While employees
must have worked at least 1,250 hours during the preceding
twelve-month period, under USERRA, an employee returning from
fulfilling his or her National Guard or Reserve Military obligation
shall be credited with the hours of service that he or she would
have performed (based on pre-service work schedule) but for the
period of military service to meet this requirement.
Military Caregiver leave or Covered Servicemember leave permits a
"spouse, son, daughter, parent, or next of kin" to take
up to 26 workweeks of unpaid leave during a rolling twelve-month
period to care for a injured member of the Armed Forces, National
Guard, or Reserves. A covered servicemember also includes a veteran
"who is undergoing medical treatment, recuperation, or therapy
for a serious injury or illness" if the veteran was a member
of the armed services at any time in the five years preceding the
medical treatment. The 12-month period to be used for purposes of
tracking this leave entitlement begins when the employee starts
using his or her leave. Therefore, it is possible that the 12-month
period utilized for tracking other forms of FMLA leave may not be
the same as what is being utilized for tracking this
entitlement.
Importantly, an employee is not entitled to more than 26 total
weeks of FMLA leave including Military Caregiver leave, during the
12-month period that commences with the need for leave. Therefore,
an employee is not entitled to 26 weeks of leave to care for a
family member under this provision, plus an additional 12 weeks of
leave for other FMLA-qualifying reasons. Employees may utilize the
26-week entitlement for each servicemember and for each illness or
injury incurred. An employee may take 26 weeks of leave in
consecutive 12-month periods for family members covered by this
provision.
With respect to tax incentives, currently the Work Opportunity Tax
Credit Program provides up to a $2,400 credit if the hired veteran
is 1) a member of a family that has received Food Stamps for at
least 3 consecutive months in the 15 months prior to the date of
hire; or 2) a person with a disability who is participating in a
vocational rehabilitation program through US Veteran's
Administration. The aforementioned credit increases to $4800 for
disabled veterans who were 1) hired within one year of having been
discharged, or released from active duty, or 2) unemployed for any
six of the last 12 months. President Barack Obama also recently
proposed a $2,400 tax credit for hiring an unemployed veteran and
$4,800 for hiring a veteran who has been unemployed for six months
or longer. The existing tax credit for hiring veterans with a
service-connected disability would also be raised to $9,600.
Many federal and state programs are also available for these men
and women to receive training and be reintegrated into the
workforce. Several resources, including Employer Support of the
Guard and Reserve (www.esgr.org) and the Department of Labor's
VETS Program (http://www.dol.gov/vets/), provide services to
servicemembers and employers to assist in these efforts.
In short, an employer in today's job market has both an
obligation to reemploy or hold a position for servicemembers and an
incentive to provide this group with employment opportunities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.