Perhaps now more than ever, it is important that employers fully understand the Uniformed Services Employment and Reemployment Rights Act ("USERRA") and the new amendments to the Family Medical Leave Act ("FMLA") and how they relate to their military employees' rights. But for many, navigating these regulations is still unknown territory.
If you ask any group of managers what special rights employees who serve in the military are entitled to, most will answer "military leave." If you ask them what other rights these employees have, some will also tell you that there are reinstatement rights for military service members, although most will be hard-pressed to say what they are. If you press further as to any additional rights military employees have, you will begin to face blank stares. If you then ask what rights are afforded to those employees with a parent, spouse or child in the military, many managers will either end the conversation or walk you over to the office of the human resources manager – if there is one. There you will often get the same answers as were coming from management.
The Problem
USERRA has been around now for almost 15 years. However, because this law provides rights only for employees who are members of the uniformed services - a very small percentage of the workforce - many employers have not had much reason to become familiar with its requirements other than the common, general understanding that USERRA provides for "military leave." However, USERRA provides for a great deal more. Although not nearly as well developed or understood, USERRA, in a number of ways, provides more robust employee rights against discrimination and harassment than Title VII of the Civil Rights Acts of 1964, as amended ("Title VII"). It also imposes stronger reasonable accommodation duties than the Americans with Disabilities Act ("ADA"). In addition, the FMLA has recently been expanded to provide leave rights for employees who have close family members in the military services - or who return wounded. As a result, employee rights in this arena have never been stronger or more significant.
Combine these robust rights with a surge in the number of employees they apply to and this previously sleepy arena of employment law is likely to wake up with a vengeance. With significant U.S. military withdrawals and reshuffling anticipated in the coming months and years, military service members will probably be returning to civilian life and to the workforce at a rate not seen since USERRA's enactment. This means that for many employers, the day draws increasingly near when they may find themselves grappling with, and needing to be fully responsive to, the panoply of rights that both uniformed service members, and now their close family members, enjoy. As with any employment law, it is beneficial to be fully prepared for that day when it comes. Indeed, those who are not prepared may find themselves in the unfortunate position of ultimately paying much more in litigation costs and/or judgments for failure to properly honor USERRA and FMLA rights.
Since the U.S. Supreme Court's Ellerth and Faragher decisions in 1998, most employers have adopted some form of policy prohibiting sexual and other types of harassment. Most also provide some form of training and education to their employees to reinforce the point that unlawful harassment will not be tolerated. Such policies and training have traditionally focused on the types of misconduct, such as sexual or racial harassment, that are prohibited by Title VII. Likewise, many employers have, since the ADA's enactment in 1990, adopted written policies affirming their commitment to making reasonable accommodations to their employees with disabilities. With few exceptions, however, the only written policy most employers have relating to the rights of employees in the uniformed services is a brief and general "Military Leave" policy. And, given that the U.S. Department of Labor has only just recently promulgated its rules defining military family members' rights under the FMLA, any FMLA policy drafted before November 2008 is now deficient and outdated.
How The Problem Happens
The pitfalls of employers' not having sufficiently managed these military rights, and/or failing to anticipate how they might play themselves out in the workplace, are demonstrated in Staub v. Proctor Hospital, 180 L.R.R.M. 2411, 2006 U.S. Dist, LEXIS 53114 (C.D.Il. 2006), a case that has now played itself out in the U.S. District Court for the Central District of Illinois. Staub was an angiography technologist for Proctor Hospital in Peoria, Illinois, from 1990 until 2004. He was also an Army reservist. Staub had a history during his employment of balking against the scheduling and assignment directives of his employer. He had once been terminated for refusing to work past the end of his shift, but he had grieved that decision and was reinstated under a last-chance agreement. In January 2004, Staub was written up for neglecting and failing to perform his own duties while undertaking to assist in another department. When caught in another incident where he again could not be located in his own department, Staub was terminated.
As an Army reservist, Staub had periodic Reserve commitments throughout the course of his employment at Proctor Hospital. Proctor Hospital had a USERRA policy specifically setting forth procedures for taking military leave. Nevertheless, in challenging his termination, Staub alleged that his direct supervisor in charge of scheduling had intentionally placed him on the schedule when she knew he had upcoming Reserve commitments. She always let him take leave, but did so in a manner to breed resentment among his coworkers - forcing Staub to find his own replacement, requesting volunteers to fill Staub's hours or simply assigning his hours to others, all presumably in a manner to cause inconvenience to Staub's coworkers on his account. This resentment, Staub alleged, ultimately led to a conspiracy among hospital staff to make Staub look bad because they did not like him and wanted him to be fired. On this mere conspiracy theory, bolstered by snippets of evidence showing resentment about the effect of his military reserve commitments on the schedule, Staub not only defeated Proctor Hospital's summary judgment motion but went on to win a jury verdict early in 2008.
The Staub decision poignantly demonstrates that any employer for whom scheduling and reliable attendance is a critical component of efficient and/or effective operations must carefully manage any USERRA and/or military FMLA issue. It is only human in such businesses for managers and staff alike to become frustrated with employees and coworkers who cannot be relied upon to honor a consistent schedule, which is likely to place burden and strain on others to cover for them. Yet, when such frustrations are expressed in a way that may be perceived as antagonistic to the rights of military employees, or even to military service or the military itself, this may become the fodder for costly, significant and difficult-to-defend employment litigation. Human resources should utilize up-to-date policies and effective training to deal with these human dynamics so they can be appropriately managed when they inevitably arise.
Avoiding The Problem
Staub is certainly not the only way military leave issues are likely to make their way into the courts over the coming years. As noted, USERRA rights, because they have not previously applied to that many employees, have not been much litigated. While there has been a good deal of litigation over the FMLA, the military leave amendments to the FMLA and the U.S. Department of Labor's ("USDOL") regulations relating to them are so new that family military leave issues have not yet made it to the courts. However, as uniformed service members make their way back into the workforce over the coming months and years, more and more of these issues will arise. Moreover, given the increasing number of veterans who have returned, or will return, with injuries and disabilities of various kinds, their medical issues will impact not only these military service members' own challenges in returning to the workforce, but could also impact their close family members who are already working. As a result, many employers are likely to have to grapple with the complex and often ill-defined and untested USERRA and FMLA provisions and regulations relating to reasonable accommodations, reinstatement rights and "qualifying exigencies."
So what is needed to get ahead of the likely rise in military leave issues?
- Review And Amend Policies
Military and family military leave policies should be crafted strategically and reviewed with a critical eye to ensure that they are complete and up-to-date with current regulations. As noted, most employers have little more than generic "Military Leave" policies and FMLA policies that mention nothing about the new provisions on leave rights for family of military. Cases like Staub illustrate that the old, generic "Military Leave" policy is insufficient. Written succinctly and without duplicating complex USERRA regulations, employers should consider drafting "Rights of Uniformed Service Members" policies that acknowledge and describe the full set of rights granted by USERRA and set up the internal mechanisms by which these rights may be pursued. Any such policy should also now cross-reference the employer's FMLA policy, which itself must now be amended to bring it up to speed with the military leave amendments to the FMLA and USDOL's new FMLA regulations, which became effective in January 2009. - Train Front-Line Management
Front-line managers, including any supervisor having responsibilities for scheduling, should be trained and educated on the full scope of rights provided to uniformed service members and their family members under USERRA, the amended FMLA, and any applicable state law. Lawsuits often happen based upon workplace interactions that in-house counsel and/or human resources personnel do not even find out about until it is too late. Ensuring that front-line supervisors understand the law and the rights of their employees well enough to at least become aware when they have an issue, and encouraging them to immediately seek help with such issues rather than handling or failing to handle them themselves, is critical to avoiding nightmare scenarios. - Equip Human Resources
Navigating the DOL's new regulations on the FMLA and the USERRA regulations to understand and translate their complexities into practical forms and procedures that fit any given workplace is a significant job. Yet, when faced with the practical issue of how to respond to employees seeking to assert the various rights USERRA and FMLA now afford to uniformed service members and their families, such forms and procedures are a necessity.
If managers come with problems and human resources professionals do not have fast, practical answers, or at least quick and ready access to the answers, those managers tend not to come back. Worse yet, managers who feel that human resources cannot help will often figure out a way to handle the issues themselves. As Staub demonstrates, this can be a recipe for disaster. To avoid this unhappy problem, human resources personnel themselves should be trained and educated on the new and powerful menu of rights that the combined USERRA and FMLA provide military employees and their family members. Human resources personnel may want to seek guidance and assistance from counsel in handling military and family military leave and reinstatement issues. Human resources managers should be realistically equipped to either get on the front line to handle these issues themselves or to closely, carefully and effectively direct front line management. Given the complexity of USERRA, FMLA and their regulations, however, they cannot realistically be required to do so without full consultation with appropriate legal support. - Anticipate And Deal With The Human
Factor
Finally, as Staub demonstrates, even when a military leave issue is confronted head on, the unintended effects and/or reactions of managers, coworkers or even human resources personnel dealing with it can create problems. Some of this is just human nature. Employers are much more likely to avoid these problems, however, if all employees are educated and sensitized to the issue. It may be critical for the workforce to understand not only the rights provided to military personnel and their family members, but also how the employer intends to honor those rights. The type of resentment and hostility that may lead to liability naturally arises when military leave issues are dealt with only "on the fly" or by managers and coworkers who do not understand how or why they need to make adjustments and who therefore have no prearranged systems for accommodating these issues. In contrast, where there is forethought in communicating and dealing with such issues, the probability of resentment and hostility is likely to be significantly diminished. Managing expectations is key. When everyone understands the nature of USERRA and FMLA rights for military personnel, such rights are more likely to be respected.
Conclusion
Be prepared. Both changes in U.S. foreign policy and new or revised laws and regulations will likely swell the ranks of employees asserting military employment rights. Those employers who stay ahead of these developments can successfully meet this challenge. Those who do not are likely to find themselves a part of increasing, costly and difficult-to-defend litigation.
Jon Zimring is a partner in Duane Morris' Employment & Immigration Practice Group.
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