Lexington, KY - 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 may affect 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 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 re-employment 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 re-employment 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 12-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 work weeks of unpaid leave during a rolling 12-month period to care for an 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 three 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 the U.S. Veteran's Administration. The aforementioned credit increases to $4,800 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 re-employ or hold a position for servicemembers and an incentive to provide this group with employment opportunities.
Drew Millar is a member of Dinsmore's Labor & Employment Department practicing out of the firm's Lexington office. Learn more about Drew at www.dinsmore.com/drew_millar.