Employer Obligations Under the Uniformed Services Employment and Reemployment Rights Act (USERRA)

Last week, President Obama announced the end of combat operations in Iraq. Although most of the 65,000 Americans serving there will either stay in Iraq into next year or be re-deployed, thousands will be returning to civilian life. Employers need to be mindful of the principal employment laws that protect the job rights of both the returning military personnel and their family members.

USERRA (http://tinyurl.com/35945d7) protects the rights of veterans to return to their civilian jobs. Employers must reemploy returning service members in the job that they would have attained had they not been absent for military service (the so-called "escalator" position), with the same seniority, status, and pay. USERRA also requires employers to make reasonable efforts to train or retrain returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the individual cannot qualify for the "escalator" position, USERRA requires the employer to provide alternative reemployment positions. The Department of Labor has published "VETS USERRA Fact Sheet 3" (http://tinyurl.com/33gaqtn) and other information to help employers understand the reemployment rights of service members.

Returning service members trigger their reemployment rights by advising their employer of their desire to return to work. Be patient — they might not do so right away upon their return to civilian life. While this notification must be given within the time periods specified in USERRA (which increase in relation to increased time of absence for military duty), note that service members convalescing from injuries received during service or training have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

Even if your company or location is not anticipating the return of a service member soon, be sure that you are compliant with USERRA's notification rule. Employers are required to provide to a notice of the rights, benefits, and obligations of persons entitled to the rights and benefits under USERRA. Employers may provide the notice, entitled, "Your Rights Under USERRA," (http://tinyurl.com/m4fqv) by posting it where employee notices are customarily placed. However, employers may provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail).

A word to the wise — in this time when returning service members are held in high regard and generally deserve all benefits of all doubts, employers are well advised to bend over backward to ensure that those persons receive reemployment considerations and assistance beyond the minimum required by law. Employers who violate USERRA, or barely comply with its minimum requirements but turn away a veteran, will have a difficult time defending claims made on behalf of these patriots.

Next week we will address the FMLA rights of family members.

Top Five Tips for Compliance With I-9 Audits

Immigration and Customs Enforcement (ICE) (http://www.ice.gov/) recently announced its four-year strategic plan (2010 to 2014) (http://tinyurl.com/36we3h3). One of ICE's key objectives is to "create a culture of employer compliance." ICE intends to do so through even more "aggressive enforcement against employers" with I-9 audits, fines, and criminal charges in egregious cases.

To support "a meaningful civil [I-9] audit program," ICE is hiring more investigators. At the same time, the Office of Special Counsel (OSC) (http://tinyurl.com/2u9trsh) of the Department of Justice is actively enforcing the antidiscrimination provisions of the Immigration Reform and Control Act (IRCA) – the I-9 law.

Here are some tips for staying out of trouble with ICE and the OSC with regard to Form I-9 Employment Eligibility Verification (http://tinyurl.com/y9e22k):

  1. Know the rules before you act (initial I-9 completion, reverification, and internal audits). Read the I-9 Handbook for Employers (http://tinyurl.com/2unnff2). This is the government's summary of the I-9 rules.
  2. Have the same two or three trained HR staff members handle the I-9 process.
  3. Use the most current version of the I-9 Form (August 7, 2009) (http://tinyurl.com/y9e22k) for new hires going forward and for reverifications (completing § 3).
  4. Complete the I-9 Form neatly, carefully (read the I-9 Form and fill in the information requested line by line), and within the required time periods: § 1 by the first day of work; § 2 by the third business day after hire; and § 3 by the date on which the evidence of temporary work authorization expires. As reconfirmed in United States v. New China Buffet, (http://tinyurl.com/2u432zj) 10 OCAHO No. 1132, at 4-5 (March 10, 2010), late completion is a substantive violation leading to fines. CAVEAT: A late I-9 is better than no I-9. The fines should be lower. Therefore, identify missing I-9 Forms for current employees hired on or after November 7, 1986 and promptly address.
  5. Show the I-9 instructions and the I-9 List of Acceptable Documents (http://tinyurl.com/y9e22k) to the employee and allow the employee to choose a List A document OR a List B document and a List C document for § 2. Do not ask for specific documents and do not ask more documents if qualifying documents are presented.

Please watch future Employment Law Updates for more tips for achieving I-9 compliance in your workplace.

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.