Are you ready for Johnny to come marching home?

Sunday, March 1, 2009

With substantial changes in U.S. foreign policy a certainty in the new Obama Administration, many more military service members will be coming home and, if able, returning to the workforce. Some may return with conditions requiring workplace accommodations. Others may require care from their employee relatives. Employers must grapple with these issues with a clear and complete understanding of both the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and new military family member rights in the Family Medical Leave Act (“FMLA”). Employers who fail to appropriately meet these legal challenges are likely to find themselves in costly and difficult-to-defend litigation. Chance favors the well-prepared!

Perhaps because it has historically applied to only a small number of employees, USERRA is not well-understood as anything but a “leave law.” USERRA, however, actually provides more robust rights against discrimination and harassment than Title VII of the Civil Rights Acts of 1964 (“Title VII”) and imposes stronger accommodation duties than the Americans With Disabilities Act (“ADA”). Combine these realities with the fact that a violation of the FMLA may result in liability not only for the employer but for individual managers or owners who wrongfully deny FMLA rights, and you have a very potent set of obligations. Failure to understand these rights well enough to administer them properly can lead to serious financial consequences.

So how do you get ahead of the many issues surrounding the return of uniformed service member employees?

Review and Amend Policies

Military and family military leave policies must be reviewed and recrafted to ensure they are both complete and up-to-date with current regulations. Many employers have little more than generic “Military Leave” and obsolete FMLA policies. Written succinctly and without duplicating complex regulations, employers should have both FMLA and “Rights of Uniformed Service Members” policies that describe the full set of rights granted by these statutes while setting up understandable internal mechanisms to pursue them.

Train Front-Line Management

Front-line managers - particularly those with scheduling responsibilities - should be trained on the full scope of rights under USERRA, the amended FMLA, and state law. Lawsuits often happen based on workplace interactions that ownership, in-house counsel and/or human resources personnel never even learn of until too late. Ensuring that front-line supervisors understand their employees’ rights well enough to know when they have an issue, and encouraging them to immediately seek help, is critical to avoiding nightmare scenarios.

Support Human Resources

To say that FMLA and USERRA regulations are a “tough read” is a serious understatement. Understanding and translating their complexities into practical forms and procedures is a significant job. Yet when human resources is faced with how to respond to employees seeking to assert USERRA and FMLA rights, they must be prepared. Human resources personnel should themselves be well-trained and educated on the new and powerful menu of rights that the combined USERRA and FMLA provide military employees and their family members. Given the complexity, however, they cannot realistically be required to navigate all issues unassisted and should have access to legal guidance.

Anticipate the Human Factor

Finally, it is critical to recognize that even when a military leave issue is confronted head-on, any negative reactions by coworkers can create a “hostile environment.” Resentments arise when military leave issues are dealt with “on the fly” or by managers and coworkers who don’t understand how or why they need to make adjustments. A scramble that inconveniences others inevitably leads to problems. By contrast, where there are established systems for accommodating these issues, resentment and hostility is much less likely. It is therefore critical for the workforce to understand, through clearly communicated policies and firmly administered procedures and practices, both the rights provided to military personnel and their family members and that the employer honors those rights. Even then, top management must be vigilant to nip any resentment in the bud.

Jon Zimring is a partner in the Chicago office of the law firm Duane Morris LLP.

To read an extended version of this piece, go here.