WASHINGTON-Credit unions across the country have been boning up on their knowledge of the Soldiers and Sailors Civil Relief Act, but what happens when reservists return from Iraq and want their jobs back? As employers, the credit union community needs to understand service personnel rights under the Uniformed Services Employment...
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WASHINGTON-Credit unions across the country have been boning up on their knowledge of the Soldiers and Sailors Civil Relief Act, but what happens when reservists return from Iraq and want their jobs back? As employers, the credit union community needs to understand service personnel rights under the Uniformed Services Employment and Reemployment Rights Act, which covers all employers regardless of size and includes state and federal government. USERRA also preempts state and local laws that provide less protection than the federal law. USERRA is aimed at permitting those serving in the military to return to their jobs at the position where they would have been if they had not served so long as they are qualified, according to Karen Saul, shareholder in the law firm of Farleigh, Wada & Witt, P.C. During an audio conference today sponsored by CUNA, Saul told listeners that USERRA, which was implemented in the fall of 1994, has three objectives: * to encourage non-career military service; * to minimize disruption to those serving and their employers; and * to prevent discrimination due to military service. Only about 100 lawsuits have been filed so far under USERRA, Saul said, but because the war in Iraq is the first major deployment since the law’s existence she expects a drastic increase. “I do think we’re going to see a pretty good up tick in cases involving USERRA in the next couple of years because it’s going to be the first time this has been tested and a lot of people, I think, really are ignorant of what their obligations are and then make mistakes out of that ignorance.” If an individual’s military service were a “motivating factor” in removing them from a position, they would be able to appropriately assert their USERRA rights. The employer then has the obligation to prove they would have taken the same action, regardless of the military service, which is very difficult to prove, Saul explained. In such cases, the courts look at the time frame between the service and the adverse action, inconsistencies, expressed hostility relating to the service, and if the reservist had been treated differently than other employees. The only acceptable reasons for not reemploying someone back from military duty are that it is impossible or unreasonable or a service related disability that cannot be reasonably accommodated or they have been dishonorably discharged.’. Penalties for USERRA violations can include payment of lost wages and benefits, additional liquidated damages equal to the amount of lost wages and benefits for intentional violations, and attorney’s fees and court costs. -
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