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Even Negotiations In Good Faith Will Not Protect an Employer Who Fails to Promptly Rehire an Active Duty Military Service Employee Upon Return From Deployment

A recent legal decision highlights the swiftness with which employers must rehire employees returning from active military duty. In Harwood v. American Airlines, the United States Court of Appeals for the Fourth Circuit found that a delay of six or eight weeks was too long after the end of active military duty to rehire an employee. The Court ordered the airline to pay back wages to the plaintiff, a commercial pilot and major general in the Airforce Reserve. The decision came from the Fourth Circuit, which considers legal disputes arising out of federal laws in Maryland, Virginia, West Virginia, and North and South Carolina. The federal law at issue was the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is law in every state, including New Jersey.

IMG_0999-300x169Harwood was on military leave from his job with American Airlines from June 2013 through August 2015, and informed his employer of his intent to return to work following the end of his leave. In preparation for his return to American Airlines, Harwood had to obtain a medical certification from the Federal Aviation Administration (FAA). Because he had been diagnosed with atrial fibrillation during his military tour, the FAA denied the certification. Over the course of the next two months, Harwood and American Airlines communicated regarding his medical issue and potential resolutions to get Harwood back to work. Because he was not medically cleared to fly by FAA standards, American Airlines offered to extend his military leave until the medical waiver came through or, alternatively, to create a position appropriate for his status and with equal pay. Ostensibly, the airline was working diligently and in good faith to return the plaintiff to his former status within the company. However, the airline made its employment offer in late October, approximately six weeks after Harwood’s military leave ended and two months after he had informed his employer of his intent to return to work.

Harwood declined both options offered by American Airlines and spent the next three months on military active duty, receiving military pay. Approximately five months after his deployment ended, Harwood decided to accept American Airlines’s offer for the custom position. On that same day, he received his medical waiver to fly so he was reassigned as a domestic flight captain.

The lawsuit was filed over a year later, alleging military discrimination and a failure to reemploy promptly under USERRA. The trial court dismissed Harwood’s discrimination claim but granted judgment to him on his claim that he was not promptly re-hired. The court awarded Harwood backpay with interest offset by the amounts he received from the Air Force during the period of delay. The district court also found that the airline had not acted willfully, so it did not award liquidated damages. Both Harwood and American Airlines appealed. The Fourth Circuit agreed with Harwood and the trial court that American Airlines had not acted promptly enough to identify and place him in an appropriate alternative position, but did not specify what amount of time would have been acceptable.

So how long does an employer have to reinstate an employee following military leave?

USERRA is a federal law that applies in every state, including New Jersey. In order to be protected under the law, a service member employee (1) must have left his or her job for the purpose of performing military service, (2) must have given prior notice to the employer unless precluded by military necessity or if otherwise impossible or unreasonable, (3) must have served in the military for no longer than five years cumulatively while working for his or her current employer, (4) must not have been discharged dishonorably, and (5) must return to work or submit an application for reemployment. Time limits for when an application for reemployment must be filed vary depending on the duration of the military service and can be extended for up to two years for employees who incurred or aggravated a disability during their service.

Once all these criteria have been met, USERRA requires “prompt reemployment”, which New Jersey has interpreted to mean two weeks. For service members who were active for ninety days or less, the employee is entitled to the job he or she would have held if he or she had not been deployed, with an expectation that the employer will make reasonable efforts to ensure the employee becomes qualified. If the employee can not become qualified, then he or she is still entitled to his or her pre-service position. If deployment lasted longer than ninety days, employees are entitled to reemployment in a position of comparable seniority, status or pay. If reasonable efforts to requalify the employee are unsuccessful, then the employee is entitled to a position that reflects his or her full seniority, even if it confers lower status or less pay. It is important to note that employees may not always return to the exact position they held pre-service.

Military service is a protected status, which means that employees disabled during their deployment are entitled to reasonable accommodations from their employers upon reemployment. In all cases, USERRA requires that returning service member employees “step onto the seniority escalator” at whatever point they would have been when military service began. USERRA also provides special protection for service member employees against termination for 180 days following service that lasted between thirty-one and 180 days, and for one year following service that lasted over 180 days. In these cases, the employer must demonstrate that the employee would have been terminated regardless of military deployment or military status. These protections do not apply, however, when a military employee is fired for cause. Layoffs are considered terminations for cause.

It is important to understand the requirements placed on employees so that they benefit from the protections afforded under USERRA. New Jersey’s service men and women do not have the luxury of leaving behind a job without knowing they will be able to resume it when they return home. Our experienced employment attorneys continue working to ensure that New Jersey workers serving in the military are protected from discrimination and lack of employment upon their return from duty.

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