The men and women who bravely serve our country and put their lives on the line can face challenges returning to the workforce when they get home. The information provided below describes select federal and state employment laws and protections specific to military service members, veterans, and their families:
- Protections for Military Members
- Protections for Military Families
- Veterans' Preferences
- Employment Assistance
The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes certain rights and responsibilities for uniformed service members and their civilian employers. The law's purposes are to:
- Encourage uniformed service by minimizing disadvantages to civilian careers;
- Minimize disruption to service members and their families, employers, and communities; and
- Prohibit discrimination against individuals because of their service.
USERRA applies to all employers, public and private, and protects the job rights and benefits of individuals who voluntarily or involuntarily leave civilian employment to undertake military service.
Under USERRA, an employee returning from active duty military service or training has a right to be reemployed to the same position (or a like position for which they are qualified) with the same benefits.
To qualify for USERRA protection, individuals must:
- Provide advance notice of their military service to their employer;
- Have less than five years of cumulative military service during their tenure with that particular employer (Certain time periods may be excluded from the cumulative five years.);
- Have not been separated from service with a disqualifying discharge or under other than honorable conditions; and
- Return to work or apply for reemployment in a timely manner.
EDUCATION & MEDIATION
The Employer Support of the Guard and Reserve (ESGR) is a good source of information and help related to USERRA. ESGR is a Department of Defense agency established to educate service members and civilian employers about their rights and responsibilities under USERRA. ESGR does not enforce USERRA, but serves as a neutral, free resource for employers and service members.
ESGR's Ombudsman Services Program provides information and mediation on issues related to USERRA. ESGR ombudsmen are volunteers located throughout the United States. The Washington ESGR office can be reached at 1-80-306-1971. You can find more infoamtion and submit questions online at www.esgr.mil.
The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) provides assistance with USERRA claims. VETS is authorized to investigate and resolve complaints of USERRA violations. For more information about USERRA, or for assistance in filing a complaint, contact VETS at 1-866-4-USA-DOL or visit the website at www.dol.gov/vets.
If VETS is unable to successfully resolve a complaint, an individual may request the case be referred to the U.S. Department of Justice or the Office of Special Counsel, as applicable, for representation. Individuals may also bring a private civil action against an employer for USERRA violations.
Washington State Employment & Reemployment Laws
Mirroring the federal USERRA law, Washington’s employment and reemployment statute (RCW 73.16) establishes certain rights and responsibilities under state law for uniformed service members and their civilian employers. The intent of the law is to ensure protections for state-activated personnel similar to those provided under USERRA for federal-activated personnel.
This information sheet provides an overview of the rights and responsibilities of employers and employees when it comes to accommodating military service obligations for state-activated military service members: Washington State Employment & Reemployment Rights for Uniformed Service Members (PDF)
State law provides that it is illegal to deny employment, reemployment, or any benefit of employment to military service members because of their military association and obligations. Under the law, individuals who voluntarily or involuntarily vacate employment in order to serve state active duty are eligible to be reemployed provided that:
- The employer has not experienced a change in circumstances that have made reemployment impossible or unreasonable;
- Reemployment does not impose an undue hardship on the employer; or
- The prior employment was not temporary.
State law also provides that any employee, once reemployed, will be considered as having been on a leave of absence and generally will not lose seniority, insurance, vacation, or other benefits previously earned.
To claim protections under the state law, individuals must generally:
- Provide advance notice of his or her military service to their employer;
- Provide documentation of having satisfactorily completed his or her uniformed service; and
- Make a timely written application for reemployment to his or her employer, which depends on the type and length of service:
|Service||Deadlines for applying for reemployment|
30 days or less
Must report to the employer and return to work on the next regularly scheduled work day after completion of service and expiration of an eight-hour period.
|31 - 180 days||
Must apply for reemployment and return to work within 14 days after completion of service.
|181 days or more||
Must apply for reemployment and return to work within 90 days after completion of service.
|If hospitalized for illness or injury during service||Must apply for reemployment and return to work after recovery from the illness or injury, so long as the period of recovery does not exceed two years.|
If the service was state active duty not covered by federal law (USERRA) and the Washington State Adjutant General was unable to help resolve the issue, state law tasks the Attorney General’s Office with enforcing the state employment and reemployment protections for state-activated military service members. Individuals who meet these conditions can get help from the Attorney General’s Office after being referred by the Washington Military Department. Individuals may also hire a private attorney to bring an action for enforcement.
Military Leave for Public Employees
Washington law (RCW 38.40.060) provides up to 21 days of paid leave during a one-year period for public employees who report to required military duty, training, or drills. To align with the federal fiscal year, the one-year period runs from Oct. 1 to the following Sept. 30. An Attorney General opinion concluded the term “day” in this context to mean a 24-hour period beginning and ending at midnight. The leave is for any member of the Washington National Guard, reservists, and active military service members.
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Federal Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) includes protections specific to military families. To qualify for FMLA leave, you must work for a covered employer and be an eligible employee. Public employers and most private employers with at least 50 employees are covered by the law. To be an eligible employee you must:
- Have worked for your employer for at least 12 months;
- Have at least 1,250 hours of service with your employer in the preceding 12 months; and
- Work at a location where your employer has at least 50 employees within 75 miles of your worksite.
QUALIFYING EXIGENCY LEAVE
If your spouse, parent, or child of any age is a military service member who is deployed or has been notified of an impending deployment to a foreign country, and you work for a covered employer and are an eligible employee, you may be entitled to qualifying exigency leave. Qualifying exigency leave allows you to take up to a total of 12 workweeks of FMLA leave for qualifying exigencies, such as: making different day care arrangements for the military service member’s children; attending official military ceremonies as your family member deploys or returns from deployment; or spending time with a military service member on Rest and Recuperation Leave (FMLA leave taken for this purpose is limited to a period of 15 calendar days for each instance).
MILITARY CAREGIVER LEAVE
If you are the spouse, parent, child, or next-of-kin of a covered service member, and you work for a covered employer and are an eligible employee, you may be entitled to military caregiver leave. Military caregiver leave allows you to take up to a total of 26 workweeks of unpaid leave during a single 12-month period to care for your covered service member or veteran who has a qualifying serious injury or illness.
Employers are prohibited from interfering with, restraining, or denying the exercise of (or the attempted exercise of) FMLA rights. The U.S. Department of Labor’s Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you have questions or if your rights under the FMLA may have been violated, contact the Wage and Hour Division at 1-866-487-9243. More information about the FMLA and its protections for military families is available at www.dol.gov/whd/fmla.
Washington Military Family Leave Act
Washington’s Military Family Leave Act (RCW 49.77) exists to support military families and enable them to spend time together before deployment and during a service member’s leave from deployment. Under state law, the spouse of a military service member may take up to 15 days of unpaid leave when the service member is deployed or called up to active duty during a period of military conflict. The 15 days may be split, but the leave must be used prior to the deployment or when the service member is on leave during the deployment.
The spouse of a military service member intending to take leave under state law must notify his or her employer within five business days of receiving official notice of the deployment, active duty, or leave from deployment. The employee must work an average of 20 hours or more per week to be eligible for leave under the law. Employers may count leave taken under federal law as leave concurrently taken under state law.
The Washington State Department of Labor and Industries investigates complaints related to the Military Family Leave Act and other state protected leave laws. You can contact the department at 1-866-219-7321. More information about Washington’s protected leave laws and instructions for filing a Protected Leave Complaint are also available online at www.lni.wa.gov/WorkplaceRights/LeaveBenefits.
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Federal Veterans' Preference
For many jobs with the federal government, the law gives eligible veterans preference in appointment. Although preference laws do not guarantee a job, veterans who are disabled or who served on active duty in the Armed Forces during certain specified time periods or military campaigns are entitled to preference in hiring and retention. Veterans' preference does not apply to internal federal agency actions, such as promotions, transfers, reassignments, or reinstatements. Under federal law, there are two designations of preference: 10-point preference and 5-point preference.
The U.S. Department of Labor's online "Veterans' Preference Advisor" allows a veteran to answer simple questions about their service to identify the preference he or she may be entitled to with respect to federal jobs. For more information, visit www.dol.gov/elaws/vetspref.htm.
Washington State Veterans' Preference
Washington State has enacted laws to assist veterans seeking employment with the state or any of its political subdivisions or municipal corporations. To qualify for state veterans’ preference, a veteran must first be able to show an honorable discharge or have received a discharge for medical reasons with an honorable record. Further requirements must be met depending on whether the employer administers a competitive examination as part of the hiring or promotion process.
WHEN THERE IS A COMPETITIVE EXAMINATION
If a public employer administers a competitive examination to determine the qualifications of applicants, RCW 41.04.010 provides that the scoring preference is added to a passing score only, and is applied based upon a possible rating of 100 points as perfect as follows:
- 10% is added for a veteran who served during a period of war or in an armed conflict and is not receiving military retirement, until the first appointment. This percentage is not added for promotional exams.
- 5% is added for a veteran who did not serve during a period of war or in an armed conflict or is receiving military retirement, until the first appointment. This percentage is not added for promotional exams.
- 5% is added for a veteran who was called to active duty while employed with the state, or any of its political subdivisions or municipal corporations. This percentage is added for promotional exams until the first promotion only.
All veterans’ scoring criteria may be claimed upon release from active military service or upon receipt of a separation order indicating an honorable discharge.
WHEN THERE IS NOT A COMPETITIVE EXAMINATION
If a public employer does not administer a competitive examination to determine the qualifications of applicants, RCW 73.16.010 provides that honorably discharged veterans, their surviving spouses, and spouses of honorably discharged veterans with a permanent and total service-connected disability shall be preferred for public appointment and employment. As interpreted by the courts, this law is not an absolute preference, but operates as a tiebreaker where two or more candidates have equal qualifications. An individual can seek to enforce his or her preference rights by filing a civil action in superior court.
Private Preference Permitted
In 2011, the Washington State Legislature enacted RCW 73.16.110, allowing private employers to give hiring preferences to honorably discharged veterans. The law makes it clear that such preferences are voluntary on behalf of the employer, and are not violations of any state or local equal employment opportunity law. Employers that hire veterans may also qualify for a tax credit.
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If you are a veteran or military service member looking for civilian employment, there are a number of resources available to help with your job search. The Washington State Department of Veterans Affairs has a collection of resources available at www.dva.wa.gov/benefits/employment.
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