By Cynthia Gentile, J.D., Faculty Member, Dr. Wallace E. Boston School of Business and
Melissa Strickland, Assistant County Counsel, Cumberland County, New Jersey
What laws should employers understand when it comes to employing military servicemembers? In this episode, APU professor Cynthia Gentile talks to attorney and JAG officer Melissa Strickland about what both employers and military employees should know about USERRA and other laws that provide protections to military employees. In addition to knowing its legal obligations, she also offers insight into how employers can provide additional support by valuing military servicemembers’ unique experience, seeking to employ military spouses and veterans, and ensuring there are systems in place to support and engage military employees.
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Read the Transcript:
Cynthia Gentile: Welcome to the podcast. I’m your host, Cynthia Gentile. Thank you for joining me. In this episode, we will explore the employer and military employee relationship and hopefully provide some clarity around the web of laws that may pertain to military employees. We will also spend some time discussing how employers can better engage with their military employees.
I’m excited to welcome attorney Melissa Strickland to the program today. Melissa is Assistant County Counsel for Cumberland County, New Jersey with a practice that focuses on all aspects of public employment law. She is also a proud military spouse and was recently accepted to join the New Jersey National Guard as an officer in the Judge Advocate General’s Corps, more commonly known as JAG. Congratulations, Melissa, that’s quite an accomplishment.
Melissa Strickland: Thank you, Cyndi. It’s actually a pleasure to be able to serve.
Cynthia Gentile: Well, welcome to the program and thank you so much for taking time out of your busy day to talk with me.
Melissa Strickland: Thank you for having me on.
Cynthia Gentile: Your vast employment law experience has given you a unique vantage point. You currently work in a county government setting where part of your role focuses on providing anti-discrimination, harassment, and diversity training. Given that role, what are some of the key laws that employers should be aware of when working with members of the military or their spouses?
Melissa Strickland: Well, Cyndi, I think that’s a great question. And before I answer, first, I want to state just a small disclaimer. The information that I provide in this podcast isn’t legal advice. It’s actually intended for general informational purposes, and any listeners to this podcast should contact their own attorney to obtain advice with respect to any legal matter. So I also have to state that because I am an attorney for Cumberland County, the views that I express in this podcast are not those of the county, but they’re actually my own.
So to answer your question, I would say that there are several laws that an employer should familiarize themselves with when it comes to military servicemembers as employees. There are federal laws that are going to apply to, I would say the vast majority of employers in the United States and its territories. And then there are also state and local laws that each individual employer will have to familiarize themselves with when it comes to their military servicemembers.
As far as federal laws are concerned, one of the primary laws that many military employees in a civilian workplace would be familiar with would be USERRA. And USERRA is the law that protects servicemember employees who are about to engage in some type of training or deployment that’s going to take them away from their civilian employment. So this law gives those servicemembers the ability to be employed and re-employed in their position when they return from their service.
So one of the important things to know about USERRA is that the federal law requires employers to notify all of their employees about USERRA protections. One of the ways that an employer can let their employees know that USERRA exists is by a poster that is actually offered by the, I believe it’s the Department of Labor. They posted on their website and it’s free for employers to obtain, but they post it in their workplace wherever they put their notices and that makes people aware of what their rights are under USERRA.
Cynthia Gentile: So in terms of USERRA do you see a difference in sort of awareness of the law or utilization of the protections of the law in a government employer setting versus a private employer setting? I know you have some previous employment experience within the nonprofit space and with Amtrak.
Melissa Strickland: Yes. So in my experience, it is usually the servicemember that has the familiarity with the law and will advise their employer of what those protections are. It should be the opposite. It should be the employer understanding what the rights of their employees are so that they can serve their employees well and so that there aren’t hiccups or issues down the road that may lead to some type of claim of discrimination or some type of unfair practice or something like that. Instead, at the outset, the employer should familiarize itself with what laws and protections are afforded to its employees.
In the government setting and in private settings, unless that employer has a significant number of military employees, employers usually aren’t incentivized to familiarize themselves with all of these different laws, USERRA and state laws that mirror USERRA. There are oftentimes state laws that protect National Guard members who are usually acting under the authority of their governor and may not have USERRA protections depending on what their orders are or what their service is going to be.
It’s important for an employer to know whether they are private or government. It’s important for that employer to know what USERRA says, what its obligations are under USERRA, because the employer has obligations and the employee has rights. So the employer has to understand what those obligations are under USERRA and what the rights of the employees are.
Cynthia Gentile: Have you seen increasing challenges with the application or understanding of USERRA in this post-COVID world? I know in many cases National Guard members have been called up to serve with vaccine rollout initiatives so I’m just wondering if there’s been impact in that regard.
Melissa Strickland: In my position where I sit now, I don’t think that we’ve seen any issues with USERRA. I have the benefit of working with an employer that accommodates its military employees when they’re called to serve.
However, because there’s been so many things during this pandemic, there’s not only been the response to COVID, but there’s also been members that have been deployed to help with what happened at the Capitol back in January. And then they have regular deployments that are happening throughout the world where our servicemembers are serving.
I don’t necessarily believe that there’s been an uptick, but I do believe that there’s still a need for employers to understand what their obligations are and not only for their service member employees, but again, for their military spouses. There are also protections, not under USERRA but under the Family and Medical Leave Act that are afforded to dependents and military spouses. So all of these different things impact the employer and it’s important for them to know what their obligations are.
Cynthia Gentile: What are some of the common challenges that you see in understanding USERRA, FMLA or preference laws as it relates to veterans?
Melissa Strickland: One challenge that I know that I’ve seen encountered is something that’s not necessarily in the law, but it’s more functional. It has to do with understanding what orders say. And this is a small thing, but oftentimes, if anyone has ever seen Army orders that have come into an employer, they are kind of written in a dot matrix text. They look kind of weird and the terms and the acronyms that are used can be very unfamiliar to someone that has no military affiliation.
So just understanding what the orders are, can make things difficult for the employer. They may not understand what the dates are that they’re actually going to be deploying, or they’re actually be going to go to training, understanding what the servicemember is engaging in.
And sometimes, unfortunately, it can cause an employer to doubt that what they’re actually looking at, just because of the format of orders and the, I don’t want to say, I guess the word might be antiquity with the way that they look. It can cause an employer to doubt their veracity, which is unfortunate.
I would say that one thing that an employer can do is try to understand what the orders are. They can actually request the contact information for a commanding officer that can interpret what those orders mean so that they can better understand what the timeframes are that the employee is going to be away. I think another challenge is the employer being able to support an employee and not seeing that loss of the employee for a period of time, while they’re engaging in training, or engaging in a deployment, seeing that as something that’s detrimental.
Sometimes the employer may mourn that loss. I think that what employers need to do is view the military employee as an enhancement to the workplace and try to see their service as not a disruption, but a valuable service to the community and to the country.
So while the employee is actually there with the employer and working and not away, I think the employer has to find a way to capitalize on the unique experience and the knowledge that that employee brings to the workplace. I think that employers also have to provide systems, put systems in place so that when that employee is away that there isn’t a detrimental loss to the workplace.
Cynthia Gentile: Melissa, thinking about the employer’s sort of minimum requirements under USERRA, what is the minimum that an employer must do to accommodate their military employees?
Melissa Strickland: So the employer has to reemploy the service member upon their return from a training or from a deployment. They have to provide the employee with ongoing health insurance benefits so while that employee is away. The employer has to give the employee either the same position that they had when they left or a substantially similar position. The employer also cannot allow the employee to have any loss in time or any loss in benefits that would have accrued to them had the employee remained in the position instead of going to training or duty.
Cynthia Gentile: So does the employee need to do anything under USERRA to sort of pull in those protections?
Melissa Strickland: Oh yeah, absolutely. The employee has to give their employer notice of their leave before they leave. There are going to be exceptions to that rule, depending upon military necessity and things of that nature.
Sometimes a servicemember is called to duty and they are not permitted to reveal where they’re going and certain information that the military prevents them from providing that information to the employer. But where the employee can give reasonable advanced notice to their employer, they’re required to let their employer know.
And then there are also requirements of the employee. They have to return within a certain amount of time, depending on how long the length of their service was away from their job, they have to return back to that position within a certain amount of time. There’s a cumulative service requirement. It’s a little technical, but USERRA protections might not be afforded to the employee if they’ve so many cumulative years of service away from their employer.
I think it’s vital to know that employers are required to provide a workplace that’s free from discrimination for their employees as it pertains to military service. There’s a provision in USERRA, that protects servicemembers from retaliation or from any discrimination for their service.
For instance, if there’s a servicemember who files some type of claim against their employer under USERRA, if they assert that their employer violated USERRA, and there is some subsequent litigation or an investigation, the employer can’t retaliate against any employee or other person that engages in or participates in an investigation or in a trial or any part of that process. So I think it’s important for employers to realize that there are protections that are given to employees that are servicemembers and also other employees who aren’t military affiliated, just in this retaliation clause.
Cynthia Gentile: These provide a floor, the minimum that an employer must do. What are some ways that you’ve seen employers go beyond this to better accommodate their servicemember employees?
Melissa Strickland: I think that gets into the question of military employee engagement. And there are several different ways that an employer can engage with their military employees and with wider community and with the military employee families.
I think one of the first ways that an employer can engage with military employees is hiring military spouses. There is a program that the Department of Defense has put together for military spouses and employers can actually apply to be a part of this program, which says after they meet certain requirements, agree to hire or focus on hiring military spouses.
I think that there are statistics that show that the unemployment rate for military spouses is somewhere around 25% and the underemployment rate, meaning that the military spouse has certain abilities and skills and training, but they are working in jobs that are actually below their skills and training, knowledge and abilities. The underemployment rate is also around 25%.
Hiring military spouses helps our community. It helps military families, and it also provides a great benefit to the employer that gets to take advantage of the training and the knowledge, skills, and abilities that these spouses have.
Another way that employers can engage with their military employees is by supporting any local nonprofit or organization that supports veterans or military. For instance, when one of the servicemembers has to go away for duty or for training during that time period, the employer can engage with a nonprofit that may provide supplies or materials that deployed servicemembers need where they are throughout the world. I won’t name any particular organization, but there are a number of organizations that have that type of focus.
The Department of Defense also has on its website a list of nonprofit organizations that support military and veterans. My understanding is that those organizations have been vetted as valid organizations. And so that’s a resource that might be valuable to employers that wish to do outreach.
Cynthia Gentile: So engagement is obviously so important, but it is a buzzword in many employment spaces these days. So why do you think it’s important for an employer to focus on specifically engaging the military employee? In other words, what are the benefits in the short term and in the long term?
Melissa Strickland: I understand that engagement may be a buzzword, but it still has validity for an employer who is looking for ways that they can actively get their employees or their particular workplace community involved with each other in accomplishing a task or involved in community outreach.
Engaging the military or engaging local veterans is one way to unite your workplace and at the same time, provide community outreach. There are statistics and information that show that there is a great need within the military community and veterans. We see things about awareness regarding suicide and PTSD, and the impacts that the servicemembers being away from children and spouses can have on individuals. So having a focus on just one of those many different areas can have a positive impact on the community and on the workplace.
In the long term, I believe that the same benefits will accrue to the employer. The employer will create a lasting impact on the community that it serves. And it will also reinforce the bonds between the employees that are in the workplace.
I think another way that an employer can engage with its military servicemembers is to actually know what the different military holidays are to understand what they actually mean and to find ways to connect with their servicemembers during those holidays. And again, also connect with the community.
I think recently for the past couple of years, I’ve been hearing more and more, especially around Memorial Day that servicemembers want the general public to understand that Memorial Day is not just about barbecues and the start of summer, but it’s actually to honor fallen soldiers.
And there are so many different ways that an employer can honor fallen soldiers on that holiday, such as laying wreathes on local cemeteries, participating in parades, honoring former employees that may have fallen in the line of duty or family members of employees that have fallen in the line of duty. There are small ways that are very meaningful that employers can engage with their employees and the community in that way.
Cynthia Gentile: Sure. A big impact from a small sort of effort, and even just understanding the difference between Memorial Day and Veterans Day.
Melissa Strickland: Absolutely.
Cynthia Gentile: I know that in my own personal space, that that’s something that I’ve had to explain to, I want to make sure my children understand that. I want to make sure that my friends understand that. I’m lucky to work for American Public University, where we really are very military-focused, but it’s so important to have that base of knowledge and understand what the holidays represent and why they’re important.
Melissa Strickland: Absolutely. I completely agree. I think if employers will take a very short amount of time, and particularly human resources departments, take the time to understand the difference between the holidays and maybe mark them out, doesn’t have to be something that costs any money. Just sending a simple email to all of the employees on certain days to say we remember or something along those lines can go a long way in showing that the employer cares about its employees. It cares about its military. It cares about its country.
Cynthia Gentile: And that would go a long way. I agree. So I’m going to ask another question and you can decide if this is something that you have a story to tell or want to answer, but can you tell us a little bit about your own decision to join the JAG Corps?
Melissa Strickland: Absolutely. So a long time ago, when I was in law school, I had an older sibling that joined the military. And I was so impressed by the change that he experienced in his life joining the military, that when I went to law school and was getting close to graduating, I interviewed with an Air Force JAG officer or recruiter and had a conversation with him. And because of different life circumstances that I was experiencing at that time, I decided that entering into the military at that time just wouldn’t be right for me.
I got married maybe a couple of years later, and my husband then decided that he wanted to join the Army. And initially, I didn’t fully support that decision because we had a small family and just that the circumstances that we were in didn’t seem like it would be a fit for us, but it has worked out really well for him.
At the same time, the desire for me to enter the military myself never went away. And now, several years later, and kind of getting a little bit more advanced in age, I saw the window of opportunity for me to join kind of closing. And I wanted to jump in before the door was shut. So I put myself out there and went through kind of a lengthy process, but by God’s grace, I was accepted and tomorrow I will actually commission as a first lieutenant.
Cynthia Gentile: That’s wonderful. Congratulations again. That’s great. So to close out our conversation now that you’ll have this personal connection to service, what do you want your employer or just the theoretical employer to do for you as you start this process?
Melissa Strickland: Well, I come at it from two different perspectives. One, as a military spouse for several years. Another as an employee that’s now entering into the military. I think it’s important for my employer to have patience with me. I know that I will have training that’s going to impact the workplace. I won’t be here for a period of months while I enter into training.
So I think for me, and for any employer that is going through the same situation, it’s important to have patience with the servicemember as they try to figure out even what their training dates are, how long they’re going to be gone. There’s a lot of questions that I am unable to answer, and I’m relying on other people to give that information to me.
So I think that’s one, having patience. Two, is to not try to pile on all of the work that’s possible before that servicemember leaves. I think a better approach would be to try to find systems, try to find some methods of performing the work so that when that person is absent, it won’t be felt as much. There will be a continuous flow for that work. There will already be things in place to make sure that the work doesn’t stop.
Cynthia Gentile: Melissa, thank you so much for taking time to talk with me today and sharing your experiences and your personal perspectives. I really enjoyed our conversation.
Melissa Strickland: Thank you so much for having me on.
Cynthia Gentile: And thank you to our listeners for joining us. Be well and be safe.
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