Due to the past Afghanistan and Iraq wars, a huge number of Americans left their jobs and livelihoods to serve the military. In total, approximately 10 million Americans engaged themselves in these hostilities; 35 % of which were members of the National Guard and Reserve troops. The 35 % represent what is termed as citizen soldiers, who are allowed to lead a normal life, but in cases of war, they are called to duty. In brief, these citizen soldiers left their occupations so as to serve the nation. However, there are Federal laws instituted to protect the interests of such individuals. Therefore, members of the National Guard are entitled to return to their respective jobs and even earn promotions that they could have received during the time lapse that they were on duty (Heriot, Thomson, and Bardwell, 2008). The purpose of this paper is to evaluate how the escalator principle will affect employment and how business owners can cope with it.
According to the Uniformed Services Employment and Reemployment Rights Act (USERRA), the escalator principle “applies to seniority and all benefits and rights, which flow from seniority, calculated with assumption that the individual had never left the occupation” (Wright, 2015). Conclusively, a retired officer has to pass certain qualifications after which he/she is entitled to be reinstated promptly to the previous position or a similar one with equal pay and status. Wright (2015) deduces that veterans have the entitlement to various benefits like equal opportunities for upgrade, job location, healthy working conditions, geographical location, rank, shift assignment and responsibility.
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The principle presents a dilemma to employers mainly those operating small businesses. At first glance, it may be seen that hiring a veteran is comparable to hiring a redundant person and giving him/her a higher pay cut only because the law says so. On the other hand, it is the government’s responsibility to pay back the men and women who risked their lives to protect the America’s interests. According to Staton (2012), on paper, it may be simple to either follow the USERRA’s propositions or your company faces litigation and negative publicity. The law, however, takes little account on how employers are supposed to cope with the particular influx of workers. It is estimated that over the course of the next five years a total of 300 000 members of the military will be discharged. This presents a real headache for companies and businesses that must make room for these many individuals.
In terms of hiring and promotion, the escalator principle will have a lot to say regarding the future of former military members. The law states that the officer in question should be granted promotion that he/she may have gotten in the period of time that they were away. However, this would be rather difficult as promotions are based on merit rather than time served. George Wood argues that most employees err in not tracking continuously the positions members would have obtained had they been in constant employment (Smith, 2010). Nonetheless, promotion is not as challenging as it seems especially in a company with proper records and well underlined contract terms. For example, some companies may have various goals and objectives for each and every employee that if completed due rewards and promotions may ensue. All in all, USERRA will go a long way in safeguarding promotion and related benefits for ex-military employees (Staton, 2012).
When it comes to hiring the USERRA has laid out the guideline very clearly for both employers and prospective employees. A member of the National Guard and Reserve military forces should be duly employed if he/she fulfills the following demands: First, if one issued an advance verbal or written notice of the service obligation to the employer; unless there was a “military necessity” or other circumstances made it impossible or unreasonable to provide such notice. Secondly, when one was absent because of military service for less than five years total time, not including training periods (Staton, 2012). Third, if one received an honorable discharge from the active duty service or obligation. And lastly, when an individual submits a reemployment application or reports to the employer, depending on the length of the absence for military service.
As stated earlier, on paper all of these reemployment procedures seem comfortable and very liquid. However, we have to take into account the level of biasness that employers have regarding the reinstatement of servicemen. Ever since the enactment of this escalator principle based laws discrimination has been rampant. Biasness comes in two firms regarding this matter one positive and the other negative (Staton, 2012). Some employers may be of the impression that military members convey heroism and discipline hence they would not look twice if given the chance to employ them. Whereas other firms label these citizen soldiers negatively as undeserved promotion, abandoning work and increased wages.
Just like any other job application record and status of the applicant at their former workplace matters a lot, similarly, the rank of an army officer matters a lot to employers. Much so to the point that highly ranked officers seem to get reemployed with no hustles whatsoever while lowly ranked servicemen are faced with a heap of difficulties during reinstatement (Gingrande, 2013). There are numerous advantages and consequences of reemploying former army personnel. On a positive note, they increase the workforce to the employer while at the same time granting individuals’ meaningful employment. Nevertheless, reinstating officers may be an expensive alternative particularly when an institution has to change its structure so as to accommodate particular individuals.
Any successful business should go by the law. So how can a company run its operation efficiently by the USERRA statutes without risking litigation? First, as an employer or business owner on should cultivate the habit of keeping in touch with employees more so those on duty. This does not mean that an employer should be in constant chit chat with each worker. Contact may be done in a conventional manner through mails and even forums. The importance of this measure is that employers will be well aware of what decisions the employee has or will make while he/she is out of work (Gingrande, 2013). For example, a worker who hopes to retain his job position once he/she returns may effectively articulate his wishes such that necessary arrangements may be made. These methods may include hiring other individuals on temporary contracts till the individual worker or serviceman in this case returns.
Furthermore, Gingrande (2013) suggests that a company should be ready to provide the necessary training for these former soldiers once they return. It is evident that lack of exposure over lengthy periods may leave a person a bit rusty on the day to day skills that are required in any occupation. Therefore, a company should take it as an obligation to train these people so that they may be competent in whatever work they are given. Training also applies in the case of promotions; veterans should be trained for the promotions that may have accrued in the course of their absence. Heriot, Thomson, and Bardwell (2008) deduce that failure of a company to offer such training services may lead to losses on their part, and a derailed worker-employee relationship. For small businesses, however, this may be a rather difficulty, particularly when advanced training is required. A small business owner can tackle this problem through offering training in small bits in the most economical manner possible.
Moreover, record keeping of activities within an organization is also another safeguarding measure. This just means keeping track of employees in similar positions so as to deduce a course which person serving the army might have taken. Ogles (2012) argues that this will, in turn, avoid the ambiguities associated with a temporary leave of office. Such a case is that of Raul Menendez who after returning from his Navy duties asked to be reemployed, and the company agreed. He was given the same salary and the previous occupation that he occupied. His position, however, had been eliminated and in return, the company opted for open team leaders. Menendez sued the company stating that he would have applied for the post of a team leader and that the company was misusing him as a resource. He lost in the first ruling nonetheless in a later appeal the ruling was in his favor. Such discrepancies can be avoided if proper contact and records are kept.
Due to America’s evasion of Iraq and the Middle East, more Americans are bound to return home. This would bring an even larger influx of affiliates of the National Guard and Reserve military forces. Thus employers, reservists and the servicemen themselves need to be knowledgeable about how to approach reemployment with regards to the escalator principle (Ogles, 2012). Thereby, USERRA’s role would be more vital in the years to come. However, it should not be forgotten that the purpose of USERRA and these laws is to safeguard the normality of an employee had he/she not gone to war. This normality should be the standard to be followed by the employers and those seeking employment.
Gingrande, A. (2013). The Import of "Undue Hardship" from the ADA to the USERRA: Useful Guideline or Trojan Horse? Journal of Business Law, 15(4), 1111-1123.
Heriot, C., Thomson, N. &Bardwell. S. (2008). Call to Duty: What Every Small Business Owner Should Know About USERRA. Small Business Institute Journal, 2(1), 79-89.
Ogles, D. 2012. Life during (and after) Wartime: Enforceability of Waivers under USERRA. The University of Chicago Law Review, 79 (1), 387-425.
Smith, A. (2010). Escalator Provision Remains Widely Misunderstood . Retrieved from https://www.shrm.org/legalissues/federalresources/pages/escalatorprovision.aspx
Staton, J. (2012). Employment Law - The Fifth Circuit's Shaky Landing Prohibits a Hostile Work Environment Claim under USERRA for Pilots with Military Obligations. Journal of Air Law & Commerce , 77, 211- 276.
Wright, S. (2015). What Is the Escalator Principle? Retrieved from www.servicemembers-lawcenter.org/uploads/15102-LR.pdf