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Supporting Employers in the Reserve Operational Forces Era

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by Susan M. Gates, Geoffrey McGovern, Ivan Waggoner, John D. Winkler, Ashley Pierson, Lauren Andrews, Peter Buryk

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Research Questions

  1. What are the legal protections provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA), what obligations do they impose on employers, and what are the areas of ambiguity?
  2. To what extent do employers understand their obligations under USERRA?
  3. What factors influence the cost of USERRA protections for employers?
  4. What changes to USERRA or to U.S. Department of Defense policy would employers find useful in fulfilling their obligations under USERRA?

Employer Support of the Guard and Reserve (ESGR), a U.S. Department of Defense (DoD) office, asked the RAND Corporation to study the implications that using the Reserve Components (RCs) as an operational force can have for employers in view of employment rights protections for RC members. Specifically, ESGR wanted to know whether changes are needed to the Uniformed Services Employment and Reemployment Rights Act (USERRA), 1994 legislation designed to prevent hiring discrimination and bolster job protection for members of the armed forces, including those of the RCs; ESGR support programs; or RC activation and deployment policies, given the increased mobilization of the National Guard and Reserve and the continuing need to balance the rights, duties, and obligations of employers, RC members, and RC members' families. The study involved the review and analysis of existing research and data related to USERRA and the effects on employers of employee absences more generally, an analysis of the 2011 DoD National Survey of Employers, focus groups with employers conducted in 2012, interviews with RC chiefs conducted in 2011, and a legal and legislative history review of USERRA. This report describes key findings from the analysis.

Key Findings

Current Legal Protections for Reserve Component Members Are Generally Clear and Consistent with Other Employment Laws

  • In its current form, there are two main aspects of the law: (1) general antidiscrimination protection based on veteran status and (2) reemployment rights after periods of military duty.

Understanding of Current Law, Employer Obligations, and Where to Go for Help Is Incomplete

  • Employer knowledge of current law and support is incomplete.

The Effects That Legal Protections Can Have on Employers Is Highly Varied and Influenced by a Wide Range of Factors

  • Duty-related absences can pose substantial burden on employers in some circumstances, but the impacts are highly varied and influenced by a wide range of factors. The impact of legal protections stems from the direct and indirect implications of duty-related absence for business operations, rather than from the costs of the specific employment and reemployment rights contained in the legislation.
  • The following factors are associated with greater employer impact: longer or more-frequent absences; the absence of highly skilled employees, key personnel, or employees who are "one of a kind" in their organizations; and employer characteristics, including employer size, with smaller employers being more likely to experience impacts.

No Single Change to Policy or Support Programs Would Address the Concerns of All Employers

  • There was no consensus among employers as to the support programs that would be most useful to their businesses in the event of a duty-related absence.

Recommendations

  • There is no need for substantial revision to the legislation.
  • Providing greater flexibility to employers holds more promise than broad changes to protections or utilization policy.
  • Employer Support for the Guard and Reserve should continue its efforts to promote awareness of current protections.
  • Employer peer resource networks could assist employers in dealing with duty-related absences.

Table of Contents

  • Appendix A

    USERRA History

  • Appendix B

    Analysis of Data from the DoD National Survey of Employers

  • Appendix C

    Analysis of Data from the January 2011 Status of Forces Survey of Reserve Component Members

  • Appendix D

    Analysis, by Reserve Component

  • Appendix E

    Employer Focus Group and Interview Methods

Research conducted by

The research described in this report was prepared for the Office of the Secretary of Defense (OSD). The research was conducted within the Forces and Resources Policy Center of the RAND National Defense Research Institute, a federally funded research and development center sponsored by the Office of the Secretary of Defense, the Joint Staff, the Unified Combatant Commands, the Navy, the Marine Corps, the defense agencies, and the defense Intelligence Community.

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