USERRA: New Hampshire
Federal law and guidance on this subject should be reviewed together with this section.
Author: Diana K. Wieland, Sheehan Phinney
- In New Hampshire, the same rights, privileges and protections afforded under USERRA are extended to members of the New Hampshire National Guard, state guard or militia. See New Hampshire Military Leave.
- Employers may not terminate or otherwise discriminate against employees who are members of the state National Guard because of the employee's participation in the National Guard or absence for military duty. See Prohibited Actions.
New Hampshire Military Leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides leave rights for public and private employees with military obligations. Among other things, USERRA requires employers to reinstate employees returning from military leave and to train or otherwise qualify returning employees.
In New Hampshire, the same rights, privileges and protections afforded under USERRA are extended to members of the New Hampshire National Guard, state guard or militia. Therefore, employers should provide employees who are members of the National Guard or state guard, when called to active service (state or federal), with the same benefits, privileges, and protections in employment regardless of the activation authority or location of service as those provided under USERRA. +RSA 110-C:1.
Under USERRA, when an employee returns from a qualified uniformed services leave, the employee should be reinstated into the position he or she would have attained with reasonable certainty had the employee remained continuously employed and not gone on leave. This concept is commonly known as the escalator principle. The escalator position is not necessarily the same job the employee previously had - in fact it can have negative consequences for the employee. The escalator can go up (e.g., if an employee would have been promoted), but it can also go down (e.g., if an employee would have been demoted, transferred or laid off).
In a First Circuit case (which includes New Hampshire), Rivera-MelÉndez v. Pfizer Pharms., LLC, +2013 U.S. App. LEXIS 19398 (1st Cir. P.R. Sept. 20, 2013), the US Court of Appeals for the First Circuit held that the escalator principle applies with equal force to both automatic and discretionary promotions. In Rivera a long-term Pfizer employee and Navy reservist, Luis Rivera-Melendez, was called into active duty. While on leave, Pfizer eliminated Rivera-Melendez's job category. All employees in the eliminated job category were given the opportunity to apply for a limited number of promotions as an alternative to being demoted or separating from the company. When Rivera-Melendez returned from leave, Pfizer reinstated him in his previous position but did not provide him with the opportunity to be promoted. Rivera-Melendez sued Pfizer claiming that Pfizer violated, among other things, USERRA's reemployment obligations under the escalator principle.
The lower court rejected the USERRA claim, finding that the escalator principle only applied to promotions that the employee could show he would automatically have received if not for his military service. The First Circuit reversed the lower court's decision on appeal, stating that the proper analysis is not whether the promotion was automatic, but rather whether it is reasonably certain that the returning servicemember would have received the promotion but for his or her absence for military service. Therefore, if an employer (especially those in the 1st Circuit, i.e., Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) makes discretionary promotions and does not consider employees on military leave they may be required to:
- Explain why the deployed servicemember/employee was not considered for the promotion; or
- Show that there was no reasonable certainty that the employee would have been promoted.
Civil Relief for Members of the New Hampshire National Guard, State Guard, or Militia
Any person who is called by the governor to active duty for a period of 30 days or more as a member of the state guard or national guard or as a member of the militia, should be provided with the same civil protections, rights, privileges, benefits and relief, accorded under the Soldiers and Sailors Civil Relief Act, +50 USCS Appx. § 501 and +50 USCS Appx § 560, as if they had been called to federal active duty in the service of the United States. +RSA 110-C:2.
Employers may not terminate or otherwise discriminate against employees who are members of the state National Guard because of the employee's participation in the National Guard or absence for military duty. In addition, no person should discourage any person from enlisting in the state National Guard through the use of threat of injury to the member's employment, trade or business, or of other injury if the person enlists. +N.H. Rev. Stat. § 110-B:65.
If a member of National Guard believes his or her rights have been violated, he or she must first attempt mediation through the Employer Support of the Guard and Reserve organization (ESGR). If mediation is unsuccessful for any reason, including a refusal to participate by the employer, then the mediator shall certify the complaint to the New Hampshire Department of Labor.
In the event the Department of Labor is unable to successfully resolve a complaint against an employer, the Department of Labor shall notify the affected military member and the military member may request that the complaint be referred to the Attorney General. The Attorney General may start an action in the name of the state of New Hampshire. However, if the attorney general declines to start an action, or if the person does not desire the assistance of the Attorney General, the affected member may file a petition in superior court seeking relief against the employer. +RSA 110-C:1.
Any veteran who has received an honorable discharge from the US armed services may choose not to work on Veterans Day provided the employee gives his or her employer proper notice according to the employer's policies and procedures. The leave may be unpaid. +NH Rev. Stat. §115-A:29.
Employers should maintain documentation of any impending military leaves. If an employee gives oral notice of an impending military leave, an employer should document such notice and place it in the employee's file. HR personnel should inform all managers/supervisors that they must forward any written notice, and communicate any oral notice, of an employee's pending military leave to the HR department. Employers should remember, however, that under the federal USERRA law, written or oral notice of military leave is sufficient to meet the employee's obligation to inform the employer of the need for military leave.
Employers should also maintain documentation for all employment actions taken against an employee on military-related leave to the same extent as it maintains documentation of those actions for other employees. Because USERRA and military leave lawsuits can arise as a result of alleged discrimination based on military service or enlistment in the military, employers should have documentation to demonstrate that any action it has taken is not related to or the result of an employee's service in the military.
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