Quick Hits
- SkillBridge does not bar background checks, but employers should apply standard background requirements consistently and not subject service members to additional scrutiny.
- SkillBridge does not create a separate recordkeeping regime, but its reporting requirements can impact the maintenance of the records.
- While SkillBridge employers can provide routine workplace perks, there are certain prohibitions on what the service member can accept under the government gift rules.
Placement Credit Under the SkillBridge Framework
Employers are required to report the placement rate of their SkillBridge participants, and the DoW-published sample Memorandum of Understanding (MOU) contemplates a high placement goal for program graduates (75 percent or higher). However, the governing authorities do not define “suitable employment” or “qualifying employment” for purposes of measuring that goal. Department of Defense Instruction (DoDI) 1322.29 instead provides that authorized participation in SkillBridge is contingent on a high probability of post-service employment with any employer upon the service member’s completion of the program and fulfillment of the service commitment. In fact, the DoDI’s “Data Metrics Elements” include the percentage of service members who receive job offers both inside and outside the local community.
Accordingly, any related employment after SkillBridge will likely count toward an employer’s placement goals even when the position is with the employer’s contractor, in a business unit different from the participant’s SkillBridge assignment, or with another employer in the same industry or area.
Background Checks
SkillBridge does not prohibit employers from conducting background checks on SkillBridge applicants. Pursuant to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers generally may ask about an applicant’s or employee’s background or require a background check, subject to restrictions involving medical and genetic information and other applicable law.
Employers should apply screening criteria consistently to SkillBridge and non–SkillBridge applicants. Employers should be cautious not to use (or appear to use) the applicant’s military status as a basis for heightened scrutiny or place additional requirements beyond those for non–military applicants. A background-check process that appears to impose additional scrutiny based on military status could create avoidable compliance and employee-relations risk.
SkillBridge employers should also be careful not to pass on the cost of background checks to program applicants.
Recordkeeping and Participant Data
Employers may generally maintain SkillBridge participant records under their ordinary document-retention practices, while ensuring they retain sufficient information to satisfy SkillBridge placement and reporting requirements.
Given the program’s reporting requirements, it might feel as though SkillBridge imposes additional recordkeeping requirements on employers. However, the distinction between reporting and recordkeeping is important. SkillBridge reporting obligations may require employers to track placement-related data, but those reporting needs do not, by themselves, create a separate or segregated personnel record retention system. In other words, an employer that hires a participating service member would create a personnel file for the member just as it would for any other applicant, intern, or new hire. The employer would also separately keep a record of its “placement rate,” as discussed above.
Government Gift Rules
Based on government gift rules, employers may be hesitant to offer SkillBridge participants relatively minor workplace benefits or perks that they would ordinarily provide to their employees, interns, summer associates, or new hires. These would be considered “gifts” to the service member, and employers should look to the federal government-wide gift rules, rather than any SkillBridge-specific policy. Healthcare and other major employment benefits would be covered by the service member’s service while they remain on active duty, so these are not an issue.
As a general matter, all service members (and therefore all SkillBridge participants) are prohibited from accepting gifts based on their official position or from “prohibited sources.” “Prohibited sources” include entities seeking official action by, doing business with, seeking to do business with, being regulated by, or having interests substantially affected by the employee’s agency.
Routine company benefits or perks would generally be allowable for a SkillBridge participant to accept when offered on the same terms as those available to other company team members. This might include things like team-building dinners, events, or company-wide discount programs. Unless the employer is offering the perk to the SkillBridge participant solely because of his or her military status, these gifts should be acceptable, but the employer should consider federal regulations and official DoW guidance before doing so.
Conclusion
SkillBridge generally permits employers to treat participants like similarly situated applicants, interns, or incoming employees for screening, records, and routine workplace perks. The key compliance steps are to support the service member’s future employment, avoid shifting program burdens, and apply the rules consistently.
Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments involving SkillBridge and related military-transition employment programs and will provide updates on the Military Workforce, Government Contracting and Compliance, Ethics / Whistleblower, Employment Law, and Background Checks blogs as additional information becomes available.
Adam J. Crane, a member of Ogletree Deakins’ Military Workforce Practice Group, served as a judge advocate in the United States Marine Corps and currently serves in the United States Marine Corps Reserve as a senior litigator and preliminary hearing officer.
James A. Patton, Jr., co-chair of Ogletree Deakins’ Military Workforce Practice Group, served as an officer in the United States Army and the United States Army Reserve.
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