Military Employment/Reemployment Rights
Uniformed Services Employment & Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed on October 13, 1994. The provisions of the act are contained in United States Code, Title 38, Sections 4301 through 4333.
The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services.
Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA.
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
Who’s Eligible for Reemployment?
Reemployment rights extend to persons who have been absent from a position of employment because of "service in the uniformed services." "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
- Active duty
- Active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty.
- Absence from work for an examination to determine a person’s fitness for any of the above types of duty.
- Funeral honors duty performed by National Guard or reserve members
The "uniformed services" consist of the following:
- Army, Navy, Marine Corps, Air Force, or Coast Guard.
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve.
- Army National Guard or Air National Guard.
- Commissioned Corps of the Public Health Service.
- Any other category of persons designated by the President in time of war or emergency.
The law requires all employees to provide their employers with advance notice of military service.
Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:
- military necessity prevents the giving of notice; or
- the giving of notice is otherwise impossible or unreasonable.
Duration of Service
The cumulative length service that causes a person’s absences from a position may not exceed five years. Most types of service will be cumulatively counted in the computation of the five-year period.
Exceptions. Eight categories of service are exempt from the five-year limitation. These include:
- Service required beyond five years to complete an initial period of obligated service. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.
- Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit . For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date (STOPLOSS).
- Required training for reservists and National Guard members . The two-week annual training sessions and monthly weekend drills mandated by statute for reservists and National Guard members are exempt from the five-year limitation. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development.
- Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations.
- Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the
President or Congress. This category includes service not only by persons involuntarily ordered to active duty but also service by volunteers who receive orders to active duty.
- Active duty (other than for training) by volunteers supporting "operational missions" for which Selected Reservists have been ordered to active duty without their consent. Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under Title 10, U.S.C. Section 12304. The recent U.S. military involvement in support of restoration of democracy in Haiti (“Uphold Democracy”) was such an operational mission as is the operation in Bosnia (“Joint Endeavor”). This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Persons involuntarily ordered to active duty for operational missions would be covered by the fourth exemption, above.
- Service by volunteers who are ordered to active duty in support of a "critical mission or requirement" in times other than war or national emergency and when no involuntary call-up is in effect. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.
- Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States.
When would service be disqualifying? The statute lists four circumstances:
- Separation from the service with a dishonorable or bad conduct discharge.
- Separation from the service under other than honorable conditions.
- Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war (Section 1161(a) of Title 10).
- Dropping an individual from the rolls when the individual has been absent without authority for more than three months or who is imprisoned by a civilian court. (Section 1161(b) of Title 10)
Reporting Back to Work
Service of 1 to 30 days. The person must report to his or her employer by the beginning of the first regularly scheduled work day that would fall eight hours after the end of the calendar day. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.
If due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.
Fitness Exam. The time limit for reporting back to work for a person who is absent from work in order to take a fitness-for-service examination is the same as the one above for persons who are absent for 1 to 30 days. This period will apply regardless of the length of the person’s absence.
Service of 31 to 180 days. An application for reemployment must be submitted no later than 14 days after completion of a person’s service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible. If the 14th day falls on a day when the offices are not open, or there is otherwise no one available to accept the application, the time extends to the next business day.
Service of 181 or more days. An application for reemployment must be submitted no later than 90 days after completion of a person’s military service. If the 90th day falls on a day when the offices are not open, or there is otherwise no one available to accept the application, the time extends to the next business day.
Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service.
The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable.
Unexcused delay. Are a person’s reemployment rights automatically forfeited if the person fails to report to work or to apply for reemployment within the required time limits? No. But the person will then be subject to the employer’s rules governing unexcused absences.
How to Place Eligible Persons In a Job
Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person's military service.
1 to 90 days. A person whose military service lasted 1 to 90 days must be "promptly reemployed" in the following order of priority:
(1) (A) in the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person; or, (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.
(2) if the employee cannot become qualified for either position described above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the person is to be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is able to perform, with full seniority.
With respect to the first two positions, employers do not have the option of offering other jobs of equivalent seniority, status, and pay.
91 or more days. The law requires employers to promptly reemploy persons returning from military service of 91 or more days in the following order of priority:
(1) (A). In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person; or, (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.
(2) If the employee cannot become qualified for the position either in (A) or (B) above: in any other position of lesser status and pay, but that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority.
"Escalator" position. The reemployment position with the highest priority in the reemployment schemes reflects the "escalator" principle that has been a key concept in federal veterans' reemployment legislation. The escalator principle requires that each returning service member actually steps back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.
The position may not necessarily be the same job the person previously held. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be on layoff status.
Qualification efforts. Employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold for reasons other than a disability incurred or aggravated by military service.
Employers must provide refresher training, and any training necessary to update a returning employee's skills in situations where the employee is no longer qualified due to technological advances. Training will not be required if it is an undue hardship for the employer, as discussed below.
If reasonable efforts fail to qualify a person for the first and second reemployment positions in the above schemes, the person must be placed in a position of equivalent or nearest approximation and pay that the person is qualified to perform (the third reemployment position in the above schemes).
"Prompt" reemployment. The law specifies that returning service members be "promptly reemployed." What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member's position and who might possibly have to vacate that position.
Changed circumstances. Reemployment of a person is excused if an employer's circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example.
Undue hardship. Employers are excused from making efforts to qualify returning service members or from accommodating individuals with service-connected disabilities when doing so would be of such difficulty or expense as to cause "undue hardship."
Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.
A right or benefit is seniority-based if it is determined by or accrues with length of service. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is subject to a significant contingency.
Rights Not Based On Seniority
Departing service members must be treated as if they are on a leave of absence. Consequently, while they are away they must be entitled to participate in any rights and benefits not based on seniority that is available to employees on nonmilitary leaves of absence, whether paid or unpaid. If there is a variation among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. For example, a three-day available to employees on nonmilitary leaves of absence, whether paid or unpaid. If there is a variation among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. For example, a three-day bereavement leave is not comparable to a two-year period of active duty.
The returning employees shall be entitled not only to non-seniority rights and benefits available at the time they left for military service but also those that became effective during their service.
Vacation Pay & Health Benefits
Service members must, at their request, be permitted to use any vacation that had accrued before the beginning of their military service instead of unpaid leave. However, it continues to be the law that service members cannot be forced to use vacation time for military service.
The law provides for health benefits continuation for persons who are absent from work to serve in the military, even when their employers are not covered by COBRA. (Employers with fewer than 20 employees are exempt for COBRA.)
If a person's health plan coverage would terminate because of an absence due to military service, the person may elect to continue the health plan coverage for up to 18 months after the absence begins or for the period of service (plus the time allowed to apply for reemployment), whichever period is shorter. The person cannot be required to pay more than 102 percent of the full premium for the coverage. If the military service was for 30 or fewer days, the person cannot be required to pay more than the normal employee share of any premium.
Exclusions/waiting periods. A waiting period or exclusion cannot be imposed upon reinstatement if health coverage would have been provided to a person had the person not been absent for military service. However, an exception applies to disabilities determined by the Secretary of Veterans' Affairs (VA) to be service-connected.
Multi-employer. Liability for employer contributions and benefits under multi-employer plans is to be allocated by the plan sponsor in such manner as the plan sponsor provides. If the sponsor makes no provision for allocation, liability is to be allocated to the last employer employing the person before the person's military service or, if that employer is no longer functional, to the plan.
Protection From Discharge
Under USERRA, a reemployed employee may not be discharged without cause as follows:
- For one year after the date of reemployment if the person's period of military service was for more than six months (181 days or more).
- For six months after the date of reemployment if the person's period of military service was for 31 to 180 days.
Persons who serve for 30 or fewer days are not be protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.
Employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including:
Persons protected. The law protects from discrimination past members, current members, and persons who apply to be a member of any of the branches of the uniformed services.
Previously, only Reservists and National Guard members were protected from discrimination. Under USERRA, persons with past, current, or future obligations in all branches of the military are also protected.
Standard/burden of proof. If an individual's past, present, or future connection with the service is a motivating factor in an employer's adverse employment action against that individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual's connection with the service. The burden of proof is on the employer once a prima facie case is established.
The enacted law clarifies that liability is possible when service connection is just one of an employer's reasons for the action. To avoid liability, the employer must prove that a reason other than service connection would have been sufficient to justify its action.
Both the standard and burden of proof now set out in the law apply to all cases, regardless of the date of the cause of action, including discrimination cases arising under the predecessor ("VRR") law.
Employers are prohibited from retaliating against anyone:
- who files a complaint under the law;
- who testifies, assists or otherwise participates in an investigation or proceeding under the law; or
- who exercises any right provided under the law.
- whether or not the person has performed military service.
How the Law Is Enforced
Regulations. The Secretary of Labor is empowered to issue regulations implementing the statute. Previously, the Secretary lacked such authority. However, certain publications issued by the U.S. Department of Labor had been accorded "a measure of weight" by the courts.
Veterans' Employment and Training Service (VETS).Reemployment assistance will continue to be provided by the Veterans' Employment and Training Service (VETS), of the Department of Labor. VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is optional. One can file a complaint with their local VETS office.
Access to documents. The law gives VETS a right of access to examine and duplicate employer and employee documents that it considers relevant to an investigation. VETS also has the right of reasonable access to interview persons with information relevant to the investigation.
Subpoenas. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.
Government-assisted court actions. Persons whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the Attorney General for possible court action. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant's behalf.
Private court actions. Individuals continue to have the option to privately file court actions. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General.
Double damages. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be "willful." "Willful" is not defined in the law, but the law's legislative history indicates the same definition that the U.S. Supreme Court has adopted for cases under the Age Discrimination in Employment Act should be used. Under that definition, a violation is willful if the employer's conduct was knowingly or recklessly in disregard of the law.
Fees. The law, at the court's discretion, allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. Also, the law bans charging of court fees or costs against anyone who brings suit.
Declaratory judgments. Only persons claiming rights under the law may bring lawsuits. According to the law's legislative history, its purpose is to prevent employers, pension plans, or unions from filing actions for declaratory judgments to determine potential claims of employees.