USERRA: Returning veteran employees to work
The purpose of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is to support the U.S.’s voluntary military services by providing returning veterans with enhanced job protections not enjoyed by non-military employees. All public and private employers are covered under USERRA.
An employer must only provide the minimum rights required by USERRA, but the Department of Defense and veterans’ rights groups such as the Employer Support of the Guard and Reserve encourage employers to provide any additional support they can to returning veterans, particularly those who have been away from their families, as well as their workplaces, for extended periods of time and who may need additional time to set their affairs in order so they may transition smoothly into their pre-military service lives and work.
Employer obligations under USERRA to return employees on military leave to work
Under USERRA, an employer must grant a leave of absence for up to 5 years to any employees who are absent from their job because of service in the uniformed services. Reemployment rights apply only to employees whose cumulative period of uniformed service does not exceed 5 years (excluding statutorily exempted periods) during the employment relationship with the same employer. There are limited exceptions to the 5-year limit, which may increase the maximum leave time allowed.
As a general rule, for periods of military service that exceed 90 days, an employer must reemploy returning employees in the job position they would have attained with reasonable certainty if not for the absence due to uniformed service. This is known as the “escalator position.”
The principle behind the escalator position is that, if not for the period of uniformed service, the employees could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. The escalator principle requires that returning employees be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites they would have attained if not for the period of service.
Note that if returning employees would have been promoted if they had continued in employment but can’t be qualified for either the new position or an equivalent one despite their reasonable efforts, the employer must reemploy those employees in the position they held when the period of military service began or in a position of like seniority, status, and pay.
USERRA does not require an employer to reemploy a returning employee if that employer’s circumstances have changed to where such reemployment is impossible or unreasonable. There are also exceptions to reemployment for special circumstances involving returning employees with a service-incurred or -aggravated disability if the employees don’t have the required skills and employment would impose an undue hardship on the employer.
As for the continuation of benefits based on seniority, employees returning from military leave are entitled to any benefits determined by seniority that they had when their leave began and also those benefits they would have accrued had they remained continuously employed.
Employees on military leave are entitled to other rights and benefits that are not determined by seniority as are generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, an agreement, a policy, a practice, or a plan in effect at the commencement of such service or established while such person performs such service. Under USERRA regulations, accrual of vacation leave is considered to be a non-seniority-based benefit.
Thus, vacation accrual only has to be provided to an employee on a military leave if the employer provides this benefit to similarly situated employees on a comparable, non-military leave of absence. An employee’s military service still must be counted to determine the rate at which the employee earns vacation upon return as part of the escalator principle.
Perhaps most importantly, USERRA prohibits an employer from denying any initial employment, reemployment, retention in employment, promotion, or benefit of employment to employees on the basis of their membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. In addition, employers are prohibited from retaliating against employees by taking any adverse employment action against them because they exercised their USERRA rights, testified in connection with a proceeding under USERRA, or assisted in a USERRA investigation.
Additional employer guidelines
Employees are entitled to reinstatement upon their return from military leave if certain conditions are met, including providing their employer with advance notice of their military service (unless the giving of notice is precluded by military necessity or is otherwise impossible or unreasonable) and timely return to work after completion of such service.
Upon completing service in the uniformed services and meeting the conditions mentioned above, returning employees must notify their pre-service employer of their intent to return to the employment position by either reporting to work or submitting a timely application for reemployment. Whether the employees are required to report to work or submit a timely application for reemployment depends on the length of the military service performed, as follows:
• Service of 1 to 30 days: Employees must report to their employer (no application is required) by the beginning of the first regularly scheduled work period that begins on the next calendar day following their completion of military service.
• Service of 31 to 180 days: Employees must submit an application for reemployment to their employer no later than 14 days after their completion of military service.
• Service of 180 or more days: Employees must submit an application for reemployment to their employer no later than 90 days after their completion of military service.
These time limits may be extended for up to 2 years if an employee is hospitalized or convalescing from an injury caused by active duty. The period for recuperation and recovery extends the time period for reporting to or submitting an application for reemployment to an employer and is not applicable following reemployment.
Note, too, that employees’ reemployment rights are not automatically forfeited if they fail to report to work or to submit an application for reemployment within the required time limits discussed above. In such cases, those employees will be subject to their employer’s established rules concerning unexcused absences.
An employer has a duty to “promptly reemploy” returning employees after they have reported to work or applied for employment.
The issue of promptly reemploying returning employees is the employer’s obligation, not the returning employees, and prompt reemployment by the employer means the employer reemploys the returning employees to the position they would have held if employment had not been interrupted by military service as soon as practical under the circumstances of each case. Absent unusual circumstances, reemployment generally must occur within 2 weeks of an employee’s application for reemployment.
Bottom line
USERRA’s reach is broad. It covers not only those in federal service in the Army and other branches of the federal armed forces but also persons in “service in a uniformed service,” which includes full-time National Guard duty. And although the law doesn’t require employers to provide paid time off to perform such duty, it does prohibit employers from treating employees in such service less favorably than employees who need leave for other reasons.
USERRA’s provisions can be difficult to understand because the statute and regulations do not address every scenario employers may encounter. Accordingly, employers should always consult with an attorney on matters relating to USERRA to ensure compliance with its protections for returning veteran employees.
