In light of continuing world events, many employers across the country are faced with having their employees called to active duty military service for indefinite lengths of time. This includes both employees who serve as military reservists and employees brought back into active duty service through military “stop loss” policies. Employers across the United States are, and will continue to be impacted by such deployments given the large number of active and reserve military personnel currently returning from service abroad. Importantly, employers should realize that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) places specific requirements on how employers must handle employee leaves of absence from work due to military service.
The Basics. USERRA protects the reemployment rights of individuals who are absent from employment due to service in the uniformed services for a period of five years or less. This statute applies to a broad range of “uniform services,” which includes, but is not limited to, the four branches of the military, military reservists, the National Guard, and the Public Health Services. USERRA applies to all public and private employers in the United States, regardless of size, and covers all categories of voluntary and involuntary military service and training. USERRA also prohibits an employer from discriminating or retaliating against an employee on the basis of his or her membership or obligation for service in the uniformed services. Importantly, an employer is place on notice that an employee is taking leave under USERRA when they receive either written or oral notice. Although an employer may request a copy of an employee’s military orders, the production of such orders are not necessary for an employee to receive protections under USERRA.
Importantly, there are exceptions to USERRA’s five year time limitation. These include where a servicemember is called to active duty in a time of war or national emergency. It has been our experience that this exception is beginning to become the rule as many employs returning to active duty were doing as a result of “war or national emergency.” Information as to whether leave is exempt from the five year requirement can be found on the servicemember’s military orders.
Reemployment Rights. USERRA generally requires that an employer offer reemployment to any employee returning from military service if the employee gave advance notice to his employer of such service. The employee is not required to decide before leaving for military service whether the employee will seek reemployment upon return. In fact, even if an employee indicates before leaving, or during the employee’s military service, that the employee does not intend to seek reemployment, the employee will still be entitled to reinstatement upon return if the employee desires reemployment at that point.
If a returning service member seeks reemployment, the reemployment must occur within a proscribed time period based on how long the employee was out on military leave. Employees on leave for less than thirty-one days can be required to report to work on the first full calendar day following the completion of service after the expiration of an eight hour rest period. An employee on leave for between thirty-one and one hundred eighty-one days must submit an application for reemployment within fourteen days of completing service. Finally, an employee who is out on leave for more than one hundred eighty days must submit an application for employment no later than 90 days after the completion of their service. When reinstating the employee, the employer must consider carefully the position in which the employee should be placed. Certain events, most notably hospitalization for injuries that occurred during military service can act to extend these reemployment times for a period of up to two years.
Where an employee’s USERRA military leave lasts longer than 180 days, a employer may not terminate the employer for one year without “just cause.” If the employee’s leave lasts between 31 and 180 days the same “just cause” requirement lasts for 180 days. This is true even if the employee would otherwise be considered an employee “at will.” Although the statute and regulations do not provide a list of what constitutes “just cause” employers are advised to document any reasons for termination and seek legal advice before terminating employment.
Use the Escalator Principle. Under USERRA, an individual generally is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service, a concept known as the “escalator principle.” Although the employee must be qualified to perform the duties of the escalator position, USERRA imposes an obligation on the employer to engage in reasonable efforts to qualify the employee for the escalator position. This can include spending time and money training or re-training such an employee.
The escalator principle also determines the returning employee’s seniority, status, and rate of pay. An individual who is reemployed under USERRA generally has the right to the same seniority, rights and benefits determined by seniority that the employee would have attained if he or she had not left due to military service. The absent employee is considered to be on furlough or leave of absence while serving and is entitled to any other rights and benefits not determined by seniority that the employer generally provides to employees who are on furlough or leave of absence. In addition, an employer must use the escalator principle to determine the returning employee’s rate of pay, taking into account all pay or step increases, as well as merit or performance increases, which the employee would have attained with reasonable certainty.
In certain circumstances, an employer may not be required to reemploy a returning service member. USERRA does not require an employer to reinstate an employee if the employer’s circumstances have so changed as to make reemployment impossible or unreasonable. In addition, an employer is not required to reemploy a returning service member if the position the employee held before leaving for military service was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue for a significant period of time. USERRA also does not apply to employees who were dishonorably discharged from military service. These circumstances, however, constitute narrow exceptions. The law requires reemployment in most circumstances.
Employers of all sizes must be aware of the requirements placed on them by USERRA. Failure to follow this law can lead to costly penalties and legal exposure. This can include both lawsuits by aggrieved employees and investigations by the United States Department of Labor. A successful USERRA Plaintiff is entitled to recover lost wages and benefits, reinstatement of employment or front pay, liquidated damages and attorney’s fees. Employers should, therefore, inform themselves of their responsibilities under USERRA and seek appropriate legal advice when necessary.