According to the latest Department of Defense (DOD) reports, approximately 1,485,000 troops have been deployed for military action since Sept. 2001.1 Of this number, more than 400,000 are National Guardsmen and reservists, and of that number approximately 84,200 have been deployed more than once and been mobilized for an average of 18 months.2
With the exodus of employees called to duty, the employer’s initial focus centered on protecting the employees as they left for war and, from a practical standpoint, filling the void following their departure. However, as more and more reservists demobilize and return to work (with the strong likelihood of being redeployed), the employer’s focus has shifted to reemploying military personnel, reintroducing reservists into the workplace, and operating an effective business.
Faced with the reality that the war on terror will require frequent deployments, employers can no longer place military leave issues on the backburner; instead, they must make them a priority. They must consider filling the vacancies caused by workers on military leave, choosing to supply partial pay or benefits for employees at war and their families at home, maintaining benefits (pension, 401(k), health), and, eventually, reemploying the employee upon return.
While the author believes employers are more than willing to accept these challenges, understanding their obligations is certainly no easy task. This article will provide an overview of the act protecting service members with special emphasis on reemployment rights and provide guidance to employers regarding their obligations as military personnel return to reclaim the lives they left behind.
Overview: Federal Law and Recent Regulations
In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits discrimination against members of the armed forces who leave employment, whether voluntary or involuntary, to perform military service.3 USERRA also prohibits retaliation against any person who has exercised his or her rights under the act.4
Simply stated, the act seeks to protect millions of individuals with the transition between military service and civilian employment. One of the fundamental purposes of USERRA is “to minimize the disruption to the lives of persons performing service in the uniformed services...by providing for [their] prompt reemployment.”5 Upon return from service, with limited exceptions detailed below, military service personnel must be reemployed in the same or similar position (same benefits, raises and promotions) that they would have attained if they had not been absent for military service.
On Jan. 18, 2006, 12 years after USERRA was enacted, the Department of Labor’s (DOL) long-awaited regulations became effective, clarifying the existing rights and responsibilities of returning military service members.6 Though extensive, the salient points include the following:
- Employers are required to reinstate returning service members within two weeks after they apply for reemployment, absent unusual circumstances.
- Employers are required to reinstate returning service members to a position with the same seniority, status, and pay they would have attained if they had remained continuously employed, generally without exception.
- Employers must make reasonable efforts to accommodate a disability if it limits the service member’s ability to perform the job.
- Employers must continue to provide service members specific rights under their healthcare and pension plans.
USERRA applies to all employers (public and private), without exception, regardless of the size of their workforce.7 USERRA protects any employee performing service in the Army, Navy, Marine Corps, Air Force or Coast Guard, including reserve duty.8 It also includes individuals who are not members of the uniformed services, such as those who perform as intermittent disaster- response appointees on activation of the National Disaster Medical System (Federal Emergency Management Agency or FEMA).9 There is no minimum hour requirement for employee coverage (like the Family and Medical Leave Act)10 and USERRA covers part-time, full-time, and even temporary employees.11
While this article will focus on USERRA, New Jersey employers should be mindful of the New Jersey Soldiers and Sailors Civil Relief Act of 1979 (NJCRA),12 which grants reservists who are called to active duty certain reemployment rights that basically mirror those found in USERRA.
Reemployment Rights and Reinstatement
With the rise of USERRA complaints, and increased exposure to employers, it is expected that employers know and understand their obligations to returning service members.
Before triggering an employer’s obligations, employees must meet certain conditions. Thus, to qualify for reemployment, a service member must have: 1) been absent from the position by reason of service; 2) given advance notice of the service to their employer; 3) served five years or less, cumulatively, while employed with that particular employer; 4) returned to work or applied for reemployment in a timely manner; and 5) been honorably discharged.13
To fully protect one’s right to reinstatement, an employee is expected to request to return to work within certain time limits, depending on the length of military service:14
- Military service of one to 30 days: Employee must report to employer by the beginning of the first full regularly scheduled work day that would fall eight hours after returning home following completion of service (allowing a reasonable period for safe transportation from site of military service).
- Military service of 31 to 180 days: Employee must submit an application for reemployment with the employer within 14 days after the completion of military service, or if that submission is not possible, on the first full calendar day that submitting an application is possible.
- Military service of more than 180 days: Employee must submit an application for reemployment within 90 days after the completion of the military service.
- Hospitalized or convalescing employee: Employee may have up to two years to submit an application for reinstatement. The recovery period may not exceed two years, unless circumstances beyond the individual’s control make notification within the required two-year period impossible or unreasonable. An employee continues to accrue seniority- based rights and benefits during any period required for recovery for service-related illnesses or injuries.
Notwithstanding these rules, an employee’s failure to report or submit a timely application does not automatically divest the individual of his or her statutory reemployment rights.15 Rather, in these circumstances, the employee becomes subject to the employer’s established rules, policies, and general practices pertaining to an employee’s absence from work.16
The Escalator Principle
After determining whether the employee qualifies for reemployment (i.e. honorably discharged and timely applied), employers must decide what position an employee is entitled to after being on protected leave. The short answer: An employee is entitled to the position (including, potential promotions) that he or she would have attained with reasonable certainty if not for the military absence.17
The Supreme Court, in Fishgold v. Sullivan Drydock and Repair Corp., relying on the Selective Training and Service Act of 1940,18 an earlier job protection statute for service members, explained that the returning service member “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.”19 The position to which the returning service member should be restored has become known as the escalator position. Sixty years after Fishgold, the USERRA drafters agreed with this principle and continue to follow its rationale.
The problem, however, with the escalator principle is that it is not absolute. At times, factors may allow, or even require, the employer to reemploy the employee in a position other than the escalator position. Factors that employers must consider in making this assessment include the length of the employee’s service and whether the employee has a disabling condition.20
For military leave periods of 90 days or fewer, an employer must reinstate the employee to the position the employee would have attained or held had he or she been continuously employed and not taken leave, provided the employee is qualified for the position.21 If the employee is not qualified, he or she must be reemployed in the position held on the date when military service began.
If the employee is unable to perform the duties of the pre-service position, even after the employer’s reasonable efforts to help the employee qualify (i.e. training, education), the employee must be reemployed in any other position that is the nearest approximation, first to the escalator position, and then to the pre-service position, also with the employer’s reasonable efforts to help the employee become qualified for such other positions.22
For military leaves of more than 90 days, the employee must be put in the position the employee would have attained or held had he or she been continuously employed and not taken the leave, or a position of like seniority, status and pay, provided the employee is qualified for the position.23 If the employee is not qualified to perform the duties of the escalator position or a like position, he or she must be reemployment in the pre-service position or a like position.24 If the employee is unable to perform the duties of the escalator position, the pre-service position, or a like position, after reasonable efforts by the employer, the employee must be reemployed in any other position that is the nearest approximation, first, to the escalator position, and then to the pre-service position, also with the employer’s reasonable efforts to help the employee become qualified for such other positions.25
Significantly, USERRA does not require an employer to reinstate a returning service member in an employment position if he or she is not qualified to perform the civilian job.26 The term “qualify” includes the employer’s affirmative obligation to make reasonable efforts to assist the returning employee in acquiring the ability to perform the essential tasks of the reemployment position. Reasonable efforts are actions—including training provided by the employer—that do not place an undue hardship on the employer.27 Whether a task is “essential” will depend on its relationship to the actual performance requirements of the position rather than, for example, the criteria enumerated in a job description.28
An employer may not decline to rehire a returning service member simply because he or she is unable to do some auxiliary, but nonessential, parts of the job.
Reemploying the Disabled Employee
Between 2003 and 2006, the DOD identified nearly 12,000 reservists as disabled, which includes both physical impairments and mental distress cases.29 In these situations, employers have additional obligations relating to the reemployment of a disabled service member.
If the disability is not an impediment to the service member’s qualifications for the escalator position, then the disabling condition is irrelevant for USERRA purposes. If, however, the disability limits the service member’s ability to perform the job, the statute imposes a duty on the employer to make reasonable efforts to accommodate the disability.30
If, despite the employer’s reasonable efforts to accommodate the disability, the returning disabled service member cannot become qualified for his or her escalator position, that person is entitled to be reemployed “in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer.”31 This position may be lower or higher, depending on the circumstances. If no such position exists, the service member is entitled to reemployment “in a position which is the nearest approximation... in terms of seniority, status, and pay consistent with circumstances of such person’s case.”32
Reasonable accommodations of the returning service member’s disability may include, among other things, light duty, modifying technology or equipment, revising work practices, and shifting job functions. As always, the appropriate level of accommodation depends on the nature of the service member’s disability, the requirements for properly performing the job, and any other circumstances surrounding the particular situation.
Frequent Deployments Pose Problems for Employers and Employees
Assume an employee is successfully reinstated and reintroduced to the workplace, one would think an employer’s obligations ends there, but they do not. Setting aside the reinstatement issues, employers now struggle with frequent deployments of their employees, which naturally is hard on business operations. Employees, too, struggle with frequent deployments after being reintroduced into the workplace only to be redeployed six months later and ripped away from the lives they have reclaimed. Faced with this uncertainty, from both the employer and employee’s perspective, how much protection is there for employees?
Under USERRA, an individual may serve up to five years in a single period of service or in cumulative periods totaling five years, and retain the right to reemployment by his or her pre-service employer.33 The five-year cap includes only the time spent in uniformed service. 34 It does not include the time an employee is off work, either before or after such service, even if that period may involve absences from the employment position for reasons that are service-related, for example, travel time to and from the duty station, time to prepare personal affairs before entering the service, delays in activitation.35
Not surprisingly, there are exceptions to the five-year maximum leave rule. In particular, unusual service requirements, circumstances beyond the individual’s control, or service (voluntary or involuntary) under orders issued pursuant to specific statutory authority or the authority of the president, Congress or a service secretary may extend the five-year cap for employees.36
USERRA also has imposed significant restrictions on an employer’s right to terminate an employee who would otherwise be employed at will, and thus, in effect, alter the employee’s at-will status for certain periods of time. For example, if the individual served over 180 days before reemployment, he or she may not be discharged from the employment position within one year after reemployment, except for cause.37 If the individual served between 31 and 180 days in the military, he or she may not be discharged from the employment position within 180 days after reemployment, except for cause.38 If the individual served 30 days or less, then the individual has no similar protection from discharge; however, the individual is protected by USERRA’s antidiscrimination provisions.39
Such protections against discharge ensure that the service member has a reasonable period of readjustment to the employment position after a significant absence, especially if the service member has assumed a new employment position. The discharge protection also guards against an employer’s bad faith followed by an unjustified termination of the reemployed service member.
An Employer’s Defenses Against Reemployment
With all these employee protections, it should be stated that service in the Army, Navy, Marine Corps, Air Force, or Coast Guard will not insulate the employee from termination. To sustain an employee’s discharge during the protected period, the employer bears the burden of proving either that the discharge was based on the employee’s conduct or was the result of some other legitimate nondiscriminatory reason that would have affected any employee in the reemployed service member’s position, regardless of his or her protected status or activity. Other reasons for discharge may include the elimination of the employee’s position, corporate reorganization or downsizing, and layoff, provided those reasons are legitimate, nondiscriminatory and non-pretextual.
An employer also may deny reemployment to an employee if the employer’s circumstances have changed in a way that would make reemployment impossible or unreasonable.40 For example, an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included the employee.41 However, an employer cannot establish that it is unreasonable or impossible to reinstate the returning service member solely by showing that no opening exists at the time of the reemployment application, or that another person was hired to fill the position vacated by the veteran, even if reemploying the service member would require terminating the employment of the replacement employee.42
An employer also may deny reemployment if assisting an employee in becoming qualified for reemployment would impose an undue hardship.43 “Undue hardship” is defined as any action that requires significant difficulty or expense in light of the nature of the action needed, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation or operations of the employer.44
The employer, in each instance, must affirmatively assert these defenses and prove that such defenses apply.
Undeniably, this area of the law is evolving and remains unsettled. Indeed, separate articles could be written on a number of USERRA topics: employer’s obligations to maintain benefits or offer continuation of benefits; priority of reinstatement between military personnel; vesting and accrual of benefits under retirement plans; and seniority rights, to name a few.
Nonetheless, the rise in USERRA complaints is evident. The four federal agencies responsible for assisting reservists with USERRA complaints— DOD, DOL, Department of Justice, and Office of Special Counsel—have addressed approximately 16,000 informal and formal complaints between 2004 and 2006.45 The government agencies continue efforts to capture employment information on reservists (including tracking and addressing USERRA complaints), but challenges remain, such as increasing reservists’ participation in reporting on employer information.
Obviously, there are tremendous efforts on the part of the government to improve oversight of reserve employment issues. With such scrutiny, best practices for employers is to know their role in transitioning military personnel back into the workplace with minimal disruption. Employers interested in protecting themselves—and their employees— should review their compliance policies, train their managers (and personnel) on USERRA rights and responsibilities, and provide guidance to returning military personnel.