The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law granting certain rights to employees who leave employment to perform military service. These rights include the right to reemployment at the end of the military service. For the last nine years, employers with employees who left their jobs to fulfill military obligations in support of the War Against Terror and U.S. operations in Iraq and Afghanistan were often primarily concerned with the provisions of USERRA dealing with employee rights during a military leave of absence. Now, with increasing numbers of our troops returning from military service and reentering the civilian work force, the provisions of USERRA relating to the reemployment rights of veterans are taking on heightened significance.
As a general rule, an employee who leaves a job to perform military service is entitled to reemployment after military service is completed if four conditions are satisfied:
(1) The employee had given the employer notice that he or she was leaving work to perform military service.
(2) The employee’s total military service while employed by the employer does not exceed five years.
(3) The employee applies for reemployment within the time limits set by USERRA. (If the employee is returning from military service lasting more than 180 days, the employee has 90 days to reapply. Shorter application periods apply to shorter periods of service.)
(4) The employee has not been separated from the military under other-than-honorable conditions.
In determining whether the second condition listed above – the employee has not exceeded the five-year limit on total military service – has been satisfied, certain types of military service are not counted. Among these are active duty because of a war or national emergency declared by the President or Congress. President Bush declared a national emergency after the 9/11 attacks, so the military service of any reservist who was called to active duty or ordered to remain on active duty pursuant to the executive order declaring that national emergency will not count against the five-year limit. In addition, military service in support of Operation Iraqi Freedom or Operation Enduring Freedom does not count against the five-year limit, regardless of where the employee was stationed. As a result of the exceptions relating to wars and national emergencies, most military service during the last nine years will not count against the five-year limit on total military service.
If a returning veteran meeting the four conditions listed above applies for reemployment, the employer has a general duty under USERRA to reemploy that individual, unless it is unreasonable or impossible to do so. These exceptions to the general duty are construed very narrowly. If the employer implemented a reduction in force while the employee was in the military and the employee would have been terminated had he or she been actively working, the employer would not have to reemploy the individual. In other situations, however, the employer will often find it difficult to establish that reemployment is unreasonable or impossible. For example, the fact that the employer replaced the employee when he or she left for military service does not excuse the employer from reemploying the returning veteran, even if the replacement worker turned out to be a much better employee and even if the employer has to fire the replacement worker to make room for the returning veteran.
The position to which the veteran is entitled upon return from military service is the position he or she would have attained with reasonable certainty had the veteran remained continuously employed. This is called the escalator position. For example, if the employee would have been promoted during the period of military service had he or she remained continuously employed, the employee would be entitled to that higher position upon reemployment, and the employer must make reasonable efforts to make the employee qualified for that higher position. This may require special training for the employee. If the employee cannot be made qualified for the escalator position through reasonable efforts, the employer must reemploy the individual in the nearest approximate position to the escalator position, provided the employee is qualified for that position or can be made qualified through reasonable efforts. If no such position exists, the employee is entitled to the job he or she left. (Slightly different rules for identifying the appropriate reemployment position apply when the employee was absent for military service lasting less than 181 days or when the employee has a service-related disability.)
In identifying the appropriate escalator position, it should be noted that the escalator can go down as well as up. If the employee would have been demoted or would have suffered a pay cut had he or she remained continuously employed during the period of military service, the employee is entitled to reemployment in that lower ranked job or at the lower salary upon returning from military service.
If the returning veteran has a disability incurred during military service, the employer has a duty to provide reasonable accommodations for that condition, even if the employer is not covered by the Americans with Disabilities Act (“ADA”). USERRA does not adopt the ADA’s definition of “disability,” and conditions that do not constitute a disability under the ADA may nevertheless be considered a disability requiring reasonable accommodation under USERRA. For example, under USERRA, an employer would have to accommodate a short-term disabling condition, such as a broken leg, incurred in the course of military service.
Upon reemployment of a returning veteran, an employer must credit the employee with the period of military service for purposes of benefits based on length of employment. For example, if the employer’s vacation policy provides two weeks of vacation during the first five years of employment and three weeks after five years, an employee who works for one year, goes on military leave for five years, and returns to employment would be eligible for three weeks of vacation upon reemployment. The employer also must count the period of military service as time worked for leave-eligibility purposes under the Family and Medical Leave Act. If the employer provides health insurance to employees, a returning veteran is entitled to immediate coverage upon reemployment with no waiting period.
Once the returning veteran is reemployed, USERRA provides special protection against discharge without cause. If the military service lasted 31 to 180 days, the employee may not be discharged without cause during the first 180 days of reemployment. If the military service lasted more than 180 days, the employee is protected against discharge without cause for a full year after reemployment. Cause for discharge includes not only employee misconduct, but also nondiscriminatory termination as part of an economically motivated reduction in force. Employers should exercise caution in terminating reemployed veterans during this period of protection against discharge without cause. If a termination is challenged, the employer will have the burden of proving it had cause to discharge the employee. The employer should therefore make sure that it has solid evidence to back up its termination decision.