As National Guard, Reserve and other military service members begin their tours of duty in Iraq or elsewhere and/or seek to re-enter the civilian workforce, employers need to be knowledgeable as to these individuals’ rights, benefits, and obligations under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
The following is a brief overview of USERRA’s requirements:
- No discrimination/retaliation: Employers may not discriminate or retaliate against individuals in employment (including applicants for employment) because of their current, former or prospective membership, service, or obligation to perform service in the uniformed services.
- Unpaid leave: Employers must grant up to five years of unpaid military leave.
- Reemployment: When leave is for five years or less, employers must promptly reinstate employees returning from leave to the job and benefits the employee would have attained with reasonable certainty had the employee not been absent due to military service or, in some cases, a comparable job promotion or increase in benefits based on seniority (i.e., the “escalator” principle).
- To be entitled to reemployment, an employee must generally: (1) provide advance notice (verbal or written) of service; (2) report back to work in a timely manner or submit a timely application (oral or written) for reemployment; and (3) have been separated from service under “honorable conditions.”
- Termination for “just cause” only: Employees returning from military leave of greater than 30 days, including traditionally at-will employees, may only be terminated for “just cause” for a period of up to one year (depending on the length of the leave). After the applicable time period, the employee’s employment can revert back to at-will employment.
- Notice: Employers are required to inform employees of their rights, benefits, and obligations under USERRA, which they may do by posting a notice where employee notices are customarily placed. A poster satisfying this requirement can be downloaded from the DOL’s website: http://www.dol.gov/vets/programs/ userra/poster.htm.
USERRA applies to voluntary as well as involuntary service, in time of peace or war, and to virtually all civilian employers, regardless of size, including the federal government, state and local governments, and private employers. Supervisors or managers who violate USERRA may be held individually liable.