In an era when the United States increasingly relies on Reserve and National Guard components to meet its military obligations employers need to be aware of their obligations to reemploy service men and woman returning from periods of military service. The Uniform Services Employment and Reemployment Rights Act (“USERRA”) provides uniformed service members with the right to reemployment after an absence for service in the uniformed services. Subject to the requirements of USERRA, service men and woman returning from periods of active service are entitled to reemployment in the job that they would have attained had they not been absent for military service.
Who is eligible for reemployment?
Reemployment rights under USERRA extend to persons who have been absent from their position of employment because of “service” in the uniformed services.” This includes the performance of duty on a voluntary and involuntary basis in a uniformed service, including:
- Active Duty
- Active Duty for Training
- Initial Active Duty for Training
- Inactive Duty Training
- Full-time National Guard Duty
- Absence from work for an examination to determine an individual’s eligibility for active duty.
- Funeral Honors Duty performed by Reserve or National Guard members.
- Duty performed by intermittent employees of the National Disaster Medical System, when activated for a public health emergency, and for approved training to prepare for such an emergency.
The “uniformed services” consist of the following components:
- Army, Navy, Marine Corps, Air Force, or Coast Guard.
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or National Coast Guard Reserve.
- Army National Guard or Air National Guard.
- Commissioned Corps of the Public Health Service.
- Any other category of persons designated by the President in time of war or emergency.
An Employee’s Obligation to Give Notice of Service
Pursuant to USERRA employees are required to give their employers advance notice of qualifying military service. Notice may be given orally or in writing. The required notice may be given by the employee or by an appropriate officer of component of the military in which the employee will be serving. An employee’s obligation to give advance notice of service is waived if military necessity prevents giving the required notice or if giving the required notice is otherwise unreasonable or impossible.
An Employee’s Obligation to Report Back to Work in Timely Manner
The time limit for an employee to return to work pursuant to USERRA depends on the duration of the employee’s service.
Service of 30 days or less
An employee returning for a period of service of 30 days or less, with the exception of fitness-for-service examinations, is required to report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service. The preceding requirement is subject to allowance for safe travel home from military duty and an eight hour rest period.
An employee’s time limit to report to his or her employer after an absence for a fitness-for-service examination is the same as above regardless of the length of the employee’s absence from his or her employment.
Service 31 to 180 days
An employee must report to their employer within 14 days unless timely application would be unreasonable or impossible through no fault of the employee’s.
Service of 181 or more days
An employee must report to their employer within 90 days after the completion of service.
The reporting and application deadline listed above may extended for up to two years for employee hospitalized or convalescing because of a disability incurred or aggravated during military service.
Consequences for Failing to Report in a Timely Manner
Employees failing to report to their employers in a timely manner after the conclusion of their military service do not automatically forfeit their reemployment rights under USERRA, instead they are subject to their employer’s unexcused absence policies. In other words the sanction received by the returning employee for failure to report to his or her employer in a timely manner is dictated by the employer’s existing unexcused absence policy.
What Documentation Must Employee Provide Upon their Return from Service
An employer has the right to request that an employee who has been absent for military service for a period of 31 days or more to provide the following documentation:
- Documentation evidencing the fact that an employee’s application for reemployment is timely;
- Documentation demonstrating that the employee has not been absent for military service for more than the five-year limitation;
- Documentation that employee’s release from military service was not for a disqualifying reason, i.e. a less than honorable or dishonorable discharge.
If an employee fails to submit the required documentation they are still entitled to reemployment pursuant to USERRA. However, should the employer later obtain documentation demonstrating that the employee failed to meet one of the reemployment conditions the employee may be terminated effective the date of the disqualifying information.
How Eligible Employees are to Be Placed in a Job
The manner in which employers must place returning employees is based on an employee’s length of military service.
Service 90 days or less
Employees absent for 90 days or less must be employed in the job they would have held if they had remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer. If an employee cannot be qualified after reasonable efforts by the employer for the position they would have attained if they had remained continuously employed then they may be placed in the position they held prior to their absence for military service. If an employee after reasonable efforts cannot be qualified for either of the above described positions the employee may be placed in a position that is the nearest approximation of the two positions above which the employee is able to perform with full seniority.
Service 91 days or more
Employees absent for 91 days or more are entitled to the same priorities of placement with one important distinction. An employer instead of placing an employee in the position they would have attained if they had remained continuously employed may place an employee in a position of like seniority status and pay.
Employers should bear in mind that an employee’s entitlement to the position they would have attained had they remained continuously employed could lead to a layoff if the position that employee would have attained is subject to a reduction in force.
Employee Causes of Action Under USERRA
USERRA prohibits discrimination on the basis of past, current, or future military obligations. This ban on discrimination is broad and extends to most areas of employment, including:
USERRA protects from discrimination all past members, current members, and persons who apply to be a member of any of the branches of the uniformed services. Under USERRA employees are also protected from retaliation for asserting their rights under USERRA.
Government Assisted Investigations and Court Actions
Under USERRA the Veterans’ Employment and Training Service (“VETS”), a component of the Department of Labor, is empowered to conduct investigations of complaints relating to USERRA compliance. Pursuant to USERRA the VETS has authority to copy employee and employer records relevant to an investigation, conduct interviews, and issue subpoenas for the attendance of witnesses and the production of documents. Employers should bear in mind that unlike many other employment related statutes, an administrative investigation is optional under USERRA and is not a necessary predicate to a private suit against an employer by an aggrieved employee.
Upon conclusion of any VETS investigation an employee may request that their complaint be forwarded to the Attorney General for possible court action by the government on behalf of the employee.
Regardless of whether an employee chooses to pursue a complaint through VETS, an employee may file a private law suit alleging a violation of USERRA. Employers found to have violated the requirements of USERRA may be found liable for back pay and lost benefits. Additionally, the court may award double damages in cases in which the court finds the violations were “willful” on the part of the employer. Finally, under USERRA courts have the discretion to award successful plaintiffs their attorney fees, expert witness fees, and litigation expenses.
USERRA Compliance Should be a Priority for All Employers
Compliance with the requirements of USERRA should be a priority for all employers. In an era when our nation is involved in two protracted foreign military conflicts, the deployment of employees for military service has become a common workplace issue. Furthermore, the expense associated with an administrative investigation or formal lawsuit for non-compliance far outweighs the marginal cost associated with a proactive compliance strategy by employers.