Rights Of Employees Requiring Military Leave: An Update To The Uniformed Services Employment And Reemployment Rights Act

08/06/2009 / Bruce J. Douglas, Chris M. Heffelbower and Breanna L. Christensen*

In light of the United States’ ongoing military commitments in Iraq and Afghanistan, employers are likely have an employee who is planning to enlist or a returning member of the uniformed services. Employers need to be aware of the strict guidelines the law imposes for an employer whose employees take military leaves of absence.

Employers may have questions about the federal law regarding military leaves of absence and the nature of the legal obligations imposed by the law. The purpose of this report is to provide a summary of the federal law.

What is USERRA?

The federal law that protects the employment rights of persons serving with the U.S. Armed Forces is the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq. (“USERRA”). USERRA was amended in October 2008 by the Veterans Benefits Improvement Act of 2008. The law provides rights to employees facing military leave or returning from military service, as well as obligations imposed on employers when their employees are either leaving or returning from military service.

The statute is designed to protect the employment of military personnel who are called to active duty for either active military operations or regular training during peacetime. Accordingly, Congress has said that the purpose of USERRA is to encourage non-career military service by eliminating or minimizing the disadvantages to non-military careers and to prohibit discrimination and retaliation as a result of uniformed service.

The “armed forces” includes any member of the four traditional branches of service, the National Guard, the commissioned corps of the Public Health Service and any other category as designated by the President in the time of war or national emergency. USERRA’s protections extend to a service member’s absences related to fitness exams and funeral honors duty. The protections, however, are not available for a service member who is discharged dishonorably or on account of bad conduct.

Specific Protections

USERRA requires all public and private employers to provide accommodations to employees who must take military leave, reemploy them upon their return and protect their benefits in the interim. More specifically, USERRA entitles all persons who are called to active duty, or who enlist, to the following protections:

• Upon completion of military service or honorable release, the right to apply for reemployment to the same position held immediately prior to the leave of absence, or to a position of the same seniority, status and pay.

• No loss of seniority and eligibility for employee benefits as a result of the leave or absence.

• Discharge only “for cause” for a period of time, either 180 days or one year, depending on the length of the employee’s period of service.

Employees are entitled to these leave and reemployment rights regardless of whether they were active in the military prior to employment or whether they chose to enlist while already employed. As a result of USERRA’s broad protection, employers should err on the side of caution in determining whether to afford returning service members the protection of USERRA.

USERRA also requires all employers to provide notice of the rights and benefits of the law to all employees. The requirement may be met by a general posting of notice where employers usually place notices for employees.

The Right To A Leave Of Absence

Under USERRA, certain employees are entitled to leave their jobs to enter military service. Courts broadly interpret the eligibility of employees whose employment was reasonably expected to continue.
The employer must receive advance written or verbal notice from the employee about his or her intent to take leave for military service obligations. The requirement of notice is not required if notice is prevented by military necessity or is impossible or unreasonable.

As a general rule, USERRA has capped the maximum duration of a mandatory military leave at five years, although there are exceptions to the types of absences included in the five year limit. The five year limit includes both cumulative or all at once leaves of absence.

While the employee is on a leave of absence, the employer is not required to pay wages to the employee. The exception under USERRA is that salaried employees who perform any services for an employer in a week are entitled to be paid for the entire week’s worth of pay. Employers who reduce a salaried employees’ pay can unintentionally jeopardize the position’s exemption from other federal laws, including the Fair Labor Standards Act.

Many states, including Minnesota, also have additional laws requiring paid absences for employees who are called to military service. USERRA allows states to enact laws that provide greater rights and benefits than those under USERRA, however, contracts, policies, and state laws cannot reduce or limit the rights and benefits protected by the law.

The Right To Reemployment- The Key Protection

USERRA requires all employers to promptly reemploy individuals who served in the uniformed services. “Reemployment” means that that employee must be reemployed in the position they would have attained but for the leave or absence. If the veteran’s length of service exceeds 90 days, the position may be one of like seniority, status and pay to the position he or she would have obtained had the employment been continuous.

The employer is required to provide the employee with reasonable efforts to qualify the person if the employee is not qualified to perform the duties of the position of like seniority, status and pay.
The duty to reemploy is triggered if the employee provides adequate notice of the intent to return to work. What is adequate depends on the length of the employee’s military service:

• If the veteran served 30 days or less, he or she must report to the employer no later than the beginning of the next work period following the end of service, plus eight hours for transportation.

• If the veteran served 31 days to 180 days, he or she must apply for reemployment within 14 days of completing service or the next full calendar day when submission of the application is not impossible.

• If the veteran served more than 180 days, he or she must apply for reemployment within 90 days after the completion of the period of service.

There is an exception to the time limit for notice in the event the veteran is hospitalized or healing from injuries or illness received during uniformed service. In that case, the notice time is extended to two years or until they recover, whichever is shorter.

Employers may request documentation from the employee upon his or her reemployment application, including information to establish that:

• The employee’s application is timely.

• The employee has not exceeded the five year leave of absence limitation.

• The employee was not dishonorably discharged or dismissed on account of bad conduct.

However, the failure of an employee to provide documentation because the papers do not exist or are not readily available does not provide a basis for refusing to reemploy the employee.

Under USERRA, an employer is not required to reemploy a veteran in the event that the employer’s circumstances have so changed as to make employment impossible or unreasonable or where the employee had no expectation of continuing employment.

An employer who has more than one employee returning from a leave of absence should give priority for reemployment to the service member who was the first to leave the position. USERRA also provides an exception to reemployment in the event this rule of prioritizing returning veterans would impose undue hardship on the employer.

The burden is on the employer to demonstrate circumstances that make reemployment impossible, unreasonable or create undue hardship for the employer.

Rights To Benefits and Seniority

Along with providing employment, the employer must also provide the returning veteran with benefits and seniority he or she would have obtained as a result of continuous employment. In other words, the employer must treat the employee as though he or she never left when calculating and determining eligibility for benefits.

This requirement has been referred to as the “escalator principle,” meaning that a returning employee must be reinstated at the same level on the career escalator that he or she would have attained bur for his or her military leave. In this regard USERRA contains extensive requirements for employers to provide retroactive contributions to employee pension plans.

Health insurance benefits must be continued during military leaves of less than 31 days. For leaves in excess of 31 days, USERRA requires that employees on military leave be required to continue employer-sponsored coverage of individual and family benefits for themselves and their dependents for up to 18 months. Military leave is considered a qualifying event for COBRA purposes, but the employer must pay the same portion of the cost of coverage as it does for an active employee for the first 30 days.

While USERRA does not require an employer to pay an employee taking a military leave of absence, some private employers may, and in some states, public employers are required to, continue wages of the employee for a time.

In terms of seniority, the employer must provide a returning veteran with a job of equal pay and seniority. In the event that the employer was forced to lay-off individuals or close portions of the business, the employer may still be subject to the requirements of USERRA.

This is because USERRA applies the escalator principle. It is possible that if the employee had not been on leave, he or she could have applied for and been accepted for another position. An employee whose position is no longer available may also be entitled to a more senior position upon his or her return from service because seniority is considered as though the employee never left.

It is important to note that USERRA does not require an employer to provide rights to a returning employee that the employer would not have otherwise provided. General layoffs and closures affecting employees which would have impacted the returning employee, regardless of whether he or she had been on military leave, will not usually trigger the rights of USERRA.

Discharge Of Returning Employees

USERRA limits an employer’s ability to discharge an employee. If the employee served 180 days in the military, an employee may not be discharged without cause for one year.

If the employee served less than 181 days, discharge may only occur for cause during the first 180 days of reemployment. This requirement supersedes contractual agreements by private sector employers and employees where the employees are considered “at-will” employees.

Penalties For Violations

Employers may not discriminate against or take adverse action against any person because he or she has exercised a right provided for in the statute. An aggrieved employee may pursue his or her rights under USERRA through the assistance of the U.S. Department of Labor and the Veterans’ Employment and Training Service, by filing an administrative claim. If the claim is not resolved through the related investigation and negotiation, the employee may pursue a civil action in the courts through the U.S. Attorney General, who is authorized to bring suit to recover lost wages, benefits and reemployment.

If the court finds the employer violated USERRA, the court may require the employer to:

• Comply with provisions of the law.

• Compensate the service member for any loss of wages or benefits.

• Pay double damages in the event the employer’s violations were willful.

Recent amendments to USERRA also allow the court to use its power to issue injunctions, as well as other reasonable relief, in any case where the court determines it is appropriate to fully assert a veteran’s reemployment rights under USERRA.

There are many specific provisions to USERRA that will apply depending upon the circumstances of the employee’s leave and reinstatement. Please contact Larkin Hoffman’s Employment Law attorneys if you require additional information regarding the specifics of your employee’s leave and reinstatement due to military service.

*Ms. Christensen is a 2009 Summer Law Clerk at Larkin Hoffman Law Firm.