In the spirit of Veteran’s Day, we thought a brief summary of the Uniformed Services Employment and Reemployment Rights Act, or USERRA for short, would be appropriate.
USERRA protects employees who serve in the uniformed services, which include the active and reserve components of the various branches of the military and national guard. USERRA’s protections come in two forms. First, employers are prohibited from discriminating against an employee on the basis of his or her uniformed service. In other words, an employer cannot discharge, refuse to hire, or otherwise treat an employee negatively because he or she has served, is serving, or will serve in the uniformed services.
Second, for employees who leave their employment for uniformed service, USERRA requires that they be reemployed promptly upon their return from uniformed service. Under what is known as the “escalator principle,” the employee is entitled to reemployment in the position in which he or she would have been employed had he or she not left for military service. In a nutshell, the employee steps back into the employment relationship as if he or she had not left. Where a promotion is reasonably certain to have occurred, such as a change in paygrade based on years of service, the employer must place the returning service member in the higher or escalator position. If the employee is not qualified for the escalator position, the employer must make a reasonable effort to get the employee qualified. If the employee cannot become qualified through reasonable efforts, then the employer must place the employee back in his or her original position or one of like seniority, status, and pay.
The reemployment obligation has a few technical details. The employee’s total uniformed service at that employer cannot exceed five years; however, service under certain types of military authority is excepted from the five-year calculation. The employee must notify the employer promptly upon learning of uniformed service unless prompt notification is precluded by military necessity or otherwise impossible or unreasonable under the circumstances. The employee may, but cannot be required to, periodically check-in while on military leave. Upon return from military leave, the employee must return to work or notify the employer that he or she desires reemployment. The timeframe for that notification varies from the next regularly scheduled workday following leave (for short periods of military leave) up to 90 days following the completion of military leave for longer leaves of absence.
To avoid the reemployment obligation, the employer must prove that its circumstances have changed such that reemployment is impossible or unreasonable, or demonstrate that the employer would incur undue hardship to reemploy the service member. These defenses are not interpreted broadly.
Finally, a few points about USERRA that are often missed.
1. The employee’s motivation for uniformed service is not relevant to the reemployment rights. Whether the employee voluntarily enlists, is involuntarily called to active duty out of retirement, or anything in between, as long as the employee’s total service and discharge characterization meet the USERRA requirements, reemployment is required.
2. An employee who is separated from uniformed service with a dishonorable or bad conduct discharge, or under “other than honorable” conditions is not entitled to USERRA’s protections.
3. An employee may use accrued vacation or other paid leave while on military leave, but the employer cannot mandate that the employee use paid leave.
4. An employer may not use the fact that it hired a replacement worker as a basis to deny reemployment to the service member. A replacement worker does not constitute changed circumstances or undue hardship.
5. USERRA contains specific provisions regarding how employers must handle benefit contributions for employees on and returnign from military leave.
Finally, a big THANKS to all our current service members and veterans. We appreciate everything you do and have done for our country!