On April 27, 1999, President Clinton authorized the activation of up to 33,000 military reservists to support NATO air power in Yugoslavia. These employees who leave their jobs to join the uniformed services, whether called to active duty or because they voluntarily enlist, are guaranteed employment rights and other pay and job protections under federal law. In 1994, the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§4301-4333, was adopted and replaced the previous veterans’ reemployment legislation known as the Veterans Reemployment Rights Statute, 38 U.S.C. §§ 2021-2027. The following outlines employees’ rights to reinstatement following return from military service under USERRA.
USERRA requires employers to grant leave to workers to serve in the U.S. Armed Forces, the various reserve units, or the National Guard. Upon completion of their military service, employees are entitled to be restored to their former jobs with full seniority, or in some circumstances, to a similar position offering the same pay, rank, and seniority. Along with protection of pre-service jobs, returning service personnel are entitled to any pay increases they would have received had their employment not been interrupted by military duty. In addition, USERRA protects service persons’ participation in pension and health care plans and prohibits discrimination in hiring or other employment practices because of an individual’s obligations to perform military service.
Entitlement to Reemployment Rights
USERRA applies to all employers and all employees and guarantees an "unqualified" right to reemployment to uniformed services members returning from duty (voluntary or otherwise), as long as the following conditions are met:
1. The person held a civilian job;
2. the person gave notice (oral or written) to the employer that he or she was leaving the job for services in the uniform services;
3. the period of service did not exceed five years;
4. the person was released from service under honorable conditions; and
5. the person reported back to the civilian job in a timely manner or submitted a timely application for reemployment.
Nonetheless, an employer is not required to reemploy a service member if doing so would be "impossible or unreasonable," or would create "undue hardship" on the company.
Length of Service
Generally, USERRA protects a service member’s right to reemployment for up to five years. This five year time period is cumulative and covers all previous absences from a position with that employer by reason of service in the uniformed services. 38 U.S.C. §4312(a)(2). An individual is not protected who, for example, served for four years of active duty, returned to employment with his or her previous employer, and then entered upon a three year tour of duty.
The law contains a number of exceptions allowing the period of service to exceed five years under extraordinary circumstances (e.g., if additional time is necessary to complete an additional obligated service requirement; the employee was unable to obtain release orders through no individual fault; or additional training is determined necessary by the secretary of the particular service). In addition, training requirements for the National Guard and reserve units are not included in the time limitations. 38 U.S.C. §4312(c).
Job Placement of Eligible Persons
USERRA requires "prompt" reinstatement of returning service members so long as the pre-service job was "permanent" in nature. The particular position to which a returning employee is entitled is based on the length of military service.
If service is less than 91 days, the returning employee must be placed in an "escalator" position, that is, the position they would have obtained had they remained continuously employed. For example, if a person would have been promoted during his/her absence, the person would be entitled to the promotion upon return from service. If a returning employee is not qualified to perform at the higher position after "reasonable efforts" to qualify the worker, the pre-service position must be offered. However, such employees would still retain full company seniority for all purposes.
An escalator position can also be a lower level position, or layoff status. For example, if the person’s position was eliminated in a workforce reduction and the individual would have been subject to lay off, the employer would not be required to reinstate the employee.
If service is greater than 91 days, the employer has the additional option of offering a job of equivalent seniority, status and pay, instead of the position a person would have had.
Employees who return with a service-related disability, are entitled to their escalator position. If, however, after "reasonable efforts," the employee is not qualified for his/her escalator position, the employee must be offered a similar job, with the same seniority, status and pay, as the escalator position even if the length of service is less than 91 days.
Changed Employer Circumstances
USERRA excuses reemployment if an employer’s circumstances have so changed as to make reemployment of the person impossible or unreasonable. The fact that the person’s pre-service job has been filled by someone else does not qualify as a changed circumstance sufficient to terminate the reemployment rights, nor would a lack of vacancies at the time of the person’s application for reemployment.
Application for Reinstatement
In order to qualify for reinstatement, a person must report back to work or apply for reemployment within prescribed time limits. A service member must apply for reinstatement within a "reasonable time" following discharge from the military. Reasonable time is defined by the length of service: If service is less than 31 days; the service member must report to work on the next work day following completion of service plus eight hours, which is allowed for transportation. If service is 30 to 181 days, the service member must apply for reinstatement within 14 days after discharge. If service is 180 days or more, the service member has up to 90 days to seek reemployment.
General Rights and Benefits
A person who is reemployed after military service is entitled to the seniority and other rights and benefits that the person would have received by remaining continuously employed. USERRA states that military service must be treated as a leave of absence and requires employees on military duty to be granted the same rights and benefits that are given to other employees on leave of absences.
Compensation and Benefits
Employers are not required to continue paying employees who are on military leave. However, employees must be allowed to use any vacation, annual or similar paid leave that is accrued prior to the service. 38 U.S.C. §4316(d). As a matter of policy, many employers either continue to pay activated members their full regular pay in addition to military pay, or pay the difference between regular pay and military pay, especially when absence is for a limited period (e.g. two week summer training). Employers with specific policy or contractual provisions that address pay and benefits issues are obligated to abide by those provisions.
Protection Against Discharge
A reemployed individual may not be discharged except for cause for one year following reinstatement if the period of service is 181 days or more. This protection lasts six months, if the period of service was between 30 and 181 days.
Seniority continues to accrue during service as if an employee were still on the job.
Under USERRA service members are entitled to 18 months of health care continuation coverage due to separation of service from the employer. COBRA and USERRA coverage periods run concurrently, not consecutively. An employee requesting continuing insurance coverage may be required to pay the entire cost of the benefit, unless the service is for 30 days or less in which the employer is required to continue the insurance coverage and the employee may only be required to pay the employee share, if any.
USERRA requires that pension plan accrual and vesting continue during a worker’s military service as though no break in service had occurred. Employers are required to make any contributions to employee pensions that the employer would have made if the employee had not been absent from military service. Returning veterans must be credited with the time they spent in military service for purposes of computing pension benefits. If there is an employee contribution portion in the plan, the employee is entitled to "repay" such contributions when they return from service. The employee has up to three times the duration of the military service, but no longer than five years, to make such repayment.
Remedies Under the Act
An employer can be ordered to compensate the employee for any loss of wages or benefits due to noncompliance with the laws, plus liquidated damages if a court determines that the violation was willful. Damages can also include attorney and expert witness fees.
USERRA defines ‘employer’ to include: any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities; or any person, institution, organization, or other entity to whom the employer has delegated performance of employment-related responsibilities; the Federal Government; a State; or any successor in interest to a person, institution, organization, or other entity referred to above.
USERRA defines ‘employee’ to include any person employed by an employer. Such term includes any person who is a citizen, national or permanent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the Untied States.
Deborah F. Birndorf is an Associate at Gardner, Carton & Douglas, Chicago. Her practice is concentrated in Labor and Employment Law and Litigation. She received her Undergraduate Degree in 1988 from UCLA, her MBA in 1991 from New York University and her Law Degree in 1993 from Washington University. She may be reached at email@example.com.