I. INTRODUCTION
This article serves to summarize the “rights” created by the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which is a major federal anti-discrimination law found at 38 U.S.C. §§ 4301-34
Generally, USERRA prohibits employment discrimination against persons because of service and provides that protected employees may not be denied initial employment, reemployment or retention in employment, promotion or any benefit of service, application for service or obligation to the “uniformed services” (which consists of the Army, Navy, Marine Corps, Air Force, Coast Guard, the Reserve components of each of the previously recited branches of the military, Army and Air National Guards, Commissioned Corps of the Public Health Service and persons designated by the President in time of war or national emergency). In addition, the law protects disabled veterans, requiring employers to make reasonable efforts to accommodate a disability.
USERRA defines “service in the uniformed services” to mean the performance of duty on a voluntary or 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 a examination to determine a person’s fitness for any of the above-recited types of duty or funeral honors duty performed by National Guard or Reserve members.
For purposes of the USERRA, the term “employer” includes supervisors and managers in certain situations. As such, supervisors and managers can be held individually liable under the USERRA.
II. ADVANCE NOTICE OF MILITARY SERVICE
Unless impossible, unreasonable or military necessity prevents the giving of notice, USERRA requires an employee to give his or her employer advance notice of military service, either orally or in writing. The notice may be given by either the employee or by an appropriate officer of the branch of the uniformed service in which the employee will be serving. The employee is not required to decide, prior to leaving for service, whether he or she will seek reemployment upon release from service.
III. DURATION OF SERVICE
Generally, the cumulative length of service away from employment may not exceed five years, however there are eight categories of service exempt from this time period. These exemptions include: service from which a person, through no fault of their own, is unable to obtain a release within the five year limitation; if the employee was hospitalized for or is convalescing from an illness or injury incurred in, or aggravated during military service, the limit may be extended up to an additional 2 years; service under an order to, or to remain on active duty (except for training) because of war or national emergency as declared by the President of the United States or the U.S. Congress; drills (inactive duty training), annual training, involuntary active duty extensions (including training certified as necessary by the service); and recalls due to a war or national emergency are not counted in the 5-year cumulative total.
IV. BENEFITS AND RIGHTS
A service member called to active duty is treated as if he or she is on a leave of absence. While away from employment, an employee is entitled to participate in all rights and benefits (that are not based on seniority) available to employees on non-military leaves of absence, whether paid or unpaid. If there are employer funded benefits that other employees would pay while on a leave of absence, the service member may also be required to pay the employee cost of such benefits. There are specific requirements of USERRA in regard to the funding and continuation of pension or retirement plans, health benefits and vacation pay. For the first 30 days of leave, employers must continue health insurance and other benefits for employees in the military. After 30 days, employees must have the option to continue COBRA-like health benefits at their expense. These COBRA-like continuation rights must be provided by all employers, including those with fewer than 20 employees. Employees who go on military leave may continue coverage for a period that is the lesser of 24 months or a period that ends the day the individuals fail to apply for, or return to, a position of employment. As under COBRA, a person who elects to continue coverage may be required to pay up to 102 percent of the full premium. However, the federal law states that a person on military leave for less than 31 days may not be required to pay more than the active employee share, if any, for such coverage, unlike COBRA, which allows employers to charge 102 percent for any COBRA period, no matter how short. Whether or not an employee on military leave takes continued coverage, no exclusion or waiting period may be imposed on the individual’s return from service. The supplies to the employee, spouse, and any dependent coverage. Plan exclusions and waiting periods may be imposed for any illness or injury determined to have incurred in or have been aggravated during military service. An employee cannot be required to use earned vacation or similar leave days for military leave of absence.
Reemployment rights are extended to a person who has been absent from employment due to service in the uniformed services. Returning service members must be returned to employment as soon as practicable. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment. Furthermore, the employee must be reinstated to the position he would have obtained if not for his absence due to military service. A reemployed service member is entitled to earn seniority and all rights and benefits based on seniority that would have been earned had he or she remained continuously employed. In addition, a reemployed service member isprotected from discharge, in the absence of just cause, for up to one year upon return from service.
There is a three-part test used to determine reemployment rights of a person who incurred or had disabilities aggravated while in service. USERRA provides some circumstances in which an employer may not be required to reemploy the person, such as when it would be so difficult or expensive as to cause “undue hardship,” however the employer bears the burden of proof in such cases.
An employer must make reasonable efforts to assist a returning service member in becoming qualified to perform the duties of his position. However, an employer is not required to reemploy a returning service member if he is not qualified, after reasonable efforts by the employer, for the reemployment position. “Qualified” means the employee can perform the essential tasks of the position.
A service member does not lose his or her reemployment rights by applying for or obtaining employment with another employer during the period of time in which employment application must be made, as long as the employment is not of the type that would cause the pre-service employer to discharge the service member (e.g., working for a direct competitor in violation of company policy).
Finally, employers are prohibited from reprisal or retaliation against any person who exercises USERRA rights or anyone who assists in the exercise of those rights by testifying or otherwise participating in an investigation, even if that person has no military connection
V. DOCUMENTATION AND REINSTATEMENT PROCEDURES
Although USERRA provides that returning service members be “promptly reemployed,” there are time limits and other criteria in the law with regard to a service member’s return to pre-service civilian employment. When a person is absent from employment because of service of 31 or more days, an employer may request documentation from the returning service member proving that he or she has made timely application for reemployment, has not exceeded service limitation and has been released under honorable conditions. If the documentation is not readily available or does not exist, an employer is still obligated to reemploy the returning service member.
An employer has three statutory defenses to USERRA claims: (1) changed circumstances (such as an intervening reduction in force that would have included the service member); (2) if helping the employee to become qualified for employment would constitute an undue hardship; and (3) if the position the employee vacated was for a brief, non-recurring period, and the employer had no reasonable expectation that the employment would continue.
Civilian employment reinstatement is strictly based on the duration of the uniformed service. For periods of military service up to 30 days, the service member must report back to work at the next regularly scheduled shift on the day following release from the military, safe travel home and eight hours of rest.
For longer periods of services, reinstatement is not necessarily immediate, but should be within a matter of days or at most a few weeks. Following a period of service of 31-180 days, the service member must apply for reemployment within 14 days following release from service. Following a period of service of 181 days or more, the service member must apply for reemployment within 90 days after release from service.
In applying for reemployment, the service member should identify himself or herself, state that he or she left the employer to perform military service, that the service member has completed the service and wants to be reinstated at work. Although the failure to return to work or apply for reemployment within the specified time limits through the fault of the service member does not necessarily forfeit his or her reemployment rights, it does make the person subject to the employer's rules concerning unauthorized absence from work.
VI. NOTICE REQUIREMENT
Employers must provide employees who are eligible for USERRA rights and benefits with a notice of such rights, benefits and obligations. The notice requirements may be satisfied with the posting of a notice in a location where employee notices are customarily posted. A copy of the USERRA notice may be found at several internet sites, including the United States Department of Labor’s USERRA webpage: http://www.dol.gov/vets/programs/userra/poster.htm.
VII. CONCLUSION
The U.S. Department of Labor is the enforcement authority for USERRA and it processes all formal complaints of violations of the law. The law provides for specific fines and penalties for employers violating its provisions. In addition to USERRA, it is important to remember that Nebraska state law also provides rights and benefits for persons on military leave, which should also be consulted. These provisions are found in the Nebraska Military Code (Chapter 55, Article 1).
Further information regarding USERRA may be found at the Employer Support of the Guard and Reserve (“ESGR”) organization’s website (http://esgr.mil/), at the Judge Advocate General’s Legal Services website (http://www.jag.navy.mil/legal_services.htm) and in the “E-Laws” section of the U.S. Department of Labor home page (www.dol.gov). The ESGR Ombudsmen Services Program has been established to provide information, counseling and informal mediation of issues relating to compliance with USERRA. Trained ESGR volunteers and the Ombudsmen Services national staff are available to promptly respond to inquiries and conflicts presented by employees or employers.