USERRA Rights and Obligations: Traps for the Unwary Employer

By Susan E. Coleman and Brian I. Hamblet

Many law enforcement agencies employ former and/or reserve military service members in their organizations.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides rights and protections for veterans and active members of the armed forces.  While Human Resource managers may be familiar with USERRA, other supervisors may be less familiar with employers’ obligations under this law, codified in 38 U.S.C. §§ 4301-4355.  As the provisions in USERRA are quite broad, it contains many traps for the unwary.

USERRA was enacted in 1994 but it is only the latest in a series of statutes originating in the 1940s that were designed to “encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service . . . to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers . . . by providing for the prompt reemployment of such persons upon their completion of such service … and to prohibit discrimination against persons because of their service in the uniformed services.”  (38 U.S.C. § 4301.)

USERRA guarantees that those returning from military duty will have a right of reemployment.  It also requires that military members shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of military membership, application, service, or obligation.  It also provides for the position(s) to which returning service members are entitled upon their return.  USERRA essentially turns military service into a quasi-protected class.  It prohibits discrimination against employees because of the employee’s past, present, or future application for, or membership in, a uniformed service.  It also prevents employers from terminating a service person without cause within one year of reemployment, even if the job is otherwise at will.

USERRA applies to virtually all employees, regardless of their length of employment.  It even protects part-time positions, unless the job is for a brief and temporary time period.  It covers employees who are U.S. citizens and also resident aliens, including those working in a foreign country if the employer is incorporated in the USA or controlled by such an entity.

USERRA protects members of the uniformed services, which includes the Army, Navy, Air Force, Marine Corps, Coast Guard, and the Reserves for each of these branches, National Guard, Air National Guard, commissioned corps of the Public Health Service, and any other categories designated by the President in time of war or national emergency.  While USERRA does not apply to “state” military duty or Gubernatorial call-ups of the National Guard, there are state statutes that provide similar protections for such duty.  USERRA protection also covers leave for executive, managerial, and professional employees, leaving the employer no allowable exception for “key employees.”

USERRA generally applies to all U.S. employers, public and private, and it makes no exception for small employers.  The term “employer” is defined as “any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities.”  An employee cannot contract to relinquish his or her rights under USERRA.

The employee (or an appropriate officer of the uniformed services) must provide advance notice of duty to the employer.  This notice can be verbal or written and there is no strict time period for the requisite notice.  The Department of Defense recommends 30 days advance notice when feasible, but USERRA requires only notice “as far in advance as is reasonable under the circumstances.”  No notice is required when such notice is precluded by military necessity or if the notice is otherwise impossible or unreasonable under the circumstances.

USERRA limits the military leave that an employee may use and still be entitled to reemployment rights at five years. However, this time limit is expanded for many exceptions, including training, federal requirements, time waiting for orders, and other circumstances.  Depending on the amount of time the employee is on military leave, the requirements for the deadline to apply for reemployment vary.  If the military member is absent from work between 31 and 181 days, s/he must report back for work or reapply for work within 14 days.  If the absence is longer, the employee must report back or reapply within 90 days.  This time period can be extended up to two years if the employee is injured and needs time to heal. Note that the Ninth Circuit has held that an employee need only apply for reemployment but does not need to cite to USERRA to properly exercise his reemployment rights.

When an employee is called up for military duty, s/he does not need to provide the employer with proof. However, after returning from leave, the employer may require documentation.  The employer may not refuse to reemploy the returning service person on the basis that another employee was hired to fill the veteran’s position during the absence, even if the replacement person must be terminated to effectuate reemployment.  The employer is required to “promptly” reinstate the service member, which is typically interpreted as within two weeks absent unusual circumstances such as return after years of leave.  The employee is entitled to be placed in the position that he or she would have attained if their employment had not been interrupted by military service.  Thus, the employer may have to promote the employee and, if training is needed to qualify for the new position, the employer must make “reasonable efforts” to help the employee qualify.

USERRA does not require employers to pay employees on military leave; instead, they are treated as being on an unpaid leave of absence.  Employees on leave may elect to continue health coverage if they pay the premium for the insurance, similar to COBRA coverage.  Employers must continue employee pension benefits during the military leave, as if continuously employed during the leave period.  However, employers are not required to provide accrual of vacation, sick time, or personal time, unless these benefits are provided to others on leave of absence.

If an employee is disabled during military service, an employer must make reasonable accommodations for the employee.  If this is impossible due to disability, the employee must be reemployed in a position of equivalent seniority, status and pay for which he or she is qualified or could become qualified, or in a position that is the “nearest approximation thereto.”

There are very few exceptions to the USERRA requirements for reemployment.  One exception is if the employee volunteered for military service and is absent for more than five years, not counting training.  Reemployment is not required if the employer’s circumstances have radically changed, so as to make employment impossible or unreasonable, or if retraining or accommodating a disabled person would pose an undue hardship on the employer.  Reemployment also is not required if the employee was separated from military service with less than an honorable discharge.

Currently, there is no statute of limitations for lawsuits based on USERRA.  This, coupled with the extremely generous protections for employees, has caused a dramatic increase in the USERRA lawsuits since the statute was enacted.

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