The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that prohibits employment discrimination on the basis of military service. As part of its protections, USERRA provides returning service members with the right to reemployment at their pre-service place of work. If you believe that your employer has violated your USERRA right to reemployment, contact Kraemer, Manes & Associates. Our experienced USERRA attorneys will fight to ensure that you are not faced with any disadvantages upon returning from your service duties.
The Right to Reemployment – The Basics
Employees who have been absent from work as a result of their obligations to a uniformed service are entitled to reemployment at their pre-service place of work. An employer may not deny reemployment to a returning service member based on the timing, frequency, or duration of that service member’s obligations to a uniformed service, so long as:
- Service obligations do not exceed five years;
- The service member provided his or her employer with reasonable notice of service obligations, unless such notice was precluded by military necessity or was otherwise impossible or unreasonable;
- The employee was not released from service under dishonorable conditions; and
- The employee reported back to his or her pre-service job in a timely manner, unless such reporting was impossible or unreasonable.
CALCULATING THE FIVE-YEAR LIMIT
USERRA’s right to reemployment extends for a maximum of five years with one employer, with a few narrow exceptions. This five year limit is cumulative and restarts every time the service member switches civilian employers.
Some activities do not count toward the five-year limit. Such activities include:
- Military-certified, required drills and annual training that the uniformed service has deemed necessary for professional development or skill;
- Service in war or national emergency, whether such service is voluntary or involuntary;
- Service in excess of five years necessary to fulfill an initial period of obligated service; and
- Service from which the individual, through no fault of his or her own, is unable to obtain release
There are few formal requirements for effective notice of leave to a service member’s employer. The service member requiring leave should notify his or her civilian employer as far in advance as possible given the circumstances. However, there is no official deadline for providing notice to an employer, so long as it is given sometime in advance of military leave. Notice can be given either by the service member himself or herself, or it may be given by a responsible officer from the service member’s unit. The notice does not need to be in writing, but having written evidence that notice was given to an employer can prevent future disputes.
Exceptions to the notice requirement are construed narrowly. The only situations in which the requirement will be waived include situations of military necessity (such as a classified deployment) or “impossibility or unreasonableness.” When these exceptions do arise, the service member must give his or her employer notice of leave as soon as is reasonably possible.
Reporting back in a timely manner requires that a returning service member notify an employer of his or her return based on the following time restrictions:
- For service of up to 30 days: must report back by the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required for safely travelling home and eight (8) hours for rest;
- For service between 31 and 180 days: must apply for reemployment within 14 days of completing military service;
- For service over 180 days: must apply for reemployment within 90 days of completing military service.
These deadlines may be extended for up to two (2) years for those who are hospitalized for a service-related illness or injury. Application for reemployment need only indicate a returning service member formerly worked for the employer, has returned from military service, and is exercising his or her right to reemployment under USERRA.
If a returning service member is late reporting back to his or her civilian employer, he or she does not lose all USERRA protections. However, the civilian employer will be allowed to treat the late reporting like any other unauthorized absence under the employer’s attendance policy.
Rights and Benefits
USERRA provides that a returning employee is entitled to all the rights and benefits to which he or she would have been entitled if he or she had never left to participate in uniformed service. This concept is known as the “escalator principle.”
Specifically, a returning service member is entitled to:
- Prompt reinstatement;
- Accrued seniority and any accompanying benefits, including rate of pay and pension vesting;
- Health insurance coverage;
- Other non-seniority benefits normally offered to employees on a non-military leave of absence; and
- Any necessary training, retraining, or other accommodations
Post-Service Qualifications and Training
Returning service members often return to work to find that their skills are a bit rusty or they are unsure how to use new technology or equipment in the workplace. Other times, returning service members have incurred a disability as a result of their uniformed service duties.
When these situations arise, an employer must make reasonable training efforts to ensure that a returning service member is qualified for his or her position upon returning to work. “Reasonable efforts” include any effort that would not impose an undue hardship on the employer, as determined by the financial stability of the employer in relation to the difficulty and expense of the necessary training/retraining.
Where the returning service member cannot qualify for the position to which he or she is entitled, the employer must reemploy him or her in the position that most nearly approximates the position to which that service member is entitled in status, pay, and seniority, and for which the service member qualifies.
Exceptions to the Right to Reemployment
There are a few exceptions to USERRA’s right to reemployment. Employers are not required to reemploy a returning service member if:
- The employer’s circumstances have changed in such a way that reemployment would be unreasonable or impossible;
- Reemployment would cause undue hardship to the employer or would necessitate the creation of a useless job; or
- The service member’s employment with the employer was of a temporary nature, and there was never any reasonable expectation that employment would continue for an extended duration.
To determine whether or not reemployment would be “unreasonable or impossible,” the relevant question is whether reemploying the otherwise qualified returning service member would necessitate recreating a useless position. If a returning service member’s job class has been completely eliminated from the employer’s organizational structure, then a court would likely find that reinstatement would be unreasonable. However, if a position is still relevant to the organization but has been filled by another employee, or if the returning service member’s job duties have been absorbed by various other employees throughout the company, the standard for unreasonableness would likely not be met and the employer would be required to reemploy the service member.
In determining whether reemployment would cause “undue hardship,” courts will look to various factors, including the nature and costs of reinstatement, the employer’s overall financial resources, and the overall size and financial stability of the employer.
The exception for temporary, non-recurrent employment is construed narrowly to include only situations in which the employee truly was only meant to perform work for a short, specified duration. The exception does not apply to recurrent part-time or seasonal workers.
No service member should be forced to endure employer discrimination because of his or her military duties. If you believe that your employer has discriminated against you in violation of your right to reemployment under USERRA, contact Kraemer, Manes & Associates at (412) 626-5626. Our experienced employment military lawyers know how to combat employer discrimination and will fight to make sure your rights are protected.