The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides employment protections to military veterans and reservists. These include requirements that employers restore employees to work following certain military leaves. USERRA’s “escalator principle” is unique among employee leave protections. Let’s look at what it means for employers.
USERRA Coverage
USERRA applies to all U.S. employers, regardless of size.
Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services.
However, per applicable regulations, it does not cover: “Employees whose employment before military service was for a brief, non-recurrent period, when there was no reasonable expectation the employment would have continued indefinitely or for a significant period.”
Under USERRA, “uniformed service” includes
1. Armed forces, including:
- Army and Army Reserve;
- Navy and Naval Reserve;
- Air Force and Air Force Reserve;
- Marine Corps and Marine Corps Reserve; and
- Coast Guard and Coast Guard Reserve.
2. National Guard, which includes the Army National Guard and the Air National Guard, when the
service member is engaged in:
- active duty for training;
- inactive duty training; or
- full-time National Guard duty.
3. Commissioned Corps of the Public Health Service.
4. Any other category of persons designated by the President in time of war or national emergency.
“Service” in the uniformed services includes
- Active duty;
- Active duty for training;
- Initial active duty for training;
- Inactive duty training;
- Full-time National Guard duty;
- Submitting to an examination to determine an individual’s fitness for these services;
- Funeral honors duty performed by National Guard or Reserve members;
- Duty performed by intermittent disaster response personnel for the Public Health Service and approved training to prepare for this service; and
- Service as an intermittent disaster response appointee of the National Disaster Medical System when participants are activated under federal authority or attending authorized training to support their federal mission.
Notice of Military Service
USERRA only provides leave protections to employees whose employers received advance notice of the employees’ intent to take military leave.
Either the employee or an authorized military officer may provide the notice. The notice need not be formal or in writing. Often, however, employers obtain copies of military orders or training notices.
The Department of Defense encourages that the employer receive notice at least 30 days before the leave starts. But no specific notice period is required.
No advance notice is required if it cannot be given because of military necessity or it is impossible or unreasonable to give advance notice.
Reemployment Rights
Employers must reemploy an employee who was on leave for service in the uniformed service where the:
- Employer received advance notice of the military service;
- Employee’s cumulative military service does not exceed 5 years during employment with the employer (with some exceptions);
- Employee returns to work or seeks reemployment promptly; and
- Employee was not separated from the uniformed service for a disqualifying reason.
Timely Return to Work
The time within which employees must return to work following military leave depends on the length of their leave, as follows.
- Less than 31 days: Employee must report to work at the beginning of the first regularly scheduled workday starting at least 8 hours after they return home.
- 31 to 180 days: Employee must apply for reinstatement within 14 days after completing military service.
- More than 180 days: Employee must apply for reinstatement with 90 days after completing military service.
Employees may have additional time where circumstances make it impossible to return to work in the stated time periods. For example, injured service members may have up to two years or more to return to work following military service.
Employees do not automatically lose reinstatement rights if they do not report back to work within the applicable time periods. Rather, they would then become subject to the employer’s rules about unexcused absences.
Employers must reinstate qualifying employees within two weeks (or sometimes less), barring unusual circumstances.
“Escalator Principle”
Laws that require employers to reinstate employees following leave usually only require reinstatement to the same or comparable position. USERRA is different. It requires employers to reemploy service members in the position they would have attained had they not been absent for military service. The employee must receive the same seniority, status, pay, rights, and benefits they would have achieved but for the military leave.
This “Escalator Principle” applies even if it requires the employer to bump another employee, train the returning service member, or find another comparable position if the “escalator” position no longer exists. In the latter situation, the employer’s obligation depends on the length of the military service, whether the employee is disabled, and the employee’s qualifications.
Changed Circumstances and “Undue Hardship”
Employers do not always have to reinstate employees following covered military leaves.
This includes situations where the employer’s circumstances have changed such that reemployment would be impossible or unreasonable. For example, a company that has conducted a reduction in force that would have included the employee may not have to reinstate the employee just because he was on military duty.
Employers likewise do not have to train or retrain returning service members to qualify them for reemployment if it would cause an undue hardship.
Action otherwise required under USERRA creates an undue hardship if it requires significant difficulty or expense. The analysis involves many factors, such as overall financial resources of the employer and cost of the required action.
Protection from Termination
An employer may not terminate a reinstated employee whose military service lasted more than 30 days “without cause” for a period of:
- 180 days, if the military service lasted 31 to 180 days, or
- One year, if the military service lasted 181+ days.
“Cause” may exist based on misconduct or other legitimate nondiscriminatory reasons.
USERRA’s general anti-discrimination principles still protect employees whose military service lasted less than 30 days from discrimination based on their military service. But the employer does not have the initial burden to prove “cause” in that scenario.
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