As Troop Rotations Increase, Employers are Reminded of Their Obligations
to Employees Entering or Returning from Military Service
By John Scalia and
Michael Buddendeck, Greenberg
Traurig, Tysons Corner Office
View or download the PDF version of this Alert
With thousands of troops scheduled for rotation to and from Iraq and
Afghanistan in the coming months, employers should be cognizant of their
obligations under the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”) to employees who are either returning from or being mobilized
for deployment with Reserve or National Guard units. According to the U.S.
Department of Defense, as of January 2004, there were over 190,000 National
Guard and Reserve troops on active duty. Many of the returning Reservists
and Guardsmen left full-time civilian jobs to answer the call to duty, and
they expect to be reemployed at their former jobs upon deactivation from
|"Generally, USERRA prohibits
discrimination or retaliation against employees based on their past,
present or future military obligations. The law applies to all employers:
government, public, private, large and small."
Generally, USERRA prohibits discrimination or retaliation against employees
based on their past, present or future military obligations. To that end,
an employer cannot deny military leave. The law applies to all employers:
government, public, private, large and small. Many states have laws that
provide similar or greater protections than those granted under USERRA,
and employers must be sure to also review and comply with applicable state
Selected key principles of USERRA are set forth below for use as a quick
reference tool. For more specific details regarding USERRA and its practical
implications for your business and employees, consult any of Greenberg Traurig’s
Labor & Employment attorneys or review our October 2001 GT Alert on the
Deployment or Mobilization
An employee’s entitlement to USERRA’s benefits is contingent on the employee
giving advance notice, either written or oral, to the employer before departing
for military service, unless giving notice is impossible, unreasonable,
or precluded by military necessity. Notice may also be provided to the employer
by an appropriate officer of the military branch in which the employee will
Other Factors in Determining Entitlement
In addition to the notice requirement, other factors must also be considered
in determining whether the employee is entitled to USERRA’s benefits. For
example, an employee is not covered by USERRA if he or she is separated
from military service with a dishonorable or bad conduct discharge, or under
“other than honorable” conditions. Also, if an employee’s cumulative time
away from work for military service exceeds five years, the employee is
no longer entitled to USERRA’s protections. However, for purposes of calculating
the total time of service, certain periods of military service do not count
toward the cumulative five-year total, including time served during war,
national emergency, and certain operational missions.
A returning employee must be promptly reemployed by his or her former
employer. USERRA imposes time limits on an employee to report back to work
after returning from military service. The length of time allowed for reporting
back to work is dependent on the duration of the employee’s military service:
- For an employee who served 30 days or fewer, the employee must return
to work by the beginning of the next scheduled work day following the
day military service was completed, after allowing for safe travel home
and an eight-hour rest period.
- For an employee who served from 31 to 180 days, the employee must
submit an application for reemployment within 14 days after completion
of military service.
- For an employee who served over 180 days, an application for reemployment
must be submitted within 90 days after completion of military service.
- For an employee who suffered a disability or aggravated an injury
while on active duty, the time limits for reporting back to work are extended
by two years.
Once an employee returns from military service, an employer has the right
to request documentation from the employee that shows: (1) the employee
reapplied for work in a timely manner, (2) the nature of the employee’s
military service does not disqualify the employee from USERRA’s entitlements,
and (3) the employee has not exceeded the cumulative five-year limit for
time in service. An employer may not delay the prompt rehiring of a returning
employee while waiting for the requested documentation. However, if the
documentation, once received, shows that the employee did not meet the requirements
for reemployment, the employee may be terminated at that time.
Under USERRA’s “escalator principle,” an employer has an affirmative
duty to promptly reemploy a returning employee in the position he or she
would have attained, with reasonable certainty, by remaining continuously
employed, and for which the returning employee can become qualified with
reasonable efforts (including additional training) by the employer. Where
the returning employee’s military service was fewer than 91 days and the
employee cannot qualify for the position he or she would have attained,
the employee is entitled to the job held before his or her military service.
Where the returning employee served more than 90 days, the employer may
also place the returning employee in a position of similar status, seniority
and pay for which the returning employee is qualified to perform.
USERRA’s prompt reemployment requirement notwithstanding, reemployment
may be excused where an employer’s circumstances have changed so much since
the employee departed for military service that reemployment would be unreasonable
or impossible. An example of this situation is a reduction-in-force that
would have included the returning employee had he or she remained at work.
Also, reemployment may be excused where the returning employee has suffered
a service-related disability or injury and the employer cannot accommodate
the individual without undue hardship. In addition, an employer need not
reemploy a returning employee where the initial employment period was brief,
nonrecurring, and there was no reasonable expectation that employment would
continue indefinitely for a significant period.
An employee who returns to work following military service is granted
the seniority rights and benefits he or she would have attained had he or
she remained employed. Benefits must be reinstated immediately upon an employee’s
return to work. The time the employee spent in military service is credited
for retirement, vesting, and accrual purposes and does not count as a break-in-service
for retirement purposes. An employee is entitled to make up contributions
to a pension or retirement plan that he or she may have missed due to military
service. Where applicable, an employer must make up the required pension
or retirement benefit contributions on behalf of the employee. For an employee
departing for military service, at the employee’s election and expense,
the employee may continue health coverage for the employee and any dependents
for up to 18 months.
Under USERRA, returning employees are protected from termination without
cause once they have returned to work. The duration of this protection is
based on the length of the employee’s military service. An employee who
served from 31 to 180 days cannot be terminated without cause for six months
after the date of reemployment. An employee who served over 180 days cannot
be terminated without cause for one year after the date of reemployment.
Employees who served 30 days or fewer do not receive this protection.
An employee may file a complaint against his or her employer for an alleged
USERRA violation through the Veterans’ Employment and Training Service at
the U.S. Department of Labor (“DOL”), or may choose to file a private action
in court. If successful, the employee may be awarded reinstatement, back
pay, lost benefits, pension adjustments, attorneys’ fees, expert witness
fees, and litigation expenses. Double damages may be awarded where the employer
willfully violated USERRA. Employers are not permitted to bring declaratory
actions under USERRA, but they may receive technical assistance from the
DOL to ensure compliance if an employee makes a claim.
By now, all employers should have in place a Military Leave Policy that
complies with USERRA. This is a good time to review the policy and make
required adjustments. Employers should also review the benefits that are
offered to employees covered by USERRA to ensure compliance and to determine
what effect military service will have on an employee’s current benefits.
Employers are reminded that USERRA supercedes any policy or practice that
would eliminate, reduce or limit any right or benefit under USERRA. Other
laws, such as the Family and Medical Leave Act or Americans with Disabilities
Act, may also apply. Finally, employers are reminded to check state laws
for additional requirements.
© 2004 Greenberg Traurig
For more information, please review our Employment Law Practice description,
or feel free to contact one of our attorneys.
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys
provide practical, result-oriented strategies and solutions tailored to
meet our clients’ individual legal needs.