GT Alert

As Troop Rotations Increase, Employers are Reminded of Their Obligations to Employees Entering or Returning from Military Service

February 2004
By John Scalia and Michael Buddendeck, Greenberg Traurig, Tysons Corner Office

  View or download the PDF version of this Alert here.

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 military service.

"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 laws.

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 subject.

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 be serving.

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.

Reemployment

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.

Job Placement

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.

Benefits

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.

Termination

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.

Legal Action

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

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