The Uniformed Services Employment And Reemployment
Rights Act Of 1994 (USERRA)
By Attorneys Lester A. Pines and Kira E. Loehr
Cullen Weston Pines & Bach LLP
This article provides a broad overview and touches on many of the finer points of The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). See 38 U.S.C. § 4301, et seq.; 20 C.F.R. pt. 1002. USERRA is designed to ensure that those who serve our country are treated fairly upon their return from duty. Their employers must assist them in transitioning to civilian life.
The State of Wisconsin has a USERRA-type law that provides reemployment rights following National Guard service. See Wis. Stat. § 21.80. In July 2005, Wisconsin also enacted new legislation providing reemployment rights for employees enlisted in or inducted into the U.S. Armed Forces, which differs from USERRA. See Wis. Stat. § 21.79. An employer must apply the provisions of state or federal law that are more favorable to the employee. See 20 C.F.R. § 1002.7. Whether Wisconsin law or USERRA will be more favorable to a particular employee depends on the type of service in which the employee is engaged and other specific details regarding that employee’s circumstances. In certain circumstances, especially for service in the U.S. Armed Forces, Wisconsin law may provide greater protections.
I. APPLICABILITY OF USERRA.
USERRA applies to all public and private employers in the United States, regardless of size. It protects people who are called up for National Guard or Reserve duty as well as those serving in the active component of the uniformed services: Army, Navy, Air Force, Coast Guard and Marine Corps and their reserves; Army and Air National Guards; commissioned corps of the Public Health Service; and certain types of service in the National Disaster Medical System. The law covers all categories of military training and service; including duty performed while on a voluntary or involuntary basis, in time of peace or war.
II. PROTECTIONS.
Employees engaged in military service have three types of protection under USERRA: (1) protection from discrimination and retaliation; (2) reemployment rights; and (3) protection of employment benefits.
A. Protection from Discrimination and Retaliation
An employer cannot refuse to hire, reemploy, retain, promote or deny any benefits to an individual because he or she is a member of the uniformed service, has applied for membership or must fulfill service obligations. It is also illegal to retaliate against someone who exercises his or her rights under USERRA. The prohibitions against discrimination and retaliation apply to all types of employees, including temporary, part-time, and probationary employees. 20 C.F.R. § 1002.21. Individual supervisors can be held liable under USERRA.
The employee bears the burden to prove discrimination or retaliation. The standard is whether the military service was a “motivating factor” in the employer’s action. An employer has an affirmative defense to a claim of discrimination or retaliation by proving that it would have taken the same action even absent the military service.
B. Reemployment Rights.
An employee returning from military service has the right to reemployment with his or her pre-service employer, provided the employee satisfies the eligibility criteria.
1. Advance Notice Usually Required.
In order to qualify for reinstatement, an employee must give advance notice to the employer of the need for leave, except in cases of military necessity. There is no set time required for giving notice, but the U.S. Department of Defense recommends that notice should be given at least 30 days in advance of the leave. The employee’s notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format.
Depending on the employee’s circumstances (e.g., if the employee has been ordered to perform an extended period of service), he or she may require a reasonable period of time off from the employer to put his or her personal affairs in order, before beginning the service. Taking such time does not terminate any reemployment rights.
2. Length of Service.
An employee may perform military service for a cumulative period of up to five years with each employer and retain reemployment rights with that employer. The cumulative period means that the employee can go in and out of military service several times, as long as the total time served while working for one employer does not exceed five years. If the employee has a disqualifying discharge from military service, such as a dishonorable discharge, the employer’s reinstatement rights are terminated.
3. Time Period for Return to Work.
If the service lasted less than 31 days, the employee must return to work the next day following release from service, after travel home plus eight hours’ rest.
For service that lasts between 31 and 180 days, the employee must submit an application for employment within 14 days of discharge from the service.
If the service was for more than 180 days, the employee must submit an application for reemployment within 90 days of discharge.
If the employee is in the hospital for military service-related injuries, the employee must submit an application for reemployment on recovering, but no later than two years after the end of the service.
In all cases, the application for reemployment can be written or verbal.
The employer must reemploy the employee “promptly,” which means within two weeks absent unusual circumstances.
An employee leaving for military service is not required to decide at that time whether he or she intends to return to the employer upon completion of military service, but can defer that decision until after completing the period of service. However, even if the employee tells the employer that the employee does not intend to seek reemployment with the employer following military service, the employee can still change his or her mind and not forfeit reemployment rights.
4. Employer Can Require Documentation.
Upon an employer’s request, the employee must submit documentation showing the timing and duration of military service and the conditions of discharge, so that the employer can determine whether the employee satisfies the conditions for reemployment. The employer cannot delay reemployment, however, if such documents do not exist or are not readily available.
5. The Reemployment Position.
The so-called “escalator principle” determines the position, seniority, status and rate of pay the returning employee must receive. That is, the returning service member does not step back on the “employment escalator” at the point he or she stepped off. Instead, the employee steps back on at the point he or she would have attained with reasonable certainty but for the interruption due to military service. The particular job to which the employee is entitled varies according to how long the employee was away. The escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated, depending on events that occurred during the employee’s absence. The escalator may have gone up or down during the employee’s absence.
If an employee missed an opportunity for promotion while he or she was absent, and the promotion opportunity was based on a skills test, the employer should give the returning employee a reasonable amount of time to adjust to the employment position and then give the employee a skills test. If the employee is successful on the exam, and there is a reasonable certainty that he or she would have been promoted as a result of that exam, the promotion must be made effective as of the date it would have occurred but for military service.
6. Training and Accommodations.
The employer is required to make “reasonable efforts” to enable the returning service member to qualify for the position to which the employee is entitled. Reasonable efforts include training and retraining that does not place an undue hardship on the employer.
Employers have special responsibilities toward disabled employees. If the service-connected disability is not an impediment to the service member’s qualifications for the “escalator position,” the employee has the same rights as any other returning service member. If the disability limits the employee’s ability to perform the job, the employer must make reasonable efforts to accommodate the disability. Such accommodations might include placing the employee in an alternate position on “light duty” status, modifying technology or equipment used in the job, revising work practices, or shifting job functions.
In its recently promulgated regulations, the Department of Labor (DOL) explicitly declined to adopt the Equal Employment Opportunity Commission’s (EEOC) American’s with Disabilities Act (ADA) guidance and definitions of “qualified individual with a disability” and “reasonable accommodations.” DOL noted that USERRA covers a broader range of disabilities than the ADA.
7. Family and Medical Leave Act (FMLA) Eligibility.
The period of absence for military service counts toward the employee’s eligibility for leave under the Family and Medical Leave Act (“FMLA”). A returning employee is entitled to FMLA leave if the hours the employee would have worked during the period of military service would have met the FMLA eligibility threshold.
8. Employer Defenses.
An employer may have affirmative defenses to a claim of failure to reemploy if the employer can show that circumstances have so changed since the employee left employment to enter military service that reemployment is impossible or unreasonable, that reemployment would cause the employer undue hardship, or that the pre-service position was temporary.
C. Protection of Employment Benefits.
The employee has the right to seniority and other benefits to which the employee would have been entitled had the employee not been on the military leave.
1. Compensation.
USERRA does not require that employers pay employees while absent for military service, although employers may choose to do so. But, the employee must be permitted to use any accrued vacation, annual or similar leave with pay during military service, but the employer cannot require the employee to use accrued leave. The employee is not entitled to use accrued sick leave, unless the employer allows employees to use sick leave for any reason or allows employees on comparable furlough or leave of absence to use accrued paid sick leave.
2. Seniority.
Upon reemployment, the employee is entitled to the seniority and the seniority-based benefits that the employee would have had if the employment had not been interrupted by the military service. The employee is not entitled to any benefit to which he or she would not otherwise be entitled if he or she had remained employed.
3. Health Insurance.
The employee is entitled to the continuation of health insurance benefits during the military service. The continuation coverage lasts for the lesser of 24 months from the date of the employee’s absence for military service, or the date when the employee is required to return to work.
4. Pension.
The employee is entitled to protection of his or her pension plan benefits. Military service is not considered a break in employment for purposes of participation, vesting, and accrual of benefits in a pension plan.
If an employer offers a defined contribution plan, the employer must allocate its make-up contribution, the employee’s contributions, and the employee’s elective deferrals in the same manner that it would allocate these amounts for other employees. For a defined benefit plan, the employee’s accrued benefit will be increased for the period of service once he or she is reemployed and, if applicable, has repaid any amounts previously paid to the employee and made any employee contributions that may be required under the plan. If an employee’s contribution plan is based on a percentage of an employee’s wage (like the Wisconsin Retirement System), and, by contract, the employer pays both the employer’s and employee’s share of the contribution, the employer must make up both the employer’s and employee’s share of the contribution upon the employee’s return from service. In that case, the contribution will be based on what the employee would have earned from the employer had the employee not been absent from work for service in the uniformed services.
A reemployed service member has the right to make contributions or elective deferrals, but is not required to do so. The employee’s right to make up missed contributions is conditioned on continued employment with the post-service employer.
Employer contributions to a pension plan that are not dependent on employee contributions must be made within 90 days following reemployment or when contributions are normally made for the year in which the military service was performed, whichever is later.
III. ENFORCEMENT.
An employee may file a complaint with the DOL for a violation of USERRA. The DOL will investigate and attempt to resolve the complaint. The employee may also file a private legal action in a federal district court and reasonable attorney fees are available at the discretion of the court to a prevailing plaintiff.
If the DOL finds a violation, remedies include lost wages and benefits. If the violation is willful, the damage award may be doubled.
Because USERRA and the corresponding Wisconsin law are complicated, this article should be used as a guide, but an attorney should be consulted if unique situations arise.
