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Military Law

A Section of the Virginia State Bar.

Military Law Newsletter - Spring 2012

Military Law News

The Uniformed Services Employment and Reemployment Rights Act
by Cynthia H. Norwood, Esq.

The Uniformed Services Employment and Reemployment Rights Act (USERRA)1 is a law that protects noncareer2 military service members from civilian employment discrimination or certain other negative employment actions resulting from their voluntary or involuntary3 military service.4 USERRA applies to all civilian employers regardless of size,5 including federal, state, and local governments, and foreign employers doing business in the U.S. (for employees working in the U.S.).6 American companies operating in a foreign country must also comply with USERRA relating to employees in the foreign country unless doing so would violate that country's laws.7 There is no statute of limitations applicable to USERRA.8 It is important to note that service members must comply with certain requirements to protect their USERRA rights. If service members do not take the required steps to protect their USERRA rights, then USERRA may not apply to them.
There are four major requirements with which service members must comply to be protected by USERRA. Service members must:

1) Provide notice to their employers prior to performing military service unless they are unable to do so by reason of military necessity or it is otherwise impossible or unreasonable for them to do so;9

2) Not be away from their employers because of military service for more than five years cumulative;10

3) Be discharged or released from military service under honorable conditions;11 and

4) Request reemployment within the required amount of time based on how long they are away on military service.12

The first requirement is for service members to provide notice to their employers prior to leaving on military duty.13 Such notice is not required if military necessity prevents notice or it otherwise would be impossible or unreasonable to provide notice.14 USERRA does not require notice to be in writing, though it is preferable for proof purposes.15 Service members should be advised to save a copy of any written notices, whether email or other document, and keep them at home or otherwise away from their place of employment. USERRA does not specify how far in advance notice is required, but the implementing regulations require that notice be provided as far in advance as is reasonable under the circumstances.16

The second requirement under USERRA is service members must not be away from their employer for more than five years.17 This requirement is cumulative, which means the military duty does not have to be performed consecutively. If a service member changes employers before he or she reaches five years, the clock starts over with the new employer.18 Also, there are certain types of duty that are exempt from the five-year requirement, including annual training and other training, deployments to Iraq or Afghanistan, and a few other types of duty and situations.19 Furthermore, USERRA-authorized leaves of absences before or after the military duty do not count towards the five years.20

The third requirement is that service members must be discharged or released from military duty under honorable conditions.21 This means that if a service member receives an other than honorable, a bad conduct, or a dishonorable discharge, USERRA will not apply to that service member.22 The type of discharge can be determined by reviewing the service member's DD Form 214, Certificate of Release or Discharge from Active Duty ("DD 214"). However, these forms are not provided to the service member for service involving training, including weekend drills or other inactive duty training and annual training, and other short periods of service.

The final requirement is that service members must request reemployment from their employers within a certain amount of time depending on how long they were away on military duty. The rules are, if their military duty runs for:

30 days or less – service members must report to work after safe travel to their residence (go straight home from where service members are released from military duty, without detours) PLUS 8 hours, and then service members start the NEXT regularly scheduled work period.23

31-180 days – 14 days (service members must request reemployment within 14 days of completing military duty)24

Over 180 days – 90 days (service members must request reemployment within 90 days of completing military duty)25

• For those service members who are hospitalized for, or convalescing from, an injury or illness incurred during or aggravated by the performance of the military service, the service member has up to two years to request reemployment, though that period may be extended if reporting within two years is unreasonable or impossible.26

If service members are away on military duty for over 30 days, they must submit a request for reemployment to their employer. The request need not be in writing, and the service member cannot be required to fill out an actual application or any other employer paperwork in order to be reemployed.27 For service over 30 days, the service member also must provide documentation establishing eligibility for employment. Possible documentation options are a DD 214, orders indicating service completion, leave and earnings statements, etc.28 However, the employer cannot delay reemployment because documentation is not yet available.29

In summary, there are four things a military service member usually must do to be eligible for USERRA rights and benefits. First, the service member must provide notice to the employer either verbally or in writing that he or she is leaving on military duty. Second, the service member must not be gone from the same employer for more than a cumulative of five years unless one of the exceptions applies. Third, the service member must be released from military duty under honorable conditions. Fourth, the service member must request reemployment, either verbally or in writing, within the proper amount of time depending upon how long he or she was on military duty or whether an injury or illness has occurred while on military duty requiring hospitalization or convalescing after military duty.

This is the first of a series of articles to be published in future newsletters. If you have any questions relating to USERRA, please contact Employer Support of the Guard and Reserve (ESGR) at 800-336-4590 or the author of this article at cynthia.norwood@us.army.mil. Cindy Norwood is the, DOD ESGR; a Senior Assistant Attorney General for the Virginia Attorney Ombudsman Director for the Virginia Committee General's Office; and a Lieutenant Colonel, Chief of Military Justice, 80th Training Command (TASS), U.S. Army Reserve.

Disclaimer: The content of this article is intended for informational purposes only. It is not intended to be, nor shall it be relied upon as, legal advice or opinion. The content of this article contains general information and is designed for the purpose of giving general information about the subject topic. It is not intended to replace the information you may obtain from ESGR, a Judge Advocate, or a civilian attorney.

 

1 38 U.S.C. §§ 4301 et seq.
2 See Erickson v. U.S. Postal Service, 636 F.3d (Fed. Cir. 2011) relating to determining  noncareer service.  This is an issue that will be studied more fully in a future newsletter article. 
3 20 CFR 1002.6
4 USERRA establishes a floor , not a ceiling, relating to employment and reemployment rights and benefits.  An employer may provide greater benefits to service members.  Furthermore, USERRA supersedes any state or local laws, contracts, company policies, practices, or anything else that limits, reduces, or eliminates any USERRA-provided benefit or right.  20 CFR 1002.7  USERRA does not apply to nonfederal military duty, such as Virginia National Guard members mobilized by the Governor to assist with snow removal.  However, Title 44 of the Code of Virginia applies to protect the service member on Governor-mandated state orders as USERRA does for federal military duty.
5 20 CFR 1002.34(a)
6 A detailed review of employer requirements under USERRA will be forthcoming in the next VSB Military Law Section Newsletter.
7 20 CFR 1002.34(b)-(c)
8 38 U.S.C.S. § 4327(b).
9 20 CFR 1002.32(a)(1),
10 20 CFR 1002.32(a)(2),
11 20 CFR 1002.32(a)(4)
12 20 CFR 1002.32(a)(3)
13 Service members also may take time off from work prior to entering military service to prepare for military duty about which they have been notified.   USERRA protects the service member even if the military duty is cancelled.  20 CFR 1002.73-1002.74.
14 20 CFR 1002.86. 
15 20 CFR 1002.85(c).
16 20 CFR 1002.85(d).
17 20 CFR 1002.99.
18 20 CFR 1002.101
19 20 CFR 1002.103
20 20 CFR 1002.100
21 20 CFR 1002.135
22 20 CFR 1002.135
23 20 CFR 1002.115(a)
24 20 CFR 1002.115(b)
25 20 CFR 1002.115(c)
26 20 CFR 1002.116
27 20 CFR 1002.118
28 20 CFR 1002.123
29 20 CFR 1002.122