Military Law Newsletter - Spring 2013
The Uniformed Services Employment and Reemployment Rights Act: Employer Obligations
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 In the 2012 Military Law Section Newsletter, we explored what Servicemembers generally must do to protect their USERRA rights. The current article provides an overview of what employers generally must do to comply with USERRA. The basic requirements include:
1) Do not discriminate against Servicemembers based in whole or in part on military service when hiring, promoting, or providing any other benefits of employment;5
3) Place Servicemembers in the appropriate reemployment positions upon their return from military service;8
4) Take reasonable steps to qualify Servicemembers for the appropriate employment positions;9 and
5) Provide the Servicemembers with all seniority-based employee benefits they would have received had they never been gone and other benefits that are not seniority based if others of similar seniority, status, and pay who are on furlough or leave of absence for nonmilitary purposes generally would have received those benefits.10
USERRA prohibits employers from discriminating against Servicemembers based in whole or in part on military service when hiring11, promoting, or providing any other benefits of employment.12 For example, when hiring, employers may not consider military service requirements or potential requirements to discriminate against a Servicemember even when the job is temporary.13 The same is true when promoting someone or providing any other benefit of employment.14
USERRA also requires that prior to Servicemembers leaving on military duty, employers must allow them reasonable amounts of time off to prepare for the military duty. The amount of time involved will depend on the circumstances. At a minimum, a Servicemember must be allowed enough time off to travel safely to the military service location and be fit for duty.15
When Servicemembers return from military service and make timely requests for reemployment, USERRA requires employers to promptly reemploy the Servicemembers. Employers must reemploy Servicemembers within two weeks of their requests for reemployment once their military service has ended absent unusual circumstances requiring additional time.16
If Servicemembers are on military duty for 90 days or less, then their employers must place them upon their return in the escalator position, which is the position they would have held had they never been gone.17 This includes promotions and eligibility for promotions when applicable.18 The Servicemembers must be qualified for the positions, and the employers must take reasonable steps to qualify the Servicemembers for those escalator positions.19 If Servicemembers are on military duty for more than 90 days, then employers must place them in escalator positions or ones of similar seniority, status, and pay.20 If Servicemembers become disabled or aggravate preexisting disabilities while on military duty, then employers must place the Servicemembers in escalator positions or ones of similar seniority, status, and pay providing accommodations for the particular disabilities involved.21 It is arguable that if an employer has any position a disabled Servicemember can perform, then that position must be offered to the Servicemember even if the person currently in the position must be removed to allow the Servicemember to have the position. The burden is on the employer to prove the Servicemember is not qualified for a position and that its efforts to qualify the Servicemember were reasonable.22
Relating to jobs of similar seniority, status, and pay as the escalator position, seniority and pay usually are easy to determine. If a Servicemember has been with an employer four years, then spends one year on military duty, then when he returns to work he is considered to have been with the employer for five years as though he had never been gone. The pay upon return is at the level the Servicemember would have received had he never been gone, including raises and seniority-based bonuses.23
"Status" is the issue with which many employers have trouble. There are many possible status violations, which must be determined on a case-by-case basis. One status problem is revising work hours, such as placing someone on night shift when they would have been on the day shift had they never been gone. Another possible violation is placing Servicemembers at locations inferior to where they would have been located had they never been gone. For example, before leaving for military duty, a Servicemember is located four miles from her house at one of the newest and best employer locations. When she returns from military duty, she is placed 30 miles from home in one of the oldest and smallest locations. These may be status violations. Also, placing Servicemembers in positions that do not have the same or better upward mobility as what they would have enjoyed had they never been gone may be a status violation.24
USERRA requires employers to provide Servicemembers with all seniority-based employee benefits they would have received had the Servicemembers never been gone. This includes seniority-based bonuses, raises, increases in vacation rates, pension or 401(k) matches, insurance, and any other seniority-based employment benefit.25 Regarding raises, if the raises are merit-based, then employers should utilize the Servicemembers' last evaluations to determine what the salaries will be on a go-forward basis. The assumption is that the Servicemembers would have continued at those levels had they never been gone.26
Bonuses and other benefits are due Servicemembers upon their return only if they are seniority based unless the employer would have provided the bonus or other benefits to other similarly-situated employees who were on leaves of absence for nonmilitary purposes.27 For example, a bonus that is given only to a few employees based on performance during the time a Servicemember is on military duty would not be awarded to the Servicemember. That bonus is not a seniority-based bonus. However, if the entire company or an entire division or other segment of the employer receives a bonus, and the Servicemember worked in that division or segment prior to leaving on military duty, then the Servicemember would receive that bonus upon his return since it was seniority based. Also, if the employer would have given a non-seniority-based bonus to someone on another type of leave of absence, then generally the employer must give that bonus to the Servicemember also.28
Pensions and 401(k)s or other deferred compensation must be updated as though Servicemembers had never been gone once the Servicemembers have contributed (if applicable) what they are required to contribute.29 Many employers have problems with this area of USERRA. Servicemembers should be encouraged to check their pensions, 401(k)s, and other deferred compensation upon their return to ensure they are updated correctly.
Finally, except for cause or other legitimate nondiscriminatory reason, an employer may not terminate a Servicemember for 180 days if the Servicemember was away on military duty from 31 to 180 days and for one year if the Servicemember was gone for over 180 days. The employer has the burden to prove that a termination was for cause or other legitimate nondiscriminatory reason, such as the Servicemember would have been laid off anyway regardless of his military status.30 The fact that Virginia is an at-will state does not alter this requirement.31
This is the second 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 firstname.lastname@example.org. Cindy Norwood is the DOD ESGR Ombudsman Director for the Virginia Committee; a Senior Assistant Attorney General for the Virginia Attorney General's Office; and a Lieutenant Colonel in the U.S. Army Reserve.
Disclaimer: The content of this article is intended for informational purposes only and does not reflect the opinions of any of my associated organizations. It is not intended to be, nor shall it be relied upon as, legal advice or opinion. It is not intended to replace the information you may obtain from ESGR, a Judge Advocate, or a civilian attorney.
2 38 U.S.C. § 4301(a)(1). SeeEricksonv. 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.
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-issued state orders as USERRA does for federal military duty.