Origins, Rationale of Act
USERRA's origins begin with the Selecftive Training and Service Act (STSA) of 1940. STSA, and its amendments, was a great law for Plaintiff's. USERRA is even better. USERRA was enacted in 1994 and is a complete rewrite of STSA and strengthens the reemployment rights of veterans. USERRA is codified at 38 U.S.C. §§ 4301-4333.
USERRA's purpose is deceptively simple. It gives members and former members of the U.S. Armed Forces, both active and reserves, the right to go back to the civilian job they held before military service.
Eligibility for Reemployment
Under USERRA, an employee is entitled to reemployment if he or she meets the following criteria:
1) The employee must have left a civilian job for the purpose of performing voluntary or involuntary service or training in the uniformed services. Civilian jobs that that are held for a brief period and are not expected to last indefinitely may not qualify for protection. Uniform services include the Navy, Army, Marine Corps, Air Force, Coast Guard, National Guard, the Reserves and other categories designated by the President.
2) The employee must give notice to the employer that he or she will be leaving the job for military training or service. Although notice must be given in advance, the law does not specify how much notice is required. Moreover, no notice is required if military service necessity prevents the giving of notice or if providing notice would otherwise be impossible or unreasonable. Oral or written notice is sufficient.
3) The employee's cumulative period or periods of service cannot exceed five years. However, there are exceptions to how the five year period is calculated. For example, the five year limit does not apply if service is required beyond five years to compete an initial period of obligated service; drills and training for Reservists and National Guard are exempt; and service during a time of war or national emergency is exempt. And, if the employee starts a new job with a new employer, he or she receives a fresh five-year entitlement.
4) The employee must be released from service under honorable conditions.
5) The employee must report back to work in a timely fashion or submit a timely request for reemployment. Note the exception - if, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee can then report to work as soon as possible. Otherwise, the following scenarios apply:
a. If the employee's period of service is 1-30 days, he or she must report to work on the first regularly scheduled work day after the completion of the period of service. However, the employee can add time for safe transportation home from the deployment and eight hours to rest.
b. If the employee's period of service is 31 to 180 days, he or she must submit an application for reemployment, either oral or written, no later than 14 days after completing military service.
c. If the employee's period of service is 181 days or more, he or she must submit an application for reemployment, either oral or written, no later than 90 days after completing military service.
These reporting or application deadlines can be extended for up to two years for employees who are hospitalized or convalescing because of a disability incurred or aggravated by military service. Furthermore, an employee's reemployment rights are not automatically forfeited if the employee does not return to work or apply in a timely fashion. The employee is eligible to utilize the employer's leave policies for unexcused absences and the employee retains rights under any applicable State or Federal law.
Employer's Obligations
If an employee meets the foregoing eligibility requirements, the employer must promptly reemploy the returning military service person and the following scenarios apply:
a. If the employee's period of service is 1-90 days, he or she is entitled to the job the employee would have attained if the employee had remained continuously employed. This means the person gets the job he or she held previously with any increases in seniority, pay and status. The best part,
for employees, is the fact that the employer must make reasonable efforts to qualify the returning service member for the job. If, after reasonable efforts, the employee is unable to become qualified for the job they would have had if they had never left, the employer is still obligated to place the returning service member in the job in which he or she was employed on the date of the commencement of service.
b. If the employee's period of service is more than 91 days, he or she is entitled to the job the employee would have attained if the employee had remained continuously employed or a position of like seniority, status and pay, so long as the employee is qualified for the job or can become qualified after reasonable efforts by the employer. If, after reasonable efforts, the employee is unable to become qualified, the employer is still obligated to place the returning service member in the job in which he or she was employed on the date of commencement of service; or a position of like seniority, status and pay; or any other position of lesser status or pay but that most nearly approximates the former position and that the employee is qualified to perform with full seniority.
These broad reemployment rights, however, are tempered by the following exceptions:
a. Changed circumstances - Reemployment of a returning service member is excused if the employer's circumstances have changed such that reemployment of the person would be impossible or unreasonable. A reduction-in-force is an example of a changed circumstance.
b. Undue hardship - An employer is excused from making efforts to qualify a returning service member or from accommodating employees with service-connected disabilities when doing so would be of such difficulty or expense to cause an undue hardship.
Expansive Rights Under USERRA:
Under USERRA, returning service members have a number of expansive rights. Other employment laws in civil rights contexts like Title VII, ADEA or ADA, typically do not confer the same types of benefits and entitlements as USERRA.
Training and Accommodation (Section 4313) - As stated above, the employer must train returning service members on new equipment, techniques, refresh the employee's skills and provide whatever reasonable efforts are necessary to prepare the employee to do his or her job upon reinstatement. Furthermore, the employer must accommodate a service-connected disability and the disability does not need to be permanent to confer USERRA protection.
Seniority and Non-seniority Rights (Section 4316) - An employee must be conferred all status, and seniority based benefits that they would have attained had they remained continuously employed. Additionally, a returning service member must be treated as if they were on a leave of absence. This means they are entitled to any non-seniority rights or benefits that are available to employees, including those benefits and rights that became effective during their service. In short, the returning service member gets the same promotions, raises, or benefits of any kind that his or her co-workers received while he or she was on military leave.
Pension and Retirement Plans (Section 4318) - A returning service member must be treated as not having incurred a break in service with the employer's pension plan; military service must be considered service for vesting and benefit accrual purposes; the employer is liable for funding any resulting obligation; and the returningservice member is entitled to any accrued benefits from employee contribution plans to the extent he or she pays their contribution.
Vacation Pay (Section 4316) - Returning service members have the right to request and use any vacation pay that had accrued prior to their military service. The employee cannot be forced to use vacation time for military service.
Health Benefits (Section 4317) - USERRA provides for health benefit continuation even when the employer is not covered by COBRA (employers with fewer than 20 employees are exempt from COBRA). If the employee's health coverage would terminate because of an absence due to military service, the employee may elect to continue coverage for up to 18 months after the absence begins or for the period of service, whichever is shorter. The employer may require payment of the full premium for the coverage. If the military service was for 30 days or less, the employer must continue to carry the employee on the company's health plan at the normal employee share of any premium.
Protection from Discharge (Section 4316) - The at-will employment doctrine is limited under USERRA. Under the statute, a reemployed service member may not be discharged without cause. Specifically, if the employee's period of service is 181 days or more, he or she cannot be terminated without cause for one year after the date of reemployment. If the employee's period of service is 31 to 180 days or more, he or she cannot be terminated without cause for six months after the date of reemployment. An employee whose military service is 30 days or fewer is, unfortunately, not protected from discharge without cause.
Protection from Discrimination and Retaliation (Section 4311) - Employment discrimination because of past, current or future military obligations is prohibited. Employees are also protected from reprisal.
The Burden of Proof is on the Employer (Section 4311) - For a USERRA discrimination claim, if the employee's military service is a "motivating factor" in an employer's adverse action, the employer has committed a violation of the law. Thus, an employer can be held liable if military service is just one of an employer's reasons for the action. The employer must prove that it would have taken the same action regardless of the military service. The burden of proof is on the employer once a prima facie case is established.
All Employers Are Covered Under USERRA - Everybody is covered - State, Federal and private employers. And, there is no exemption based on the size of the employer.
No Administrative Processing Required - Administrative processing with the Department of Labor is not required. A returning service member who was employed with a private employer may file in Court anytime. If, for some reason, the employee does not want to go to Court, they can file their complaint with the U.S. Department of Labor, Veterans' Employment and Training Service (VETS). VETS may refer the case to the Attorney General for possible Court action on the Plaintiff's behalf. If the
complaint is against a Federal agency as an employer, the case must be brought before the Merit Systems Protection Board (MSPB) or the Office of Special Counsel (OSC). If the complaint is against the State as an employer, the Attorney General must file suit and the US will be the named Plaintiff.
Private Court Actions (Section 4323) - The employee may file a Court action any U.S. District Court. There is no SOL and only a possible laches argument.
Damages (Section 4323) - An award of back pay or lost benefits may be doubled in cases where violations of the law are found to be "willful," i.e., if an employer's conduct was knowingly or recklessly in disregard of the law. Successful Plaintiffs can be awarded attorneys' fees and litigation expenses and employers who prevail cannot seek their costs from Plaintiff.
The Three Major Provisions of USERRA That Will Likely Present the Most Challenges:
. Just Cause for Discharge - Since USERRA provides six months or 1 year of protection against discharge, the stage is set for battles over what constitutes a lawful discharge during this protective period.
. Determining Benefits - a USERRA covered employee must be given retirement and pension benefits as if there were no break in service. The task will be calculating the proper vesting and benefit accrual, as well as determining the employer's contribution if an employee elects to pay their share of the contribution. Similar questions will arise with respect to health plan coverage - how do you calculate the continuation coverage period under USERRA? Cafeteria plans or flexible spending plans are covered and employers have the challenge of determining how to make the after-tax contributions to these plans. Finally, although a USERRA covered employee must have been a participant in the health plan prior to the military service, issues abound with respect to election, payment and cancellation of health plan coverage.
. Providing Training and Accommodation - What exactly is a "reasonable" effort to provide training and disability accommodation? The law does not specify what is required and employers are left wondering how far they must go and at what point does this become an undue hardship? Similarly, other than a reduction-in-force, what else would constitute a changed circumstance such that an employee does not have to be reinstated?
Sources of additional information and help:
The Department of Labor administers the VETS program. There is also a helpful USERRA Advisor on the webpage as well as a Non-Technical Resource Guide to USERRA. See www.dol.gov/dol/vets
The National Committee for Employer Support of the Guard and Reserve provides useful tips and information for military personnel and employers. See www.esgr.org
The Reserve Officers Association is another organization at the forefront of USERRA issues. See www.roa.org
The American Bar Association has a standing committee on Legal Assistance for Military Personnel. See http://www.abanet.org/legalservices/lamp
The American Bar Association also has a Family Law Military Committee Section with articles for military families. See http://www.abanet.org/family/military/home.html
The Judge Advocate General's (JAG) websites for the various Uniformed Services can provide legal assistance and information on USERRA rights.