The Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes certain rights for employees of private employers who serve in the uniformed services. Specifically, USERRA prohibits private employers from discriminating or retaliating against such employees based on their uniformed service and ensures that those employees receive certain benefits and reemployment rights, as well as limited protection from termination, upon return from military leave.
USERRA applies to virtually all employers in the United States, including private companies, tax-exempt entities; and federal, state or local governments and agencies. There is no exception for small employers. In addition, some courts have even found that individuals may be liable for discrimination or retaliation under USERRA.
Any person who is a member of the “uniformed services” of the United States (or who applies to be a member of the uniformed services) is entitled to protection from discrimination or retaliation under USERRA. In addition, persons who are absent from their regular employment due to “service in the uniformed services” are entitled to certain reemployment rights and benefits. The term “uniformed services” is broad and includes:
The phrase “service in the uniformed services” is defined as the performance of a duty on a voluntary or involuntary basis in a uniformed service and includes:
Unlike some federal employment statutes, under USERRA, there is no minimum amount of time that an employee must work for the employer to be eligible for USERRA-protected leave. In fact, USERRA provides rights and protections to part time and probationary employees and even to job applicants of private employers. However, USERRA does not cover temporary employees who are hired for a brief, non-recurrent period, where there is no expectation that the employment would continue for an indefinite or significant period of time.
Note: USERRA does not protect employees who leave civilian employment to pursue a full time career in the military.
An employee is responsible for notifying the employer of his or her military obligation.
An employee is not required to submit official documentation of his or her military orders at the time the employee requests the military leave of absence because military orders are often issued on an informal basis. For instance, the military rarely issues formal, written orders for inactive duty training (weekend drills). Nevertheless, any orders issued by competent military authority are considered valid.
An employer may not require an employee to reschedule drills, military training or other military duty obligations to suit the employer’s needs. However, when military duties require an employee to be absent from work for an extended period, during times of acute business need or when the requested military leave is unduly burdensome for the employer, the employer may contact the commander of the employee’s unit to determine if the duty could be rescheduled or performed by another service member. If the commander determines that the employee’s military duty cannot be rescheduled or performed by another service member, the employer must permit the employee to perform his or her military duty.
An employee is not required to find someone to cover his or her work duties during the absence from work.
Under USERRA an employee who takes a military leave of absence must meet six eligibility criteria in order to be entitled to the reemployment rights and benefits of USERRA:
USERRA does not define what it means to apply for reemployment. While a formal application is probably not necessary, something more than a mere inquiry concerning employment is usually required. For instance, courts have found that an employee who simply asked his employer about conditions at the plant and another employee who asked for an application from the employer’s security guard did not apply for reemployment under USERRA.
The employer is not permitted simply to terminate an employee who fails to return to work within the deadlines outlined herein. If an employee fails to meet the USERRA reapplication deadlines, he or she will be subject to the employer’s standard explanation requirements and disciplinary procedures for employees who are absent for scheduled work.
The employer is not obligated to reemploy a person returning from military service if:
Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service (excluding travel):
If the person is not qualified for any of the previous positions and cannot become qualified through reasonable efforts by the employer, he or she should be placed in any other position that is the nearest approximation to a position referred to previously and for which the person is qualified.
The fact that another employee was placed in the serviceperson’s former position does not render it impossible or unreasonable for the employer to reinstate the serviceperson. The employer is expected to accommodate a returning employee’s right to his or her position, regardless of whether reinstatement would result in displacement of another employee.
Colorado also has its own military service and work leave laws that protect members of the Colorado National Guard as well as individuals in the reserve forces of the United States. Colorado law requires private employers to provide full time employees with up to 15 days of unpaid leave each year for duty and training. Private employers are also required to reinstate employees who take leave for military training and are not permitted to use military absences as grounds to deplete employee benefits such as seniority, vacation, bonuses, etc.
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