Uniformed Services Employment and Reemployment Rights Act
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:
- all branches of the U.S. Armed Forces (including both the active and reserve components of the Army, Navy, Air Force, Marine Corps and Coast Guard)
- the Army National Guard and Air National Guard, when members are engaged in active-duty training, inactive duty training (such as weekend drills) or full time duty
- the commissioned corps of the Public Health Service and any other category of persons designated by the President of the United States in times of war or national emergency.
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:
- full-time National Guard duty
- absence for an examination to determine fitness for duty
- absence for the purpose of performing funeral honors duty by the National Guard or reserve members.
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.
Eligibility for reemployment
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:
- The employee must be absent from civilian employment due to service in the uniformed services.
- The employee must give timely, advance written or verbal notice of his or her intention or obligation to serve, unless that notification is impossible due to military necessity or another reason outside of the employee’s control.
- The employee’s cumulative absence(s) from that employer due to military service must not exceed a total of five years. However, this five-year period does not include any:
- service that is required beyond five years to complete an initial period of obligated service
- service during which the employee is unable to obtain discharge orders through no fault of the employee
- service required by the military for drills, annual training or completion of skills training
- involuntary active duty during domestic emergency, national emergency, war or national security situations
- service performed in support of an operational mission for which selected reservists have been ordered to active duty or a critical mission
- federal service by members of the National Guard when called by the President to suppress an insurrection, repel an invasion or execute federal law.
- The employee must be honorably discharged from service. An employee who is separated from the military due to a dishonorable or bad conduct discharge or who is dropped from the military rolls or separated under less than honorable conditions is not entitled to reemployment rights or benefits under USERRA.
- The employee must report for work or submit an application for reemployment within the following time periods depending on the length of military leaves of absence:
- Military leave of less than 31 days - The employee must report for work by the beginning of the first full regularly scheduled work period on the first full calendar day following eight hours after the employee has returned home from military service, allowing a reasonable time to commute home from service.
- Military leave of 31 to 180 days - The employee must apply not later than 14 days after completion of military service.
- Military leave of more than 180 days - The employee must apply not later than 90 days after completion of military service.
- Military-related injury or illness - Persons who suffered an illness or injury, which was caused or aggravated by military service, must report for work or apply for reemployment within the time periods listed previously, after their period of recovery has ended, which cannot exceed two years from the date of the end of military service.
- Upon request from the employer, an employee who has been absent from work for more than 30 days must provide documentation from the relevant branch of the uniformed services establishing the preceding criteria for reinstatement. Employers should note, however, that a failure to provide documentation cannot be a basis for denying employment if the documentation does not exist or is not readily available to the employee at that time. An employer should return the employee to work pending receipt of the requested documentation. If the documentation does become available and the employee does not meet the criteria for reinstatement, the employer may terminate the employee. An employer may not, however, delay reemployment by demanding documentation that does not yet exist or is not readily available.
Apply for reinstatement
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.
Exceptions to employers’ obligation to reemploy
The employer is not obligated to reemploy a person returning from military service if:
- The employer’s circumstances have changed sufficiently so as to make reemployment impossible or unreasonable (for instance, when there was an intervening RIF that would have included the employee). An employer will always carry the burden of proving that its circumstances have changed sufficiently so as to make reemployment impossible or unreasonable. An employer cannot meet this burden simply by showing that another person has been hired to fill the position vacated by the veteran or that no opening exists at the time of the reapplication. Reemployment of the returning veteran must be more than inconvenient or undesirable in order for this exception to apply.
Reemployment would cause an undue hardship on the company, such as where either of the following circumstances exist:
the returning employee has a disability incurred in or aggravated during, service
if the person is no longer qualified to be employed in the position to which he or she would have been reinstated and cannot become qualified with reasonable efforts by the employer to accommodate that person in any position nearest to that position.
The employee’s prior job with the employer was only for a brief, non-recurrent period and there was no reasonable expectation by the employee at the time of departure that employment would continue for an indefinite or significant period of time.
Return from duty
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):
- Service of one to 90 days - The employee must be reemployed:
- Preferably in the position the person would have held if the military service had not interrupted his or her continuous employment (which may be a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer. To be “qualified” for a position, the serviceperson must be both physically and emotionally capable of performing the duties of the position and working with co-workers and supervisors.
- If the person cannot become qualified for the position, he or she should be reinstated to the position in which he or she was employed on the date of the commencement of the military service.
- If the person is not qualified for any of the prior positions and cannot become qualified through reasonable efforts by the employer, he or she should be reinstated to any other position that is the nearest approximation to a position referred to previously and for which the person is qualified.
- Service of 91 or more days - The employee must be reemployed:
- Preferably in the position the person would have held if the military service had not interrupted his or her continuous employment (as long as the person is qualified for the job or can become qualified after reasonable efforts by the employer) or a position of like seniority, status and pay (as long as the person is qualified to perform the duties of the position).
- If the person cannot become qualified for one of the prior positions, he or she should be reemployed by either one of the following methods:
- placed in the position he or she was employed in on the date of the commencement of the military service
- placed in a position that nearly approximates that position.
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 military leave
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.