by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
April 25, 2018
Our most recent blog post started our review of USERRA – the Uniformed Services Employment and Reemployment Rights Act. The requirements of USERRA are surprising compared to other leave laws, but the men and women who have served in the military have earned these job protections. So although we may wonder at some of the provisions of USERRA, let’s embrace the law.
Documentation upon return to work. In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.” USERRA has no provision requiring the servicemember to provide the employer a copy of military orders or other proof of upcoming service.
When the employee returns and applies for reemployment, however, the employer can request documentation (if the employee who was absent for military service for 31 days or more) that shows:
- the person’s application for reemployment is timely (that is, within the time limits described in our first post);
- the person has not exceeded the five-year service limitation; and
- the person’s separation from service was not under disqualifying circumstances.
Circumstances that disqualify the servicemember from the right to reemployment include dishonorable or bad conduct discharge, separation under other than honorable conditions, and a few other situations.
However, even if the employee does not provide satisfactory documentation because it is not readily available or does not exist, the employer must still promptly reemploy the servicemember. If documentation is later provided that fails to support the three conditions above, the employer can terminate the employee without violating USERRA. Unfortunately, the law is silent about the employer’s options if no documentation is ever provided.
Reemployment position. The returning servicemember must be reemployed as soon as practicable under the circumstances. Return after weekend duty or two-week annual training should generally be practicable on the next business day. Reemployment following 5 years of active duty might take longer due to the need to assess the correct position and possibly give notice to an incumbent in the position the servicemember is entitled to hold.
Generally, the employee must be reemployed as follows, in order of preference:
- In the job the employee would have held if the employee had remained continuously employed
for the duration of his or her service, including promotions and increased seniority, pay, benefits,
and duties. This is referred to as the “escalator position.” The employer must make reasonable
efforts to help the servicemember become qualified, such as by providing refresher or new training
for the position.
- If the returning servicemember cannot become qualified for the escalator position, he or
she can be reemployed in the position held at the commencement of the military service or,
in cases of service longer than 90 days, in a position of like seniority status and pay.
- If the employee cannot become qualified for either of the above positions, then he or
she must be placed in the position that is the nearest approximation to the above positions,
in that order of preference.
The escalator goes down as well as up. Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service).
Job protection following return. USERRA modifies the common rule of at-will employment. Following reemployment, the servicemember may not be discharged without cause for 180 days if the military service was 31 to 180 days, and for one year if the service was 181 days or more.
Accrued vacation. A servicemember must be allowed to use accrued paid vacation (or presumable PTO) during military leave but cannot be required to do so. The employee does not continue to accrue vacation during military leave, but any rights to vacation based on seniority must be provided upon return. For example, if an employee’s right to vacation time increases from 2 to 3 weeks based on length of employment and the servicemember crosses that threshold during military service, then upon return the employer must award vacation at the higher amount.
Health benefits. An employee on military leave for 30 or fewer days can continue with health benefits coverage by paying the employee’s normal share of the premium. Otherwise, the employee may elect to continue such coverage by purchasing COBRA during service for up to 24 months (or the period of service and return to work, if shorter) and cannot be required to pay more than 102% of the full premium for the coverage.
Nondiscrimination. An applicant or employee cannot be discriminated against in hiring, promotion, termination, or benefits on the basis of past, current, or future military obligations.
Posting. All employers must provide employees notice of the rights, benefits and obligations under USERRA. This can be accomplished by posting or distributing to employees the notice available from the Department of Labor, Your Rights Under USERRA.
Impact of USERRA on FMLA rights. The Family and Medical Leave Act specifically addresses employee FMLA eligibility for returning servicemembers. The employee must be credited with length of service and hours that the employee would have worked but for the military service. So for example, an employee who normally works 40-hour weeks and has been employed for 6 months takes a military leave of absence for 8 months, the employee will be FMLA eligible upon return by combining the length of employment and military service for 14 months; and the hours actually worked with the hours the employee would have worked but for military service (which will clearly exceed 1250).
Other USERRA provisions. USERRA contains many additional provisions addressing things such as the special rights of a servicemember who returns with an injury incurred or aggravated during service, the servicemember’s rights under pension plans, and undue hardship as a defense to reemployment of the servicemember. More information is available in the DOL’s Guide to USERRA, available here.
PINGS FOR EMPLOYERS
As you can see, USERRA indeed has many unexpected provisions and protections for military servicemembers that we don’t see in other leave of absence laws.
- Provide the required notice, Your Rights Under USERRA, by posting it where employee
notices are customarily placed, by handing or mailing out the notice, or distributing the
notice via electronic mail.
- Be familiar with USERRA generally to understand that your usual expectations about how
leave laws operate don’t apply to USERRA.
- Have resources at hand to address and answer questions (yours and those from the
servicemember!) when the need arises.
- Provide servicemembers with information about your company’s benefits available
to employees who are members of the regular armed forces and Reserve/National Guard units.
- If you have to fill a servicemember’s employment position during his/her absence,
understand that you might have to bump the replacement from the position upon
the servicemember’s return. A long military absence might make this unnecessary
due to the escalator principle, but be ready.
- If you are placing the returning servicemember in the same or a lower position after
a lengthy absence, be sure you can justify that placement by business factors that take
into account the escalator principle.
MATRIX CAN HELP! At Matrix we offer a full suite of leave of absence and disability management tools. These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans . . . and of course, USERRA. To learn more, ping us at [email protected].