Tips For Employers of Servicemembers: USERRA Rights and Obligations
Too often employers and HR professionals lack a basic understanding of Servicemembers' employment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Given the lack of a statute of limitations under the Act, it is critical that Employers get it right the first time.
When is an employee entitled to USERRA protections?An employee, whether an existing Servicemember (SM), or a civilian applying for initial qualification to he armed services, is entitled to USERRA protections if she meets the following requirements:
1) Left a position of employment for the purpose of uniformed service:
USERRA applies to all employers, regardless of size, and all positions of employment, other than "brief, non-recurrent" positions. The Act recognizes "joint" employer situations, such as contractors placed by temp agencies. Any federal (excluding state National Guard) service is included, and states often extend to include state NG service.
2) Must provide written OR verbal notice to employer prior to service:
The employer may NOT require written notification, and notice may be provided anytime prior to next shift. There are exceptions where it is impossible or military necessity precludes advance notice.
3) Must not exceed FIVE years cumulative NONEXEMPT military service per employer:
This requirement is frequently misunderstood since there are MANY exceptions, including all of the operations in Iraq and Afghanistan, as well as any "contingency operations." It also excludes any involuntary training or deployments. Check with ESGR to confirm whether this applies.
4) Service must be "qualified" (i.e., no other than honorable discharge):
Any conduct resulting from misconduct will likely be disqualifying for USERRA protection. However, if the misconduct results from PTSD, TBI, or sexual assault, it may be upgraded retroactively to qualify the SM for USERRA protection.
5) Must timely reapply for work (depending on length of service):
Regardless of length of service, once the SM reapplies for work, he must be "promptly" reemployed, meaning days, but under no circumstances longer than two weeks.
1-30 days service: Must report back to work the next regularly scheduled shift, after time for safe travel and 8 hours of rest. Employer may not require the SM to report for a partial shift (unless "regularly" scheduled") and cannot adjust shifts to avoid this restriction, unless the SM agrees.
31-180 days: SM must report back within 14 days after orders expire.
181 days or more: SM must report back within 90 days.
The SM may delay reapplying up to 24 months for purposes of hospitalization and convalescence.
Reemployment Rights to the Returning ServicememberA returning SM must be reemployed at the "Escalator Position," i.e. the position he would have had had he remained continuously employed. This means any seniority, status, pay, or other seniority-based benefits must be provided as if the SM was continuously employed.
During extended service, this may require retraining, requalification, or the opportunity to compete for missed promotions. Regardless of the position to which the SM is entitled under USERRA, if it is already occupied the employer must give preference to the returning SM (unless the position is claimed by a SM with superior USERRA rights).
1) Escalator Position:
The SM must be initially offered the position he would have had had he remained continuously employed, and must be given an opportunity to requalify/retrain for that position, or to compete for promotion to that position after a reasonable opportunity to prepare for the exam.
If the SM can't be qualified for that position, he is entitled to a position of like seniority or status, provided he can be qualified for that position. If still not qualified for that position, he is entitled to the nearest equivalent of that position.
If an employee left the employer while in a legitimate probationary/apprenticeship program, she must be reemployed at the point she left for military service. If she successfully completes the program, than her seniority will be retroactively applied to give her the same seniority, pay, and status, as though she remained continuously employed during her military service.
Servicemembers Are Entitled to the Employer's MOST Favorable LOA PolicyRegardless of USERRA's requirements, if the employer has a more-favorable leave of absence (LOA) policy, than the SM employees must be provided the same benefits for "similar" military LOAs. Thus, if the employer offers paid LOA for jury duty, bereavement leave, maternity/paternity leave, etc., it must provide the same benefits for similar military LOA. "Similarity," under the DoL's regulations, is primarily determined by the length of the leave at issue.
Issues Employers Typically Do NOT Understand:1) Vacation Days:
It is completely up to the SM whether to us vacation days/PTO for military service.
Employers cannot "require" documentation unless service was longer than 30 days. SMs are encouraged to provide such documentation. And, reemployment cannot be delayed pending documentation under any circumstances. Consult ESGR for guidance.
3) Missed Bonuses, Incentive/Disincentive Pay:
Although SMs are not entitled to pay while they are on military leave, neither should a SM employee be deprived of an incentive, or disincentive, bonus merely because they were called to duty. Consequently, employers should carefully consider whether a SM would have qualified for a bonus had he remained continuously employed. Depending on the circumstances, the SM's work history could be extrapolated over the time that he was absent for the Military LOA, and then prorated to provide the SM the benefit of that bonus over the period he was actually employed.
4) Health Benefits:
Employers must provide SMs health benefits, without additional fees or penalties, for service up to 30 days. Beyond 30 days, the employer may charge the SM 102% of the premiums, up to 24 months, which is the limit of coverage under USERRA.
4) Pension/401K benefits:
SMs will not be penalized, or suffer any re-enrollment penalties, once they return. The SMs have 3 times the length of uniformed service, up to 5 years, to make up contributions and trigger the employer's contributions.
The coverage of USERRA is broader than the ADA (or ADAAA). The employer must accommodate any SM with a disability, incurred or aggravated during military service, for the escalator position, or any alternative position. And, if the disability is temporary, the employer must reassign the SM into the original escalator position once he is qualified.
Enforcement of USERRA Rights!Please contact ESGR if you have any questions regarding USERRA or its enforcement. It is a Department of Defense organization that provides mediation ("Ombudsman") services to employers and SMs to repair the relationship between them.
If you are an employer, keep in mind that there is NO statute of limitations for USERRA claims since 2008, and it is in your interest to resolve such issues, whether involving lost benefits, promotions, LOA policies, or "hostile work environment/constructive discharge" claims, those damages are accruing each and every day you do not address the situation. If you have any questions, ESGR is a Department of Defense agency tasked with helping you resolve your USERRA issues.