USERRA: Navigating Uncharted
BY JIM BARBER, CP
Our nation in the last few months has experienced the largest military
call-up in over a decade. As military deployments end and service
members return home, they and employers alike are confronted with
questions that accompany these returns. Understanding the Uniformed
Services Employment and Reemployment Rights Act (USERRA), Chapter
43 of Title 38, U. S. Code, as passed by Congress in October 1994
answers these questions and eases the reemployment process. USERRA
prohibits employment discrimination based on military service, articulates
the rights, benefits and protections afforded to service members
while on military leave and upon return from military leave, and
governs the reemployment of service members upon completion of military
service. USERRA also provides its own enforcement procedures to
Utah State Law Provides More Extensive Rights
Familiarity with USERRA is essential, but it is also necessary to
be aware of the military leave laws of each state in which an employer
operates. In Utah such laws are found in Chapter 39 of the Utah
Code. Although not required under USERRRA, State of Utah employees
are given fifteen (15) days paid military leave per year, in addition
to annual vacation leave and a violation of Utah;s reemployment
rights could also be punishable as a misdemeanor. USERRA does not
restrict any state law more beneficial than rights provided to the
returning service member under federal law. However, USERRA does
supersede any state law, which attempts to reduce, restrict or eliminate
rights or benefits provided under USERRA.
USERRA Navigating Uncharted Legal Territory
Since the Veteran;s Reemployment Rights Act (VRR) was replaced by
USERRA few courts have decided cases using USERRA. USERRA case decisions
commonly rely on VRR rulings and legislative intent. There are,
however, some cases that help navigate USERRA;s uncharted legal
territory. Lapine v. Wellesley, 304 F.3d 90 (1st Cir. 2002) offers
an analysis of legislative intent and Rogers v. City of San Antonio,
Texas, 211 F.Supp.2d 829 (W.D. Tex. 2002) reviews VRR case history
and current application of USERRA.
Using an abundance of caution, the court in Rogers, supra on March
24, 2003 issued an Order Granting Motion for Certification Under
28 U.S.C. § 1292(b), 2003 WL 1571550 (W.D. Tex.) allowing the
parties to appeal two specific items to the Fifth Circuit Court
of Appeals, before proceeding further. On May 2, 2003, the Petition
for Permission to Appeal was filed. Said Petition was granted by
the 5th Circuit court of appeals on May 27, 2003, all briefs have
recently been filed and this matter is currently under consideration
by the court. As of the printing of this paper application of USERRA
by the courts seems to remain unclear.
Employee – Service Members
services whether voluntary or involuntary who was employed in any
non-temporary position even for only one day prior to being called
“Service” in the uniformed services is defined as the
performance of duty on a voluntary or involuntary basis in a uniformed
service, including active duty, active duty for training, initial
active duty for training, inactive duty for training, full-time
National Guard duty, absence from work for an examination to determine
an individual;s fitness for any of the named types of duty, funeral
honors duty performed by National Guard or reserve members, duty
performed by intermittent disaster response personnel for the Public
Health Service, and approved training to prepare for such service.
“Uniformed services” consist of the United States Army,
Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval
Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve,
Army National Guard, Air National Guard, commissioned corps of the
Public Health Service and any other category of persons designated
by the President in time of war or national emergency. Part time,
full time and probationary employees are protected under USERRA.
Employers – Public & Private
USERRA applies to all public and private employers, and their successors,
regardless of size or location in the world. USERRA does not require
the employer to be involved in interstate commerce or to employ
a minimum number of employees to apply. The employer must grant
an employee leave to fulfill their military obligations whether
the employee;s service is voluntary or involuntary. Employers are
prohibited from interfering with the frequency or length of military
leave taken by its employees.
Invoking Protected Rights Procedures by Service Member
A service member is entitled to rights furnished by USERRA provided
that the service member meets the criteria outlined in Table 1.
Advance Notice to the Employer
The service member or an appropriate military officer must provide
advance written or verbal notice to the employer of all military
duty, unless giving notice is impossible, unreasonable, or precluded
by military necessity. The law requires “advance” notice,
but does not specifically address how far in advance notice must
Maximum Length of Military Leave
The cumulative leave of absence from employment for one employer
that causes a service member to be absent from a position of employment
may not exceed five years. Normally leaves for service obligations
will be cumulatively counted in the computation of the five-year
period, however there are eight categories of exceptions that permit
the five-year period to be extended. Those categories are listed
in Table 2.
Release from Military Service
Notice of Return to Employer & Submitting a Reemployment Application
A service member returning from service must timely notify the employer
of their intent to return to work. A service member;s failure to
submit an application for reemployment within the time periods set
forth by USERRA, will subject the service member to the employer;s
established policy governing unexcused absences, which may be deemed
by the employer, without discrimination, as a voluntary termination
of employment by the service member with the employer. Timely application
for reemployment is based upon the service members; length of military
service (See Table 3).
Notably there is no specific form for the application, however the
service member should notify their employer in writing that the
service member is ready to return to work.
Deadlines for application for reemployment may be extended up to
two years for a service member who is hospitalized or convalescing
from an injury that occurred or was aggravated during military service.
A deadline will be extended by the length necessary to accommodate
the injured service member if the time of the service member;s recovery
will take longer than two years, if due to circumstances beyond
the service members; control.
Waiver of Reemployment Rights
A service member may not waive their USERRA rights to reemployment
before or during their military service. The USERRA right to reemployment
does not mature until the service member has returned from the period
of service. Thus, any service member;s USERRA rights that have not
matured cannot be waived. The intent of USERRA is to keep the service
member;s options open until the service member returns to civilian
Reemploying Returning Service Member;s Positions
A returning service member with less than 91 days military service
is entitled to return to the position in which the service member
was employed or would have been employed if their employment had
not been interrupted.
A returning service member whose military service was more than
90 days is entitled to return to the position in which the service
member was employed or would have been employed, or a position of
like seniority, status, and pay.
Re-employed service members are entitled to the seniority and all
rights and benefits based on seniority they would have received
with reasonable certainty had the service member remained continuously
employed. A right or benefit is considered seniority based if it
accrues or is determined by length of service.
Rights not based on Seniority
Service members called up must be treated as if they were on a leave
of absence. While absent the service member must be allowed to participate
in any rights and benefits not based on seniority that are available
to employees on non-military leaves of absence, whether such leave
is paid or unpaid. If the employer has several types of leaves,
the service member is entitled to the most favorable treatment among
all of the employers; comparable leaves.
Training & Retraining
USERRA requires that employers make reasonable efforts to allow
returning service members to refresh and upgrade their skills to
qualify for reemployment in the position they would have held if
the service member had not been called to military service.
Reemployment Not Required
USERRA provides that reemployment is not required under certain
circumstances. Those exceptions are stated in Table 4.
These limited exceptions will be narrowly construed in favor of
the returning service member and the burden of proof concerning
an exception will be on the employer.
Termination of Service Member after Reemployment
Any service member Re-employed may only be terminated for cause
during a specific period of time after reemployment. This period
of protection is based upon the length of military service (see
“At Will Employment”
Returning service members cannot be terminated, except for cause,
for a specified period of time, even if they were at-will employees
before they were called up for military service.
USERRA & Collective Bargaining Agreements
USERRA supersedes any collective bargaining agreement that decreases,
restricts or eradicates any right or benefit provided under USERRA.
See: Rogers, supra.
Disabilities Incurred or Aggravated while in Military Service
USERRA provides a three (3)-part reemployment procedure for service
members with disabilities incurred or aggravated while in military
service (See Table 6).
Protection from Discrimination and Retaliation
USERRA prohibits an employer from discriminating in employment or
taking any adverse employment action against a service member because
of their past, present or future military obligations. This ban
is broad, extending to most areas of employment including hiring,
promotion, reemployment, termination and benefits. The law protects
from discrimination past members, current members and persons who
apply to be a member of any of the branches of the uniformed services.
Once a prima facie case is established the burden of proof is clearly
on the employer.
Employers are prohibited from retaliating against anyone who files
a complaint under the law, who testifies, assists or otherwise participates
in an investigation or proceeding under the law, or who exercises
any right provided under the law, whether or not the person has
performed military service.
A governmental healthcare program commonly known as Champus or TRICARE,
automatically covers service members called up for a period of service
of at least 31 days. However, many service members may wish to continue
their employer provided healthcare benefits, especially for their
USERRA provides that a service member on military leave has the
right to elect continuation of health benefits coverage under COBRA-like
terms if the service member was a participant in the employers health
benefits plan immediately before the service members call up. This
requirement, unlike COBRA, applies to all health benefits plans,
not just group plans. Unlike COBRA, USERRA applies to all employers
regardless of size.
Health benefits coverage under USERRA continues for the lesser of
18 months from when military leave commences or a period ending
the day after the service member fails to return to work as provided
by USERRA after having been discharged from military service. When
a service member;s military leave is less than 31 days, the service
member cannot be required to pay more than the service member;s
usual share of the health benefits premium. If the employer;s policy
permits employees to pay only their share of the health benefits
premium while on other types of leave, then the service member on
military leave is entitled to the same benefit. However in the absence
of such a policy, after 31 days, the service member wishing to continue
health benefits coverage while on military leave can be required
to pay no more than 102 percent of the premium cost to maintain
the coverage. If a service member chooses not to maintain health
benefits coverage while on military leave, the service member may
seek reinstatement of coverage on return to work with no plan waiting
periods or exclusions.
USERRA & FMLA
Employers must count the months and hours that service members would
have worked if they had not been serving military service towards
the service member;s FMLA eligibility. Simply put the months and
hours the service member would have worked, but for the service
members military service, must be combined with the months employed
and the hours actually worked to determine if the employee has completed
the 12 months and 1,250 hours of work required for eligibility for
leave under the FMLA.
Pension & Retirement Benefit Plans
USERRA provides that a “pension plan” must comply with
the requirements of reemployment law and would be any plan providing
retirement income to employees to termination of employment or later.
Pension plans tied to seniority are given separate, detailed treatment
under USERRA (See Table 7).
Repayment of service member;s contributions can be made over three
times the period of military service but no longer than five years.
Defined benefit plans, defined contribution plans and profit sharing
plans that are retirement plans are covered by USERRA.
Multi – employer Plans
In a multi-employer defined contribution pension plan, the sponsor
maintaining the plan may allocate the liability of the plan for
pension benefits accrued by persons absent for military service.
If no cost-sharing arrangement is provided, the full liability to
make the retroactive contributions to the plan will be allocated
to the last employer employing the person before the period of military
service or, if the employer is no longer functional, to the overall
plan. Within 7 Days after reemployment, an employer who participates
in a multi-employer plan must provide written notice to the plan
administrator of the person;s reemployment.
Under USERRA, service members called up are entitled to all non-seniority
based benefits that are available to other employees who take non-military
leaves of absence. Service members continue to accrue vacation;
sick time and remain eligible for such benefits as company bonuses
and life insurance while on military leave, only if employees on
non-military leave are entitled. Employers must allow service members
at their request to use any vacation the service member had accrued
before the beginning of the service members military leave instead
of unpaid leave. However, employers may not force service members
to use vacation time while performing military service. Vacation
was recently discussed in Rogers, supra.
A great place to start is with the Ombudsmen Services Program, which
provides information, counseling and informal mediation of issues
relating to compliance with USERRA. You may contact the program
by visiting their website at www.esgr.org/employers/thelaw.asp.
On a more formal level, the Department of Labor is the enforcement
authority for USERRA. Veterans; Employment and Training Service
(VETS) of the Department of Labor assist service members with issues
involving USERRA. VETS maintain a USERRA adviser on its web site,
www.dol.gov/vets, to answer the most often asked questions. The
law gives VETS right of access to examine and duplicate employer
documents and interview persons with information it considers relevant
to an investigation. The law authorizes VETS to subpoena attendance
and testimony of witnesses and production of documents relating
to any matter under investigation.
If a complaint is not successfully resolved by VETS the non-federal
employee complainant may request their complaint be submitted to
the U.S. Attorney General for possible court action. When the U.S.
Attorney General is satisfied that a complaint is meritorious, the
U.S. Attorney General may file a court action on the complainant;s
behalf. Complaints of federal employee;s are submitted to the Office
of Special Counsel, www.osc.gov/userra.htm. If the Special Counsel
believes there is merit to the complaint, the OSC will file before
the Merit Systems Protect Board and appear on behalf of the complainant.
Service members continue to have the option to privately file court
actions. They may do so if they have chosen not to file a complaint
with VETS, have chosen not to request that VETS refer their complaint
to the U.S. Attorney General, or have been refused representation
by the U.S. Attorney General. Damages can include double award of
back pay or lost benefits in cases where violations are found to
be willful. The law, at the court’s discretion, allows for
awarding attorney fees, expert witness fees and other litigation
expenses to successful plaintiffs who retain private counsel. Further
the law prohibits charging court fees or costs against anyone who
brings suit. Only persons claiming rights under the law may bring
The court in Spratt v. Guardian Automotive Products, Inc., 997 F.
Supp 1138, (N.D. Indiana 1998), held that USERRA, which now provides
for liquidated damages, also provides the right to a jury trial
under the Seventh Amendment.
Several good resources exist. For example, the best continually
updated, USERRA information website that I have found is www.roa.org.
Once on the site, click on “Legislative Affairs” then
on “Law Review Archive” at the bottom of the drop-down
Jim Barber is an accomplished author with articles published in
various legal publications and journals. .
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