Developing recruitment partnerships

By NEHRA, 3/12/2002

Outlined below are the rights and responsibilities that employers and employees have under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA").

1. Applies to all employers

USERRA applies to all employers regardless of size.

2. Covers all uniformed callups

USERRA covers all uniformed service federal callups. The definition of "uniformed services" includes the 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 emergencies.

3. Discrimination prohibited

Employment discrimination because of past, current or future military obligations is prohibited under USERRA. The ban is broad and applies 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.

4. Advance notice to be given by employee

The employee or appropriate military officer usually must give the employer advance oral or written notice of the employee's leave. No notice is required if military necessity prevents such notice or if the giving of notice is otherwise impossible or unreasonable.

5. Length or frequency cannot be dictated

An employer cannot direct the length or frequency of military leave taken by its employees, but the general rule is that USERRA will not cover an employee's absence from work in excess of five years. Exceptions to this five-year limit exist.

6. No payment required

USERRA does not require employers to pay employees while they are absent for military duty. Employers may choose to pay employees on military leave the difference between their military and their civilian salaries.

7. Treat as leave of absence

When service members depart for a military assignment, they must be treated as if they were on a leave of absence. Consequently, while they are away they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether paid or unpaid. At their request, service members must be allowed to use vacation time that accrued before the beginning of their military leave, but they cannot be forced to use vacation time for military leave. Employers are required to provide such employees with continuing health benefits, even if the employer is not subject to COBRA.

8. Reemployment guaranteed

USERRA guarantees the reemployment of service members returning to their civilian employment as long as they provided advance notice of their leave (see 3, above), applied for reemployment, were honorably discharged and did not exceed the maximum length of service (see 4, above). Except with respect to persons who have a disability incurred or aggravated by military service, the position into which a person is reinstated is based on the length of the person's military service. USERRA generally supports the proposition that, if possible, each returning service member actually step back into the seniority escalator at the point the person would have occupied if the person had remained continuously employed. This position may not necessarily be the same job the person previously held. For example, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. Consistent with this principle, reemployed service members are entitled to the seniority and to all of the seniority-based rights and benefits they would have attained with reasonable certainty had they remained continuously employed.

9. Exceptions to reemployment guarantee

Despite the above, reemployment is not necessary if the employer's circumstances have changed so much that reemploying the service member would be unreasonable or impossible. Employers are also excused from making efforts to qualify returning service members or from accommodating individuals with service-connected disabilities when doing so would be of such difficulty or expense as to cause "undue hardship."

10. Protected employment upon return

Once reinstated, a returning service member who served on active duty for more than six months cannot be fired without good cause for a full year. Shorter periods of protection apply to more abbreviated military assignments.

Michael R. Brown is a partner with the law firm of Seyfarth Shaw, LLP, NEHRA's Employment Law Hotline provider. Mike is also a senior advisor to NEHRA. He can be reached at mrbrown@seyfarth.com.