Employer Obligations under USERRA

October 31, 2008

Since September 11, 2001, it has become increasingly common for employers to face the reality of losing valuable employees who are called upon to serve the nation through their separate commitment to military service.

When these employees report for military duty, it’s not unusual for businesses to run into several roadblocks and legal ambiguities over the staffing gaps and benefits issues that arise while the employee leaves civilian life.

In order to get a better grasp of their obligations when deployment among their staff occurs, employers should make sure they understand the job and benefit protections provided to service members under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

This federal law, which passed in 1994, applies to almost all public and private employers in the United States. Unlike some other employee benefit laws, such as COBRA, it is not limited to employers of a certain size. You only need one employee to be an employer subject to USERRA. The law also applies to foreign employers doing business in the United States, and American companies doing business abroad have to comply.

USERRA applies to all employees of the company, from the janitor to the company president, and this law applies to those who volunteer for military service as well as those called involuntarily. All in all, USERRA provides coverage of individuals on active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard service, as well as the time required to be away from a civilian job for purposes of an examination to determine fitness for service.

Certain rights and benefits of the law, such as the non-discrimination provisions, apply even to those who have not performed service in the uniformed services. For example, if you are applying for active service, or if you assist a service member in enforcing his rights under USERRA, you are protected by certain parts of the law.

The basic principle for employers to remember is that USERRA prohibits discrimination against anyone for past or present uniformed service or application or obligation to perform future service. This includes initial employment, reemployment, retention in employment, promotion, or any benefit of employment. Additionally, USERRA also prohibits retaliation against anyone who tries to enforce his or her rights under USERRA.

The obligations aren’t all on the employer. There is a certain level of responsibility that the service member must take in order to be protected under the law. These requirements include providing the employer with advance notice of their service, if possible to do so. The service member also must not have racked up more than five years of cumulative service in the armed forces with that particular employer. All involuntary service and some voluntary service are exempted from the computation of the five-year limit. Lastly, in order to be eligible for their reemployment rights, the service member must have been released from the period of service without having received a disqualifying dishonorable, bad conduct or other-than-honorable discharge.

Additionally, when the service member returns from active duty, he or she must return to work or apply for reemployment in a timely manner. The deadline is based on the time spent on military duty. For service of less than 31 days, the employee must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account time for travel and rest. For service of more than 30 days, but less than 181 days, the employee must apply for reemployment within 14 days of release. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

Employers should remember that simply providing a job upon return isn’t enough to comply with USERRA. The returning service member must be reemployed in the job that he or she would have attained had he or she not been absent for military service. This applies to seniority, status and pay, and other rights and benefits that the company has for its senior members. In other words, even though the employee is not on location, his or her seniority accrues as though he or she had been. This includes seniority and pension benefits. If employees contribute to the cost of the pension plan, the returning veteran must pay any portion that he or she would have had to pay while employed.

There is an exception if the employee is not qualified for the job or is unable to handle it because of injury. USERRA requires that reasonable efforts, such as training or retraining, be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The employer must make reasonable efforts to accommodate any disability or injury that occurred, or was aggravated, while on military leave. If the disability cannot be reasonably accommodated in that particular position of employment, the employer must reemploy the returning disabled veteran in another position for which he or she is qualified or can become qualified with reasonable employer efforts.

The failure to comply with USERRA can lead to costly lawsuits for employers. The wronged service member could not only obtain compensation for any lost wages and benefits, but also for liquidated damages in an amount equal to the actual damages. Plus, the employer can be held responsible for attorney’s fees, expert witness fees and other litigation costs.

So what steps should employers take to ensure they take care of their service member employees? To start, the human resources department should review and amend plan documents, employee handbooks, and any other materials that describe benefits and leave policies. After this review, employers should consider sending memos to advise employees of any changes USERRA might make to existing company policies. For example, if an amendment to the employee handbook is made, it’s important to tell the people it applies to what has been changed.

This is only a summary of USERRA and hardly covers every component of the law. Employers should seek legal counsel to ensure full compliance with this comprehensive and complex law. Companies who understand these basic obligations under USERRA can stay out of hot water. And with more and more service members called to the colors everyday, awareness of USERRA has never been more crucial.

Samuel F. Wright joined the Washington office of Tully Rinckey PLLC earlier this year after 37 years of active and reserve service in the U.S. Navy. He was one of the principal drafters of the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Written by Samuel F. Wright  |  Filed Under Employment 

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