For many employers, leave requests are a common occurrence. Leave requests related to disabilities, pregnancy, illness, and time away to care for a family member can become quite routine, especially in the midst of a global pandemic. However, few employers regularly handle leave requests for employees who will be serving our country in the uniformed services. Employees returning from military leave are granted unique rights under a law known as USERRA and violating these rights can be costly.
What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in 1994 and applies to virtually all employers, regardless of size. USERRA provides certain protections to all regular employees (part-time and full-time), regardless of position and length of service. With few exceptions, USERRA guarantees that an employee returning from military training or military service of five years or less be reemployed to his or her former job or an equivalent job with the same pay and benefits. Reemployment rights apply to employees serving in all branches of the military while performing voluntary or involuntary service, including:
- Active duty and active duty for training;
- Inactive duty training;
- Full-time National Guard duty;
- Time away from work for an examination to determine a person’s fitness for duty;
- Funeral honors duty performed by National Guard or Reserve members; or
- Duty performed by intermittent employees of the National Disaster Medical System.
USERRA leave not only guarantees an employee’s right to return to the same or similar position but also requires that employers apply the “escalator principle” to determine the appropriate position, pay, and benefits for an employee returning from military leave.
Within reason, the escalator principle requires that each returning service member be reemployed in the position he or she would have occupied if they had not gone on military leave. For example, if an employee would have been promoted from a Network Engineer to a Network Engineer II had he or she not taken military leave, the employee should be placed in a Network Engineer II position upon their return. If the employee is not qualified for the escalator position, USERRA requires employers to provide the returning employee with the necessary training to perform the essential tasks of the position. If an employee would not have received a promotion or pay increase during their time away from work, there is no obligation to provide it upon their return.
As the name suggests, the escalator principle can also move downward due to circumstances such as layoffs or reorganizations within the company. Should this occur, an employee could be returned to a lower-level position than they occupied prior to deployment or potentially be laid off if the company eliminated the position during their period of service.
Reinstatement Rights by Length of Service
To be eligible for reinstatement under USERRA, employees must provide their employer with advance notice of their upcoming military service and must be available to return to work within a defined period following their leave, which is determined by their length of service.
- 1 to 30 days
Employees who are absent from work from 1 to 30 days due to military service may return to work on the next regularly scheduled work period on the next calendar day following an eight-hour rest period. These requirements also apply to employees who take time away from work in order to take a fitness-for-service exam.
- 31 to 180 Days
Employees returning from 31 to 180 days of service must request reemployment within 14 days of their return from service.
- 180 or More Days
Employees serving greater than 180 days will be allowed up to 90 days from the completion of their military service to request reemployment.
For leave exceeding 31 days, employers have the right to (a) request documentation confirming that the employee’s request to return was submitted in a timely manner, (b) the employee did not exceed 5 years of military service, and (c) the employee was not separated from service with a disqualifying reason such as a dishonorable discharge.
Additional USERRA Protections
While reinstatement is the main protection under USERRA, there are other protections of which employers should be aware. USERRA provides employees with protection from discrimination including discrimination in hiring, benefits, promotions, and termination due to past, present, or future military duties.
Additionally, USERRA prohibits employers from discharging an employee upon their return without cause for 180 days if the length of military service was 31 to 180 days and the protection lasts for one year if the military service was greater than 181 days. Employees who serve 30 days or less are not protected from termination without cause. If an employee is terminated with cause, the employer must establish that the adverse action would have occurred regardless of the employee’s military leave.
While navigating USERRA may seem overwhelming, taking the steps to ensure that the employment rights of our valuable servicemembers are protected is critical. Employees whose rights are violated could be entitled to return to work, back pay, reinstatement of lost benefits, lost promotional opportunities, retroactive seniority, pension adjustments, and personnel file corrections. Take the appropriate HR planning steps now to ensure you are administering USERRA leave appropriately.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.