Labor&Employment Personnel FileIn light of the anticipated draw down of US military forces in Iraq and Afghanistan in the coming months (and in honor of the upcoming Memorial Day holiday), now is a good time to make sure that all private and public sector employers have a plan to comply with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA is a federal employment law designed to protect the civilian employment of employees called to duty in the U.S. armed forces. Among other things, USERRA creates reemployment rights for returning members of the uniformed services, provides anti-retaliation protections for employees who are members of the uniformed services, and provides special protection to employees with disabilities incurred in or aggravated during military service. USERRA protects current and returning employees who served in the Army, Navy, Marine Corps, Air Force, Coast Guard, military Reserve units, as well as Army National Guard or Air National Guard. Unlike most federal employment laws, USERRA applies to all private and public (federal, state, and local) employers, regardless of the total number of employees employed by the employer.
To invoke USERRA’s protections, an employee called up for active duty must provide advanced notice – preferably at least thirty days - of the deployment to the employer. While on active duty, members of the uniformed services are on “furlough” or “leave of absence”, and are entitled to all other non-seniority rights and benefits as other employees who are on leave. They and their dependents are also entitled to remain on company health insurance plans, in a manner similar to COBRA, for up to twenty-four months while on active duty. Employees may choose, but cannot be required, to use accrued paid leave from their civilian employer during their military service.
Upon leaving active duty, service members returning to civilian life are entitled to full reemployment rights with their former civilian employer so long as they (i) were discharged “under honorable conditions”, (2) have not been away from their civilian jobs more than five years; and (3) provide timely notice (on a sliding scale depending on how long they have been deployed) to their employer of their intent to return to work. If these three conditions are met, then the returning employees are entitled to be reinstated to the same position they would have occupied had the employee not been on active duty. This means the employee is entitled to all promotions, salary level and benefits to which the employee would otherwise have achieved had the employee been continuously employed and never left for military duty. USERRA requires employers to train or retrain returning employees so that they may assume their rightful positions after returning to work. Reemployment may mean that workers who had been performing the employee’s job while the employee was deployed must be bumped (either reassigned or terminated from the company) to make room for the returning reservist or guardsman.
Returning reservists and guardsmen who qualify for USERRA coverage are entitled to both continuation and reinstatement of health care, pension, and vacation benefits. Employers are also required to provide reasonable accommodation to such employees for any disability or short term injury incurred during military service, unless such accommodation would “impose an undue hardship on the employer.”
After becoming reemployed, returning reservists and guardsmen (depending on how long they were on active duty) are granted further protections and may only be terminated from employment “for cause” up to one year after they become reemployed.
Finally, USERRA prohibits all forms of employment discrimination against employees based on their military service. This means, among other things, that an employer cannot discriminate against or fire an employee for missing work for reserve or National Guard training, even if the employee is not mobilized or deployed overseas. Employers are also prohibited from retaliating against any employee for asserting USERRA rights or assisting others in asserting their USERRA rights.
Like other federal employment statutes (e.g. Title VII, ADEA, ADA), an employee who brings a successful USERRA claim may be entitled to reinstatement, back pay, lost benefits, retroactive seniority, pension adjustments, restoration of vacation time, and attorneys’ fees. Liquidated damages, in the form of double back pay or lost benefits, may be awarded if a willful violation of USERRA is found. Unlike most federal employment laws, however, there is no statute of limitations for USERRA claims.
For additional background information regarding an employer’s USERRA obligations, please review the following government websites:
http://www.servicemembers.gov; http://esgr.org/site/USERRA/tabid/75/Default.aspx; http://www.dol.gov/elaws/userra.htm; http://www.dol.gov/vets/programs/userra/main.htm.
So, as U.S. military forces draw down overseas and reservists and guardsmen return to civilian life, employers should become aware of their obligations under USERRA and develop plans for how they are going to re-employ returning service members. This is one very appropriate way to celebrate Memorial Day.
This article was written by Michael J. Schrier and Heather D. Hovermale, Jackson Kelly PLLC.
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