Working Together

Nearly 10,000 National Guardsmen have been called up from across the United States to perform a variety of missions in support of efforts to combat COVID-19.  In Connecticut, the National Guard has primarily been used to assist in the distribution of personal protective equipment to hospitals and healthcare facilities.  In New York, the National Guard has been used to provide logistical and administrative support to state and local governments.  It is anticipated that the role and activation of the National Guard will increase as COVID-19 pandemic response efforts continue.  Furthermore, Defense Secretary Mark Esper is considering a national activation of U.S. reserve forces to assist states in responding to the virus.  What does this mean for employers who have employees activated by the National Guard or Reserve to take part in these response efforts?

One of many ways that our nation demonstrates its commitment to the men and women in active military service is by promising service members that the civilian jobs that they left when they deployed will be there for them when they return home.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job and benefit protections for members of the uniformed services, and generally allows employees to take up to five years of leave from their civilian jobs to perform military service.  Employers need to be mindful of their legal obligations under USERRA.  Here is a brief primer.

USERRA has two primary purposes: (1) to protect employees from discrimination based upon their military service; and (2) to protect the job of the employee when he or she returns from military service.  USERRA also precludes retaliation against individuals because they exercised their right to perform military service, or testified or made a statement in connection with any proceeding or investigation under the Act.  USERRA applies to virtually all U.S. employers, regardless of size.

While an employee’s entitlement to reinstatement after military leave is the linchpin of USERRA, there are a number of conditions that have to be met.  First, the service member must have given his or her employer written or verbal notice of the call to service, unless military necessity made it impossible or unreasonable to do so.  Second, the period of military service must not have exceeded five years.  Additionally, the employee must have been released from military service under honorable conditions.  Finally, the employee, upon return from military service, must timely apply for re-employment, or give notice of intent to return to his or her job.

The period an individual has to apply for re-employment or report back to work after military service is based on the time spent on military duty.  For military service of less than 31 days, the service member must report back to work at the beginning of the first regularly scheduled work period on the first full day after his or her release from military service, taking into account safe travel home, plus an eight-hour rest period.  No application is required.  For military service of more than 30 days, but less than 181 days, the service member must submit an application for re-employment within 14 days of release from military service.  For military service for more than 180 days, the service member must submit an application for re-employment within 90 days of his or her completion of military service.

USERRA prohibits employers from automatically reinstating service members into the same position, at the same compensation, they served in prior to entering the military.  Instead, USERRA requires that employers re-employ returning service members in the job/position that they would have attained had they not been absent for military service, with the seniority, status and pay they would have attained, as well as other rights and benefits determined by seniority.  In other words, if the service member would have been promoted had he or she not been on military leave, the employer must reinstate the service member into the promoted position.  This is commonly referred to as the “escalator principle.”  Furthermore, if the returning service member has not been properly trained for the escalated position, the employer is obligated to provide whatever training is needed.  If the training efforts are not successful and the returning service member cannot qualify for the “escalator” position, then the employer is still required to re-employ the service member in his or her previously held position or an alternate position, of equal status and pay.

USERRA does provide employers with some limited exceptions to re-employment or reinstatement.  The employer does not have to re-hire a returning service member if:

•           Workplace conditions have so changed as to make such re-employment impossible or unreasonable;

•           Re-employment of the returning service member would create an undue hardship to the employer; or

•           The employment of the service member prior to military service was very brief and there was no reasonable expectation that employment would continue for a long time.

Employers who violate USERRA can be sued by the federal government or by employees.  Remedies for violating USERRA include compensation for lost wages and benefits, and in the case of willful violations, an equal amount as liquidated damages.  Furthermore, the definition of “employer” as set forth in USERRA is more expansive than other federal statutes, and in some cases, imposes individual liability on “individual supervisors and managers” who have been delegated control over employment opportunities. In sum, given the likelihood of increasing numbers of service members being activated to take part in COVID-19 pandemic response efforts, employers should make sure they have a military leave policy and understand their obligations under USERRA.  Because these obligations can be complex, especially reinstatement issues, employers should not hesitate to consult with counsel to ensure that they meet their obligations.