Working Together

Since the law has been on the books for over a decade, most employers know that employees serving in our armed services who are called to active or reserve duty are entitled to job reinstatement, within certain parameters, once that service is complete. That law is, of course, the Uniformed Services Employment and Reemployment Rights Act of 1994, As Amended (38 U.S.C. Section 4318) and its regulations (20 CFR 1002 et seq.) (“USERRA” or the “Act”).. But due to the number of inquiries that we have received recently from clients who are struggling with figuring out how to grant leave or return employees to work under the law, a refresher seems in order.

USERRA prohibits employers from discriminating against employees and job applicants who are past and present members of the armed forces, as well as armed services applicants. Discriminatory conduct can be the failure to hire or promote, and retaliatory activity relating to an employee’s service.

The questions we tend to get from employers typically focus more on the steps these employers must take to properly support their serving employees/applicants.

The first step is to determine if the employee/applicant qualifies for protection under the Act. An employee is eligible for reemployment if he or she meets all of the following 5 criteria:

1. The service member is absent from a civilian employment because of service in the uniformed services;

2. The service member’s employer has been given advance notice of the service;

3. The service member has five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer;

4. The service member has returned to work or applied for reemployment in a timely manner after conclusion of service; and

5. The service member must have been honorably discharged if his or her service is completed.

Timely application for reemployment is somewhat fact specific based on the amount of time an employee has served. For example, an employee who is returning from reserve service which was for only a few days must report back to work very quickly. In such a case this short duration leave is treated similar to other short term leaves where the employee must return back to work within a day or so of service. But where the military leave is in excess of 30 days or even in excess of 180 days, the employee has several weeks in which to notify his or her employer of the desire to return. The rationale here is simple, these longer military leaves are disruptive to the employee and his or her family and some additional time to re-acclimate is warranted before the employee is obligated to notify his or her employer.

Second, an employer need not reemploy (or hire) a returning service member where circumstances of the employer have changed so materially that the reemployment of that person by the employer would be impossible or unreasonable. Reductions in force or restructuring of the business may be sufficient grounds to deny reinstatement, but it is a violation of the Act for an employer to simply take the position that because all jobs are filled, there is not an opening for the service member. And mere inconvenience is not a justifiable reason not to hire or reemploy a service member.

Third, once a service member requests reemployment, the reinstatement must occur within two weeks of that request absent extenuating circumstances.

Fourth, after rehire, that employee is afforded special protection in employment depending on that employee’s length of military service. If the employee has served in the military for over 180 days then he or she cannot be discharged without cause for at least one year. But if that employee was in military service for a period between 31 and 180 days, that “for cause” protection will only exist for 180 days. For service of 30 days or less there is no “for cause” protection but that returning employee will be generally protected by the anti- discrimination provisions of the Act.

USERRA does require some close scrutiny by employers wishing to properly adhered to its provisions. If you are unsure about your compliance, call before acting as the penalties for noncompliance can be severe.