Employer Obligations to Employees in the Uniformed Services

With more and more Reservists being called up for active duty amid the threat of impending war, employers are becoming more and more concerned about obligations to their employees who serve in the uniformed services. The primary federal law regulating the employment rights of members of the uniformed services¹ is known as USERRA, or the Uniformed Services Employment and Reemployment Rights Act of 1994.² USERRA protects employees (1) by prohibiting employment discrimination based upon military service, (2) by providing COBRA-like continuation for health care and pension benefits for employees who are absent from work due to military service, and (3) by providing for prompt reemployment and accrued seniority upon the employee’s return from military service

Does USERRA apply to me or to my company? Almost certainly, the answer is yes. USERRA applies to private employers regardless of size, revenues, or number of employees, as well as to the Federal, state, and local governments. USERRA is not applicable, however, to employees whose positions are for a “brief, nonrecurrent period” and there is no expectation that the employment will continue indefinitely.

Do I have to hire someone in the Reserves? While you’re not “required” to hire someone in the Reserves, you are prohibited from discriminating against someone because of his or her military status. You should make your hiring decision (and all other employment decisions as well) without regard to the applicant’s military status.

Do the USERRA rules apply to employees who volunteer for military service? Yes. Before USERRA’s enactment in 1994, protections were provided only for involuntary military service. Now, there is no distinction.

Do the USERRA rules apply to employees when absent from work for only short periods, i.e. weekend Reserve training, etc.? Yes, the law even provides protection for employees with minimal service periods. It also applies to a service member performing funeral honors, who is absent from work only for a few hours.

What does the employee have to do? Employees who are going to be absent from work for military service are required to give advance notice to their employers, if it is at all possible. Failure to give notice may be excused if due to “military necessity” or otherwise impossible or unreasonable. Employees are not required to “ask permission” of their employers to be absent for military service.

One of my employees just told me that he is being called into active service. Now what should I do? First, thank him for his service to our country! Then, ask if he knows how long he will be gone. He may have been given an estimated tour of duty. Next, find out what he wants to do about accumulated leave time. He is permitted (but not required) to use any accumulated paid leave during his absence for military service. Finally, ask about continuation of health benefits. USERRA permits employees to continue coverage for themselves and/or their dependents for up to 18 months during an absence for military service.

Am I required to pay for his health insurance while he’s gone? No, you’re not. Employees who are absent for less than 31 days may be required to pay the normal employee portion of their insurance premiums; employees absent for more than 30 days can be required to pay 102% of the full cost of their insurance premiums.

What about employer contributions on an employee’s behalf to a pension plan? If the employee is absent for 90 days or less, you must make regular contributions as if the employee were still actively working. If the employee is absent for more than 90 days, you may wait until the employee returns from service and provides adequate documentation about his or her service. But you will have to make pension contributions retroactively once he or she provides documentation.

What if my contributions are based on the employee’s salary? Use the salary he would have received if he hadn’t been absent for military service. If that can’t be determined, use his average rate of compensation for the 12-month period preceding his absence.

Do I have to continue to pay the employee while he’s gone? Most likely, no. Private employers are not required by USERRA to pay an employee’s salary while the employee is absent for military service. Employers may be required to do so by the terms of a collective bargaining agreement or employment contract, however. Virginia and Tennessee have state laws requiring state and local governments to provide their employees with 15 days of paid military leave each year and/or each tour of active duty. This may be extended in certain instances, including if the employee is in the National or State Guard and is called up by the governor for service to the state. Federal government employees also are entitled to 15 days of paid military leave annually.

Do I have to keep an absent employee’s job open while he’s gone? No, you don’t necessarily have to keep the job “open,” but the service member will most likely be entitled to it or its equivalent if he returns within five years.

What should I do about a replacement worker? USERRA does not protect anyone but those in the unformed services. Accordingly, a returning service member has priority over replacement workers.

When an employee returns from military service, am I required to re-hire him? Yes, providing certain conditions are met. The employee must (1) have given notice before his absence (unless notice is excused as discussed above), (2) have been absent for military service for less than five years cumulatively during his employment,³ (3) not have been dishonorably discharged from military service, and (4) report back to you in a timely manner upon completion of service. Also, an employer may not be required to reemploy a person if the circumstances have changed so as to make reemployment impossible or unreasonable (for instance, the factory in which an employee worked has been closed down), retraining the employee (see below) would cause an undue hardship on the employer, or the employee gave notice of his intent not to return before he left for military service.

How quickly must a returning employee contact his employer? If the employee was absent for less than 31 days of military service, he must report back to work on the first regularly-scheduled work period after an eight-hour rest period following the time he returned home. So, if the employee normally worked from 8:00 a.m. to 5:00 p.m., Monday through Friday and was gone for two weeks, then, returned home at 11:00 p.m. on Thursday evening, he would be expected to report to work at 8:00 a.m. the next morning. If the employee was absent for 31 to 180 days, he has 14 days from completion of service to apply for reemployment. For absences of 181 days or more, the employee has 90 days from completion of service to apply for reemployment. All of these time periods may be extended if it is impossible or unreasonable for the employee to meet the deadline, or if the employee was recovering from a service-connected injury or illness.

What kind of job do I have to give the employee upon his return to work? Generally speaking, you must treat the employee as if he was not absent for military service. The “escalator principle” provides that an employee must be given the position he would have held if he had not been absent, including the seniority, status, and pay that go along with that position.

What if the employee was gone for a long time and can’t do the same job because his skills are rusty or outdated? USERRA provides a detailed framework of priority for reemployment, depending upon the length of the employee’s absence for military service.

If the employee is absent for less than 91 days, he is entitled, first, to the position he would have held if he had been continuously employed. If he is not qualified to perform the duties of this job, the employer must make “reasonable efforts” to qualify him to perform those duties, including retraining for the job. The employer is not required to make such efforts if they would impose an “undue hardship.”⁴ If, after such reasonable efforts, the employee is still not qualified to perform the job, the employer must place him in the position he held before he left for military service (subject to the same requirements for retraining, if necessary). If reasonable efforts to retrain cannot qualify him to perform either position, the employer must place the employee in a position that most nearly approximates the positions described above (in order), with full seniority.

If the employee is absent for more than 90 days, the employee is entitled, first, to the position he would have held had he not been absent, or to a position of like seniority, status, and pay, subject to the same requirement of reasonable efforts to retrain. Second, the employee must be placed in his old position, or a position of like seniority, status, and pay. If the employee remains unqualified after reasonable retraining efforts, he must be given a position that most nearly approximates the positions described above (in order), with full seniority.

What if the employee returns from service and is disabled? If an employee returns and is disabled by an injury or illness that occurred in or was aggravated during military service, the employer must make reasonable efforts to accommodate the disability, so as to place the employee in a position determined by the priority framework described above. If accommodation isn’t possible, the employee must be given any other position that is equivalent in seniority, status, and pay that the employee is qualified to perform or can become qualified to perform after reasonable efforts by the employer. Otherwise, the employee must be placed in a position that he is qualified to perform that most nearly approximates the positions described above in terms of seniority, status, and pay.

I have two employees who are Reservists and both have been called up to active duty. To whom do I give priority if they both return? Priority goes to the person who earlier left for military service. However, persons with veteran preferences under the Veterans Employment Opportunities Act of 1998 have claims to reemployment that are superior to those persons with rights under USERRA.

Ordinarily, employees have a waiting period for health insurance benefits after they are hired. If an employee’s coverage was cancelled during military service, is he subject to a waiting period when he returns? No. Employees returning from military service are not subject to waiting periods or other exclusions if their coverage was terminated by reason of service in the uniformed services.

My business’ pension benefit plan is based on seniority and length of continuous employment. How do I treat an employee who was absent because of military service? As described above, you are liable for contributions during his period of absence as if he were employed. Additionally, time spent in military service is treated as time spent in employment for purposes of pension plan participation, accrual of benefits, nonforfeitability, etc.

I have an employee who is a Reservist and was called to active duty. He then returned to work, but now wants to take leave under the Family and Medical Leave Act. Am I required to give him FMLA leave, even though he hasn’t been back for 12 months and hasn’t worked 1250 hours in the last year? Although USERRA itself does not address FMLA benefits for reemployed service members, the Department of Labor has developed a policy by which the period of absence for military service is counted toward the length of service and hours worked requirements of the FMLA.⁵ Therefore, if the period of his initial employment, his absence for military service, and his reemployment period combine to meet the requirements of the FMLA, he is entitled to FMLA leave.

An employee returned to work after completing his military service, but now I want to fire him. I’ve heard that I can’t fire him now. Is this true? It depends on the reason for the discharge, the length of time he was absent, and how long he has been back in your employ. An employee who was absent for military service for more than 30 days but less than 181 days, cannot be discharged within 180 days of his reemployment. If the employee’s service period was more than 180 days, he cannot be discharged within one year. However, these restrictions do not apply to any discharge “for cause.”

What can happen to me if I don’t comply with the USERRA rules? You may be ordered to comply and to compensate the person for any loss of wages or benefits. If a court finds that your noncompliance was willful, you may also be ordered to pay the person twice the amount of lost wages or benefits. If the employee incurs court costs or attorneys’ fees, you may be ordered to pay those, as well as expert witness fees and other litigation expenses.

Is there a time limit for someone to complain that I didn’t comply with the USERRA rules? No. USERRA specifically provides that there is no statute of limitations on claims involving violations of the law.

I had a former employee complain that I violated USERRA and now I’ve received a subpoena from someone in the Department of Labor. I thought only judges could issue subpoenas. Do I have to comply with it? Yes. USERRA provides subpoena power (and other powers) to the Secretary of Labor when investigating alleged violations by private employers.

Isn’t it very difficult for an employee to prove that I violated the USERRA rules? In allegations of USERRA violations, the employer bears the burden of proof that the same action would have been taken if the employee had not been in the uniformed services.

Dawn Figueiras