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USERRA: Employer Responsibilities to those Returning from Active Military Service
August 30, 2012
As the U.S. involvement in conflicts around the world continues to draw down, hundreds of thousands of veterans are returning to the civilian work force. In fact, more than 100,000 troops are estimated to return to the workforce in the next three years.

Many of these service members were employed in the private sector prior to their military service. The Uniform Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq., protects individuals who leave their employment, voluntarily or involuntarily, to serve in the military by imposing various obligations on employers with respect to those returning from military service. While USERRA has been in force since 1995, with the recent influx of veterans returning to the workforce, it is important for employers to understand their obligations under USERRA.

The definition of employer under USERRA is broader than other employment statutes and is broad enough to include every employer in the United States. Moreover, those who “serve” in the military/uniformed services is also broadly interpreted to include the Armed Forces and Reserves, the National Guard, the commissioned corps of the Public Health Service and those designated by the President in times of war or national emergency.

Qualifications for Reemployment

Under USERRA, a returning service member is eligible for reemployment upon meeting specific requirements. First, prior to entering military service, an employee is required to notify his employer of the upcoming military service unless military necessity precludes such notice. An employee is eligible for reemployment if the cumulative length of military service/absence from employment does not exceed five years. The returning service member must not have received a dishonorable or bad conduct discharge, or a discharge under other than honorable conditions. Finally, to qualify for reemployment, the veteran must submit an application for reemployment within certain time periods. For example, veterans serving more than 180 days must apply for reemployment within 90 days following the end of their service.

Reemployment Scheme

Once a veteran qualifies for reemployment, an employer is obligated to reemploy the veteran. Reemployment must generally occur within two weeks of the employee’s application for reemployment. It is important to note that not all reemployment positions are created equal under USERRA; the Act adopts a tiered reemployment scheme.

First, an employer must seek to reemploy the veteran in an “Elevator Position,” which is the original position plus any advancement the person would have received if his employment had not been interrupted by military service. If the person served for more than 90 days, he can be reemployed in the Elevator Position or a position of “like seniority, status and pay” as the Elevator Position. If the veteran does not qualify for the Elevator Position after reasonable efforts by the employer to qualify the veteran for the Elevator Position, then the veteran must be reemployed in the position he occupied prior to entering military service. Again, for those who served more than 90 days, if the actual prior position is unavailable, he must be reemployed in a position similar in “seniority, status and pay” to the prior position.

Reemployment of Disabled Veterans

Many former employees return from active duty with injury or other disability resulting from or aggravated by their military service. For those suffering from a disability that renders them unable to perform the Elevator Position, an employer must reemploy the disabled employee in any other position that is equivalent in “seniority, status and pay” to the Elevator Position. If reasonable efforts or training would qualify the veteran for the position, the employer must undertake such efforts to qualify the veteran for the position. If no equivalent position to the Elevator Position is available, then the employer must reemploy the veteran in a position as consistent as possible to the Elevator Position in terms of seniority, status and pay that is consistent with the circumstances of the veteran’s case.

An employer’s obligation under USERRA to reemploy a disabled veteran is much broader than the obligations imposed by the ADA.

Exceptions to Reemployment

USERRA provides limited exceptions to an employer’s obligation to reemploy. An employer is not required reemploy when:
  1. Change in Circumstances: An employer’s circumstances have changed such that reemployment is impossible or unreasonable. This includes a reduction in force that would have included the employee.
  2. Undue Hardship: Reemployment would impose undue hardship on the employer. Factors in evaluating undue hardship include the nature and cost of the action needed to reemploy, the overall financial resources of the employer and the type of employer operation.  
  3. Brief Non-recurrent Position: The employment prior to military service was for a brief, non-recurrent period and the employee had no reasonable expectation that employment would continue indefinitely or for a significant period.
It is the employer’s burden to prove that any of these defenses apply. Records for any reduction in force should be abundantly clear that the service member’s position was part of the reduction. Proving undue hardship is especially difficult considering the policy behind USERRA of providing reemployment to those who serve our country.

Alteration to At-Will Employment Relationship

A service member reemployed under USERRA may not be discharged from employment, except for cause, for a set period of time following reemployment. For employees who had more than 180 days of military service, they cannot be discharged without cause for one year after the date of reemployment. For veterans who served more than 30 but less than 181 days, the employee may not be terminated without cause for a period of 180 days following their reemployment.

Prohibition Against Discrimination and Retaliation

In addition to the reemployment rights under USERRA, the Act also treats veterans as a protected class. An employer is prohibited from discriminating against an employee if they (a) are/were a member of military service, (b) applied for membership in the military; or (c) are obligated to serve in the military. Likewise, an employer cannot retaliate against an employee who has sought to protect any right afforded by USERRA, exercised a right under USERRA, participated in an investigation under USERRA or testified or made a statement in connection with a USERRA proceeding.
Carrie H. Grundmann