In wake of the mobilization of our military for war, employers should refresh their understanding of their legal responsibilities under the Uniformed Services Employment and Re-employment Rights Act ("USERRA").
This federal law, passed in 1994, expands civilian employment rights of veterans and reservists placing complex and stringent requirements on their employment relationships. Employment issues comprehensively addressed include health insurance coverage, pension plan benefits, re-employment rights of employees returning from service, temporary exemptions from the employment-at-will doctrine, and specific accommodations for disabled veterans. Those companies who violate USERRA may be liable for back pay, lost benefits, attorney fees, and may be required to re-employ the veteran.
The following questions and answers are designed to provide a general overview of the major provisions of the Act:
- Who is covered by the Act?
- USERRA covers virtually all employers and includes any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities or any person, institution, organization or other entity to whom an employer has delegated employment-related responsibilities. USERRA protects employees who must be absent from employment by reason of service in the uniformed services. Such service includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and any period for which an employee is absent from his or her position for an examination to determine his or her fitness for any duty listed above. "Uniformed services" comprises the Armed Forces, Army and Air National Guard (when engaged in active duty for training, inactive duty training, or full-time National Guard duty), the Public Health Service Commission Corps and any other category of persons that the President of the United States designates during war or emergency.
- What type of discrimination is prohibited by USERRA?
- USERRA prohibits employers from failing or refusing to hire, re-employ, retain, promote or provide any other benefit of employment, if a motivating factor for the decision is the individual's membership, application for membership, past, present or future performance, application or obligation to perform service in the uniformed services. Also, the Act prohibits employers from taking adverse employment against any person because the person exercises a right under the Act, acts to enforce a protection of the Act, gives testimony or a statement in connection with any proceeding under the Act or otherwise assists or participates in an investigation under the Act.
- What are an employee's basic rights under USERRA?
- A person who is absent from employment by reason of service in the uniformed services is entitled to re-employment rights and benefits, provided the person satisfies certain requirements under the Act. Re-employment includes the seniority (and all other rights and benefits determined by seniority) that the person had on the date he or she commenced service in the uniformed services plus whatever seniority and rights and benefits the person would have attained, with reasonable certainty, if he or she had been continuously employed.
- Does USERRA coverage extend to employer health plans?
- Yes. USERRA provides that employees who are on military leave and their dependents are eligible to elect to continue their health coverage for up to 18 months. If an employee's period of military service exceeds 30 days, an employer can charge up to 102% of the premium for such coverage. If an employee's period of service is less than 31 days, the employer can charge only the amount other employees paid for similar coverage.
- Do re-employed veterans have any rights under an employer's retirement plan?
- Generally, a re-employed veteran must be put in the same position he or she would have been in had he or she not served in the military. Consequently, re-employed veterans must receive credit for the period of military service for purposes of eligibility, vesting, and benefit accruals. Additionally, if the employer has a defined contribution plan, a re-employed veteran must be given the opportunity to make up the 401(k) or after-tax contributions that could have made if he/she had not served in the military and receive the employer contributions that would have been received had he/she not served in the military.
- What is the time limit on re-employment rights?
- USERRA provides that an individual is entitled to up to five years of absence from his/her employer for military service while retaining re-employment rights. There are, however, exceptions to this five-year limit. One exception is that any service required beyond five years to complete an initial period of obligated service is excluded from the time limit. Also, service during a period when a person is unable, through no fault of his/her own, to obtain release orders and resulting in expiration of the five-year period is not included.
- Is advance notice of military service required in order to receive USERRA re-employment rights?
- Either the person who is going to be absent or an appropriate officer of the uniformed service must give advance written or verbal notice to the employer. An employer may not deny reinstatement, however, if no notice was given because giving notice was precluded by military necessity or, under all relevant circumstances, was impossible or unreasonable.
- Are there any time limitations on which a returning veteran must notify the employer of an intent to return to work?
- Yes. An application for re-employment must be submitted within a time period which is based on the amount of time away from the employer. If the period of service in the uniformed services was less than 31 days, the person must report not later than the beginning of the first full regularly scheduled work period on the first full calendar day after the person completes service. An allowance is made, however, for the person's safe transportation from the place of service to his/her residence plus an eight-hour period. If this is impossible or unreasonable through no fault of the returning veteran, then the returning veteran must give notice as soon as possible after the eight-hour period.
A veteran who has been absent for more than 30 but less than 180 days must submit an application no later than 14 days after completion of service. Again, if meeting the deadline is impossible or unreasonable, the next first full calendar day when making application is possible is sufficient. Persons serving more than 180 days have 90 days after completion of service to reapply. Generally, a veteran who is hospitalized or convalescing from a service-related injury or illness is allowed up to two years for recovery before notice deadlines apply.
A failure to reapply within a timely manner does not automatically forfeit an employee's entitlement to re-employment and other benefits. Certain exceptions apply and should be consulted prior to denying re-employment rights to a returning veteran who has not filed an application for re-employment within a timely manner.
- Is any documentation required when applying for re-employment?
- Yes. Returning veterans must provide employers with documents which establish that they have not exceeded service limits under USERRA, that the application is timely, and that their discharge from the military was not due to bad conduct or dishonorable discharge. An employer may not, however, deny re-employment or delay re-employment on the basis of a failure to provide documentation. Conditional re-employment must be given subject to the returning veteran's timely fulfillment of the documentation requirements.
- To what type of job is a returning veteran entitled?
- If an individual was absent for less than 91 days, he/she must be re-employed in the position he/she would have attained had the person's employment not been interrupted by service, or if the individual is not qualified to do such job, in a position the person last held. If the period of service was for more than 90 days, the person must be re-employed either in the position he/she would have attained if the employment had not been interrupted or one of like seniority, status and pay. If the person is not qualified for the position he/she would have attained he/she must be reinstated to the position last held, or one of like seniority, status and pay. It is important to note that employers must make reasonable efforts to qualify a person before concluding that the person is not qualified to perform the duties of a position.
- Does USERRA require re-employment of all returning veterans?
- No. A person loses the protection of USERRA if he or she receives a dishonorable or bad conduct discharge from the uniformed services or if he or she is discharged under other than honorable conditions as characterized in regulations of the relevant Secretary. A person also loses protection if he or she is dismissed or dropped from the roles.
Also, there are certain very limited circumstances under which an employer may not be required to employ a returning veteran that would otherwise be entitled to re-employment benefits. An employer can deny re-employment if the employer's circumstances have changed so as to make re-employment impossible or unreasonable, if employment of the person would impose an undue hardship on the employer, or if the employment the veteran left was for a brief, non-recurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a significant period. In these cases, the burden rests with the employer to prove the reason for the denial of re-employment.
This is only an overview of USERRA and its major provisions. There are other aspects of the Act not covered herein, and experienced employment counsel should be consulted when an issue under this Act arises.