This blog dives into general concepts of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
USERRA is creature of federal law which provides protection to employees in the military. In general, USERRA provides a guaranteed place of employment upon returning from military leave, which includes service or training. By place of employment, USERRA specifically guarantees the right to be reemployed at an employee’s job with the same or nearly comparable position accompanied with the same benefits.
USERRA applies to employers of all sizes including the federal government. In order to be eligible for reemployment, an individual must satisfy certain requirements. As defined in the statute, rights of reemployment extend to individuals who have been absent from work due to “service in the uniformed services”.[i] Service in the uniformed services is broadly defined as performance of duty on a voluntary or involuntary basis in a uniformed service. [ii]Examples include active duty, active duty for training, initial active duty for training, inactive duty for training, full time National Guard duty, and absence from work for an examination used to assess an individual’s duty for fitness.[iii] This is not an exhaustive list, for more qualifying acts of service, see here.
Moreover, uniformed services consist of the Army, Marine Corps, Navy, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve, Army National Guard and Air National Guard, Commissioned Corps of the Public Health Service, or any group of individuals authorized by the President in a time of war or emergency.[iv]
USERRA’s reemployment rights are only applicable where an individual ‘s cumulative absence from work does not exceed five years. Upon returning back to work, a service member must return within a specified time frame. This time frame is based on the length of service. By way of example, a service member whose military service took place for 1 to 30 days must report back to work on the first regularly scheduled work date that is one day after the completion of service. However, this temporal requirement has accompanying limitations. The service member must be permitted travel time for a safe return back to work following military service and an 8-hour rest period. Where a service member finds an impediment such as impossibility or unreasonableness to return to work on the date given, the service member must report to work as soon as possible. This flexibility is only permitted when faced with an obstacle as described in the preceding sentence and through no fault of the service member. For additional time frames for reporting back to work following duty, see here.
The type of reemployment position is also dependent upon the length of service absent a disability incurred or aggravated by service. For example, an individual whose service lasted from 1 to 90 days, must be promptly reemployed in first a job the individual would have held barring reporting for duty.[v] The individual must be deemed qualified for the position or can become qualified following the employer’s reasonable efforts.[vi] Where unavailable, the individual must be promptly reemployed in a position which the individual was employed on the date of the start of service in the uniformed services.[vii] However, this is only where the individual is unqualified to perform the duties of the position the individual would have been returned to absent reporting to service and reasonable efforts by the employer. [viii] This hierarchy is premised upon the escalator position principle. Under this principle, it is required that every returning service member is reemployed into the position the service member would have been in with reasonable certainty if employment was continuous and with full seniority.
In sum the main takeaways from this blog are two-fold: military members have rights to reemployment following reporting for duty and their reemployment position is based upon their length of reported service. It is on the employer to ultimately provide benefits, including pay, to employees on a leave of absence. USERRA requires that employers offer the most favorable treatment accorded to any comparable form of leave when an employee performs service in the uniformed services.