Employers must follow rules for enlisted staff members

The Uniformed Services Employment and Reemployment Rights Act, or USERRA, provides broad protections to employees serving in the military. USERRA applies to all employment relationships, beginning upon hiring, and exempts only employees receiving less-than-honorable discharges. USERRA prohibits discrimination or retaliation based on past, current or future military obligations; allows employees to take a military leave of absence and provides a qualified right to subsequent reinstatement.

Employees who provide written or oral notice are entitled to leaves of absence for military service, including training and fitness-for-duty examinations. Employers may request copies of military orders, but they may not condition leave upon receipt of those orders. USERRA also waives the notice requirement if military necessity prevents advance notice or providing it is otherwise impossible or unreasonable.

USERRA does not require employers to pay employees on military leave. An employee’s accrued paid time off may be applied to all or a portion of the leave upon the employee’s request. An employer, however, may not require the employee use any accrued paid time off. Additionally, employers must continue any employer-sponsored health benefits for employees on military leave of less than 31 days and who pay their share of the cost. Employees absent for 31 days or more must be allowed to elect continuation coverage.

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The greater potential quandary for employers is responding to employees requesting reinstatement. USERRA requires an employee be reinstated “reasonably” promptly, unless the employer can show the previously held position was brief and nonrecurrent, or changed circumstances make reinstatement impossible or unreasonable.

An employer must reinstate an employee on military leave of fewer than 31 days if the employee reports to work at the beginning of the first regularly scheduled workday falling eight hours after the end of the calendar day when the employee concluded military service. If an employee discharges from military service on Tuesday at 6 p.m., the employer could require the employee report to work at 8 a.m. Wednesday morning. If, due to no fault of the employee, reporting to work under these terms would be unreasonable, the employee must report as soon as possible.

Employees absent 31 to 180 days must apply for reemployment no later than 14 days after completing military service. Employees serving at least 181 days must apply for reemployment no later than 90 days after completing military service. These timelines may extend up to two years under certain circumstances. If an employee fails to report to work or request reinstatement within these timelines, the employee will be subject to the employer’s unexcused absences policy.

If the employee served fewer than 91 days, the employer should reinstate the employee, if qualified, to the position in which the employee would have been employed but for military service. If the employee served 91 days or more, the employer should reinstate the employee, if qualified, to the position in which the employee would have been employed if his or her employment had not been interrupted by such service or to a position of like seniority, status and pay. The employer must make reasonable efforts to help the employee become qualified, which could include training.

A reinstated employee is entitled not only to the seniority, rights and benefits enjoyed before military service but also the additional seniority, rights and benefits the employee would have acquired if continuously employed. The employee must be treated as if no service break occurred; leave time must be counted as service time for any pension and/or other retirement plan.

USERRA destroys the at-will status of employees reinstated after more than 30 days of military service. Employees reinstated after performing 30-180 days of military service cannot be discharged except for cause (misconduct or other legitimate nondiscriminatory reason) for 180 days following reinstatement. Employees reinstated after performing at least 181 days of military service cannot be terminated except for cause for one year.

Employees may file USERRA complaints with the Veterans Employment and Training Service or file a lawsuit. USERRA does not have a limitations statute and specifically precludes any state limitations statute. Employees may not, however, unreasonably delay asserting USERRA rights. If the employee’s delay prejudices the employer, the employee may be barred from litigation. USERRA damages available include lost wages and benefits and an amount equal to lost wages and benefits as liquidated damages for “willful” violations.

Jay M. Dade is Of Counsel with Shughart Thomson & Kilroy PC in Springfield, focusing his practice on management-side labor and employee relations law. He may be reached at jdade@stklaw.com. [[In-content Ad]]