Have Workers in the Military? The 4 USERRA Requirements You Should Know

No. 1: The law applies to all employers

Allen Smith, J.D. By Allen Smith, J.D. March 9, 2017

​U.S. employees who take leave from work to participate in military service have the right to be reinstated to their old jobs under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Many employers, though, don't realize that the law applies to them, according to Rosanne Sattler, an attorney with Posternak, Blankstein & Lund in Boston.

The law's basic purpose—to provide re-employment rights to those returning from military leave—isn't hard to understand. But employers also need to understand its "escalator provision," grace period before discharge and notice requirements.

1. Coverage

"Unlike the FMLA [Family and Medical Leave Act] and other employment laws, USERRA applies to all employers regardless of size," she said.

Rural employers in particular don't understand that USERRA's reinstatement rights apply to all businesses, according to Travis Bickford, associate director of military and veterans relations at William James College in Newton, Mass. It's not employees in white-collar jobs who are struggling to get their jobs back at the end of their military service but more typically employees in blue-collar jobs in rural environments who—in violation of the law—aren't being reinstated, he asserted.

 [SHRM members-only toolkit: Managing Military Leave and Military Family Leave]

2. Escalator Provision

Under the law, employees returning from military leave are entitled to the job they would have attained had they not spent time serving their country. This so-called escalator provision can be difficult for employers to grasp. An employee not only comes back to at least the same pay, benefits and seniority that he or she would have had but also is entitled to the pay increases he or she would have gotten, said David Henderson, an attorney with Nutter in Boston. The escalator provision may result in a returning employee getting a promotion.

But the escalator requirement "goes up and down," he explained. If an employer demotes or lays off co-workers in the position that an employee held at the beginning of military leave, the company might lawfully demote or lay off him or her.

If the workforce is unionized, the escalator provision is easy to comply with—just put the member of the military into a position based on his or her years of service, said Michael Morea, an attorney with Cole Schotz in Hackensack, N.J. But for nonunionized workforces, the employer will have to look to other employees in similar positions to determine where the individual will be reinstated, he added.

The law has time frames for employees returning from military leave to report to work. For periods of military service 30 days or less, the employee must report back to work at the next regularly scheduled shift on the day following release from the military and eight hours of rest. For a period of 31 to 180 days of military service, the employee must apply for re-employment within 14 days following release. For a period of service of 181 days or more, the individual must apply for re-employment within 90 days after release. When applying for re-employment, the employee should explain that he or she left that employer to perform military service, has completed the service and wants to be reinstated.

3. Grace Period

There is a grace period following the employee's return during which the individual can be discharged only for cause. If the period of service was 181 days or more, the person is protected from discharge, except for cause, for a year. If the service was for 31 to 180 days, the period of protection from discharge is 180 days.

Sometimes employees get their jobs back initially but lose them after the grace period expires, Bickford noted. The returning employee may be underperforming because of post-traumatic stress disorder and returned too soon, he said. This puts the employee at risk of termination, particularly once the grace period has expired, although USERRA provides that an employee who is disabled due to military service must be accommodated in a position most nearly approximating the original job. The Americans with Disabilities Act also may apply to the person.

4. Notice

While much of the attention paid to USERRA is on its requirements for reinstatement, employers should be careful when an employee requests military leave. Notice of military leave does not have to be written, Sattler cautioned.

All written or verbal orders are valid when issued by competent military authority, according to the U.S. Department of Justice (DOJ) in Employment Rights of the National Guard and Reserve. A military member in receipt of orders is obligated by federal statute to follow them. The recurring requirement to perform inactive duty training, such as a drill, is one instance when written orders may not be formally issued.

After military leave of more than 30 days, the employer has the right to request documentation, which can be used to establish the employee's eligibility for protection under USERRA. All National Guard and reserve members are encouraged to provide a copy of orders, the annual drill schedule or other type of documentation to employers as soon as available and, if possible, before the commencement of military duty, the DOJ noted.

But an employer may not require documentation for notification prior to military duty, the DOJ stated. Further, an employer does not have a "right of refusal" for military leaves, as long as the employee has not exceeded the five years of cumulative service provided under USERRA.

When military duties would require an employee to be absent from work for an extended period, during times of acute need, or when—in light of previous leaves—the requested military leave is cumulatively burdensome, the employer may contact the commander of the employee's military unit to determine if the duty could be rescheduled or performed by another member, the DOJ stated. If the military commander determines that the military duty cannot be rescheduled or canceled, the employer is required to permit the employee to perform his or her military duty.

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