Military Leave & Userra

The law encourages uniformed service so that the United States can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

To minimize the disadvantages that occur when workers need to be absent from their civilian employment to serve in this country's uniformed services, there is a federal law that provides for:

1. reemployment rights
2. health insurance protection
3. the right to be free from discrimination on the basis of military service and retaliation

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) 38 U.S.C. Sects. 4301-4333 seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service, by expanding the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights. USERRA also provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.

USERRA's reemployment rights potentially cover every individual in the country who serves in or has served in the uniformed services, whether voluntarily or involuntarily, and applies to all employers in the public and private sectors, including Federal employers.  The "uniformed services" consist of the following:

1. Army, Navy, Marine Corps, Air Force, or Coast Guard.
2. Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve.
3. Army National Guard or Air National Guard.
4. Commissioned Corps of the Public Health Service.

"Service" in the uniformed services covers all categories of military training and service, whether performed on voluntary or involuntary basis. It includes:

1. Active duty
2. Active and inactive duty for training
3. National Guard duty (federal, not state, duty)
4. Absence from employment for military-fitness examinations
5. Absence from employment under orders to perform funeral honors duty
6. Service as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or as a participant in an authorized training program by such appointee
7. Attendance at a United States military service academy

Unlike many other laws applicable to employees, such as anti-discrimination laws, the employer does not have to have a certain minimum number of employees to be subject to the law's requirements. There are no exceptions for federal or state government employees.

USERRA defines "employer" as: "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities," including:

1. a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;
2. foreign companies doing business in the United States;
3. foreign operations of American companies;
4. the Federal Government;
5. a State;
6. any successor in interest to a person, institution, organization, or other entity referred to in USERRA; and
7. a person, institution, organization, or other entity that has denied initial employment because of discrimination or retaliation prohibited by USERRA.

According to section 4311(a) of USERRA:

1. "A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services shall not be denied
2. initial employment,
3. reemployment,
4. retention in employment,
5. promotion,
6. or any benefit of employment
7. by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."

According to section 4311(c)(1):

1. "An employer may not discriminate in employment against or take any adverse employment action against any person because such person has
2. taken an action to enforce a protection afforded any person under this chapter,
3. has testified or otherwise made a statement in or in connection with any proceeding under this chapter,
4. has assisted or otherwise participated in an investigation under this chapter,
5. or has exercised a right provided for [by USERRA]."

This provision prohibits retaliation against any person, without regard to military connection, who testifies or otherwise assists in an investigation or other proceeding under USERRA.

When you return from military service, you must be reemployed in the job that you would have had if you had not been absent for military service (known as the "escalator" principle) and with the same seniority, status and pay, as well as other rights and benefits determined by seniority. The escalator principle requires that each returning service member actually step back onto the seniority "escalator" at the point the person would have occupied if the person had remained continuously employed.

The position may not necessarily be the same job you previously held. For instance, if you would have been promoted with reasonable certainty had you not been absent, you would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one you held previously, it could be a different job, or it could conceivably be in layoff status.

Reasonable efforts must be made to enable you to refresh or upgrade your skills so that you can qualify for reemployment. Employers must provide refresher training, and any training necessary to update your skills in a situation where you are no longer qualified for the job due to technological advances. Training will not be required if it is an undue hardship for the employer. If refresher training is not successful, USERRA provides that you must be reinstated in a position that most nearly approximates the position you originally held. If you are disabled (temporarily or permanently) due to military service, you must also be accommodated in a position most nearly approximating your original position.

USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. You can take leave as often as you need it due to activation to military service, subject to a five-year cumulative limit per employer in order to retain reemployment rights with that employer. If you get a different job with a new employer, you get a new 5-year limit.

The law requires all employees to provide their employers with advance notice of military service, but does not specify a particular length for the notice period. Circumstances arise, especially in a mobilization scenario, when you may have very little advance notice from military authorities. USERRA's purpose would be defeated if the lateness of the notice to the civilian employer prevented you from later becoming reemployed, especially when you had little or no notice from the military.

Notice may be either written or oral; a copy of their military orders is not required by the law. Notice may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:

1. military necessity (as designated pursuant to regulations prescribed by the Department of Defense) prevents the giving of notice; or
2. the giving of notice is otherwise impossible or unreasonable.
3. The Department of Defense advises employees to provide their employers with as much advance notice as they can.

The law protects from discrimination past members, current members, and persons who apply to be a member of any of the branches of the uniformed services or to perform service in the uniformed services.

The employer does not have the ability under USERRA to deny your request for leave. You are only required to give your employer notice, not to obtain permission. Your employer has no right to veto the timing, frequency, duration, or any other aspect of leave, and cannot require you to rearrange your schedule or find a replacement.

If you satisfy the requirements for USERRA protection, and have submitted a timely application for reemployment, your employer has a mandatory, judicially enforceable obligation to re-employ you. You do not have to prove that the refusal to re-employ you was based on bias against your military service.

The fact that the job has been filled and the new employee has proved to be a stellar performer does not defeat your legal right to re-employment. Sometimes it is necessary to displace another employee in order to reemploy the returning veteran. Congress recognized that this law imposes burdens on employers, and that sometimes those burdens can be severe. However, Congress decided that imposing such burdens on employers is justified by the national defense needs of our nation. You should not accept the employer's refusal to re-employ you under these circumstances. If the employer refuses to budge and give you your job back, it may be necessary to pursue a complaint against your employer.

If an employer is found to have violated USERRA, remedies available to the employee may include:

1. wages;
2. employment benefits;
3. other compensation or benefits denied or lost to the employee;
4. interest;
5. an equal amount in "liquidated damages" where the employer's action is found to be "willful." This is often called "double damages." "Willful" is not defined in the law, but the law's legislative history indicates the same definition that the U.S. Supreme Court has adopted for cases under the Age Discrimination in Employment Act should be used. Under that definition, a violation is willful if the employer's conduct was knowingly or recklessly in disregard of the law.

The employee may also obtain other forms of relief, such as:

1. employment
2. reinstatement
3. promotion

In addition to the relief described above, you may also recover from the employer:

1. reasonable attorney's fees
2. reasonable expert witness fees
3. other costs of the legal action.

If you believe your rights under USERRA have been violated, you can file a complaint either with a federal administrative agency (VETS of the Department of Labor) or in court. You may wish to consult with an attorney before making the decision about where to file and how to draft your complaint. Unlike some other employment laws, you are not required to first file with an administrative agency before filing in court. 

USERRA does not contain a statute of limitations, and it specifically bars application of state statutes of limitation. This means that there is no specific filing deadline, unlike most other employment-related statutes, which require you to bring your lawsuit within a specific time period after your employer's action(s) which you allege violated the law. However, for the best chance of success in resolving the complaint, the complaint should be filed as soon after the date of the last action thought to be a violation of USERRA as is possible, if you have been unable to resolve the problem through less formal means.