Veterans Reemployment Rights

The Uniformed Services Employment and Reemployment Rights Act, known as (USERRA), strengthened and expanded the employment and reemployment rights of all uniformed service members.

Who is eligible for reemployment?

Reemployment rights extend to persons who have been absent from a position of employment because of "service in the uniformed services." "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:

  • Active duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty training
  • Full-time National Guard duty
  • Absence from work for an examination to determine a person's fitness for any of the above types of duty
  • Funeral honors duty performed by National Guard or reserve members
  • Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Homeland Security - Emergency Preparedness and Response Directorate (FEMA), when activated for a public health emergency, and approved training to prepare for such service

The "uniformed services" consist of the following:

  • Army, Navy, Marine Corps, Air Force, or Coast Guard
  • Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve
  • Army National Guard or Air National Guard
  • Commissioned Corps of the Public Health Service
  • Any other category of persons designated by the President in time of war or emergency

The law provides an exemption from employer reemployment obligations if the employee's pre-service position of employment "is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period."

Advance Notice

The law requires all employees to provide their employers with advance notice of military service. Notice may be either written or oral. It 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:

  • Military necessity prevents the giving of notice; or
  • The giving of notice is otherwise impossible or unreasonable.

Duration of Service

The cumulative length of service that causes a person's absence from a position of employment with an employer may not exceed five years. Most types of service will be cumulatively counted in the computation of the five-year period.

Exceptions

Eight categories of service are exempt from the five-year limitation. These include:

  1. Service required beyond five years to complete an initial period of obligated service;
  2. Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit;
  3. Required training for reservists and National Guard members. The two-week annual training sessions and monthly weekend drills mandated by statute for reservists and National Guard members are exempt from the five-year limitation. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development;
  4. Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations;
  5. Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress. This category includes service, not only by persons involuntarily ordered to active duty, but also service by volunteers who receive orders to active duty.
  6. Active duty (other than for training) by volunteers supporting "operational missions" for which Selected Reservists have been ordered to active duty without their consent. Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty. This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Persons involuntarily ordered to active duty for operational missions would be covered by the fourth exemption, above;
  7. Service by volunteers who are ordered to active duty in support of a "critical mission or requirement" in times other than war or national emergency and when no involuntary call up is in effect. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement; and
  8. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States.

Disqualifying service

  1. Separation from the service with a dishonorable or bad conduct discharge.
  2. Separation from the service under other than honorable conditions. Regulations for each military branch specify when separation from the service would be considered "other than honorable."
  3. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war.
  4. Dropping an individual from the rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court.

Reporting back to work

Time limits for returning to work depend, with the exception of fitness-for-service examinations, on the duration of a person's military service.

Service of 1 to 30 days:

The person must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.

If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.

Fitness Exam

The time limit for reporting back to work for a person who is absent from work in order to take a fitness-for-service examination is the same as the one above for persons who are absent for 1 to 30 days. This period will apply regardless of the length of the person's absence.

Service of 31 to 180 days

An application for reemployment must be submitted no later than twenty-eight days after completion of a person's service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible.

Service of 181 or more days

An application for reemployment must be submitted no later than ninety days after completion of a person's military service.

Disability incurred or aggravated

The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service.

The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual's control that would make reporting within the two-year period impossible or unreasonable.

Unexcused delay

A person's reemployment rights are not automatically forfeited if the person fails to report to work or to apply for reemployment within the required time limits. However, the person will then be subject to the employer's rules governing unexcused absences.

Documentation upon return

An employer has the right to request that a person who is absent for a period of service of thirty-one days or more provide documentation showing that:

  • the person's application for reemployment is timely;
  • the person has not exceeded the five-year service limitation; and
  • the person's separation from service was other than disqualifying

Unavailable documentation

If a person does not provide satisfactory documentation because it is not readily available or doesn't exist, the employer still must promptly reemploy the person. However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person. The termination would be effective as of that moment. It would not operate retroactively.

Pension contributions

If a person has been absent for military service for ninety-one or more days, an employer may delay making retroactive pension contributions until the person submits satisfactory documentation. However, contributions will still have to be made for persons who are absent for ninety or fewer days.

How to Place Eligible Persons in a Job

Length of service

Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person's military service.

1 to 90 days:

A person whose military service lasted 1 to 90 days must be "promptly reemployed" in the following order of priority:

1. In the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person; Or
2. In the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to above; or after reasonable efforts by the employer to qualify the person.

If the employee cannot become qualified for either position described above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the person is to be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is able to perform, with full seniority. However, under certain circumstances, employers do not have the option of offering other jobs of equivalent seniority, status, and pay.

91 or more days:

The law requires employers to promptly reemploy persons returning from military service of 91 or more days in the following order of priority:

1. In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person; Or
2. In the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of the position referred to above after reasonable efforts by the employer to qualify the person.

If the employee cannot become qualified for either position described above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the person is to be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is able to perform, with full seniority. However, under certain circumstances, employers do not have the option of offering other jobs of equivalent seniority, status, and pay.

"Escalator" Position

The reemployment position with the highest priority in the reemployment schemes reflects the "escalator" principle that has been a key concept in federal veterans' reemployment legislation. 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 the person previously held. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status.

Qualification Efforts

Employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold for reasons other than a disability incurred or aggravated by military service.

Employers must provide refresher training, and any training necessary to update a returning employee's skills in situations where the employee is no longer qualified due to technological advances. Training will not be required if it is an undue hardship for the employer.

If reasonable efforts fail to qualify a person for the first and second reemployment positions in the above schemes, the person must be placed in a position of equivalent or nearest approximation of status and pay that the person is qualified to perform (the third reemployment position in the above schemes).

"Prompt" Reemployment

The law specifies that returning service members be "promptly reemployed." What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following 5 years on active duty might require giving notice to an incumbent employee who has occupied the service member's position and who might possibly have to vacate that position.

Disabilities Incurred or Aggravated While in Military Service

The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in Military Service:

  1. The employer must make reasonable efforts to accommodate a person's disability so that the person can perform the position that person would have held if the person had remained continuously employed.
  2. If, despite reasonable accommodation efforts, the person is not qualified for the position set forth above, due to his or her disability, the person must be employed in a position of equivalent seniority, status, and pay, so long as the employee is qualified to perform the duties of the position or could become qualified to perform them with reasonable efforts by the employer.
  3. If the person does not become qualified for the position in either position described above, the person must be employed in a position that, consistent with the circumstances of that person's case, most nearly approximates the position immediately above in terms of seniority, status, and pay.

The law covers all employers, regardless of size.

Rights of Reemployed Persons

Seniority Rights

Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.

A right or benefit is seniority-based if it is determined by or accrues with length of service. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is subject to a significant contingency.

Rights Not Based on Seniority

Departing service members must be treated as if they are on a leave of absence. Consequently, while they are away they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether paid or unpaid. If there is a variation among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. For example, a three-day bereavement leave is not comparable to a two-year period of active duty.

The returning employees shall be entitled not only to non-seniority rights and benefits available at the time they left for military service, but also those that became effective during their service.

Funding of Benefits

Service members may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence would be required to pay.

Pension/Retirement Plans

Pension plans, which are tied to seniority, are given separate, detailed treatment under the law. The law provides that:

  • A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan;
  • Military service must be considered service with an employer for vesting and benefit accrual purposes;
  • The employer is liable for funding any resulting obligation; and
  • The reemployed person is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions.

Vacation Pay

Service members must, at their request, be permitted to use any vacation that they had accrued before the beginning of their military service, instead of unpaid leave. However, service members cannot be forced to use vacation time for military service.

Health Benefits

The law provides for health plan continuation for persons who are absent from work to serve in the military and their dependents, even when their employers are not covered by COBRA. If a person's health plan coverage (in connection with the person's position of employment) would terminate because of an absence due to military service, the person may elect to continue the health plan coverage for up to eighteen months after the absence begins or for the period of service (plus the time allowed to apply for reemployment), whichever period is shorter. The person cannot be required to pay more than 102% of the full premium for the coverage. If the military service was for thirty or fewer days, the person cannot be required to pay more than the normal employee share of any premium.

Exclusions/Waiting Periods

Upon reemployment of the service member, a waiting period or exclusion cannot be imposed upon reinstatement of health plan coverage of any person whose coverage was terminated by reason of the military service (unless an exclusion or waiting period would have been imposed absent the military service). However, an exception applies to disabilities determined by the Secretary of Veterans' Affairs (VA) to be service-connected.

Protection from Discharge

Under USERRA, a reemployed employee may not be discharged without cause as follows:

  • For one year after the date of reemployment if the person's period of military service was for more than 180 days; or
  • For six months after the date of reemployment if the person's period of military service was for 31 to 180 days.

Persons who serve for thirty or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.

Protection from Discrimination and Retaliation

Discrimination

Employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including:

  • hiring;
  • promotion;
  • reemployment;
  • termination; and
  • benefits

Persons Protected

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.

Previously, only Reservists and National Guard members were protected from discrimination. Under USERRA, persons with past, current, or future obligations in all branches of the military or as intermittent employees in the National Disaster Medical System are also protected.

Standard/Burden of Proof

If an individual's past, present, or future connection with the service is a motivating factor in an employer's adverse employment action against that individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual's connection with the service.

USERRA clarifies that liability is possible when service connection is just one of an employer's reasons for the action. To avoid liability, the employer must prove that a reason other than service connection would have been sufficient to justify its action.

Retaliation

Employers are prohibited from retaliating against anyone:

  • who files a complaint under the law;
  • who testifies, assists or otherwise participates in an investigation or proceeding under the law;
  • who exercises any right provided under the law; or
  • whether or not the person has performed military service.

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