United States: USERRA Obligations: Navigating Uncharted Legal Waters

[2004] All rights reserved including the right of reproduction in whole or in part in any form.

In the past year our country has experienced the largest military call-up in over a decade. As military deployments end and service members return home, they and employers alike are confronted with questions that accompany these returns.

Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA), Chapter 43 of Title 38, U. S. Code, in October 1994. USERRA prohibits employment discrimination based on military service, articulates the rights, benefits and protections afforded to service members while on military leave and upon return from military leave, and governs the reemployment of service members upon completion of military service. USERRA also provides its own enforcement procedures to ensure compliance.

This paper offers an overview of USERRA with helpful tables to assist you in understanding USERRA. It should be noted that some states have enacted laws providing more generous treatment to service members than are mandated under USERRA.

Since the Veteran’s Reemployment Rights Act (VRR) was replaced by USERRA few courts have decided cases using USERRA. USERRA case decisions seem to be commonly relying on VRR rulings and legislative intent. There are, however, some cases that help navigate USERRA’s uncharted legal waters. Lapine v. Wellesley, 304 F.3d 90 (1^st Cir. 2002) offers an analysis of legislative intent and Rogers v. City of San Antonio, Texas, 211 F.Supp.2d 829 (W.D. Tex. 2002) reviews VRR case history and current application of USERRA.

Using an abundance of caution, the court in Rogers, supra on March 24, 2003 issued an Order Granting Motion for Certification Under 28 U.S.C. § 1292(b), 2003 WL 1571550 (W.D. Tex.) allowing the parties to appeal two specific items to the Fifth Circuit Court of Appeals, before proceeding further. On May 2, 2003, the Petition for Permission to Appeal was filed, and then granted on May 27, 2003. All briefs have been recently filed and this case is currently under consideration by the court. As of the printing of this paper the application of USERRA by the courts seems to remain unclear.

The terms of USERRA are broad, applying to anyone in the uniformed services whether voluntary or involuntary who was employed in any non-temporary position even for only one day prior to being called up.

"Service" in the uniformed services is defined as 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 for training, full-time National Guard duty, absence from work for an examination to determine an individual’s fitness for any of the named types of duty, funeral honors duty performed by National Guard or reserve members, duty performed by intermittent disaster response personnel for the Public Health Service, and approved training to prepare for such service.

"Uniformed services" consist of the United States Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or national emergency. Part time, full time and probationary employees are protected under USERRA.

USERRA applies to all public and private employers, and their successors, regardless of size or location in the world.

A service member is entitled to rights furnished by USERRA provided that the service member meets the criteria outlined in Table 1.

A service member is entitled to rights furnished by USERRA provided that the service member meets the following criteria:

The service member or an appropriate military officer must provide advance written or verbal notice to the employer of all military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. The law requires "advance" notice, but does not specifically address how far in advance notice must be given.

The cumulative leave of absence from employment for one employer that causes a service member to be absent from a position of employment may not exceed five years. Normally leaves for service obligations will be cumulatively counted in the computation of the five-year period, however there are eight categories of exceptions that permit the five-year period to be extended. Those categories are listed in Table 2.

There are eight categories of exceptions that permit the five-year period to be extended. Those categories include:

A service member returning from service must timely notify the employer of their intent to return to work. A service member’s failure to submit an application for reemployment within the time periods set forth by USERRA, will subject the service member to the employer’s established policy governing unexcused absences, which may be deemed by the employer, without discrimination, as a voluntary termination of employment by the service member with the employer. Timely application for reemployment is based upon the service members’ length of military service (See Table 3).

It should be noted there is no specific form for the "application", however the service member should notify their employer in writing that the service member is ready to return to work with the employer.

Deadlines for application for reemployment may be extended up to two years for a service member who is hospitalized or convalescing from an injury that occurred or was aggravated during military service.

A returning service member with less than 91 days military service is entitled to return to the position in which the service member was employed or would have been employed if their employment had not been interrupted.

A returning service member whose military service was more than 90 days is entitled to return to the position in which the service member was employed or would have been employed, or a position of like seniority, status, and pay.

Reemployed service members are entitled to the seniority and all rights and benefits based on seniority they would have received with reasonable certainty had the service member remained continuously employed. A right or benefit is considered seniority based if it is determined by or accrues with length of service.

Service members called up must be treated as if they were on a leave of absence. While absent the service member must be allowed to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether such leave is paid or unpaid. If the employer has several types of leaves, the service member is entitled to the most favorable treatment among all of the employers’ comparable leaves.

USERRA provides that reemployment is not required under certain circumstances. Those exceptions are stated in Table 4.

Reemployment is not required under the following limited exceptions:

Any service member reemployed may only be terminated for cause during a specific period of time after reemployment. This period of protection is based upon the length of military service (see Table 5).

Returning service members cannot be terminated, except for cause, for a specified period of time, even if they were at-will employees before they were called up for military service.

USERRA provides a three (3)-part reemployment procedure for service members with disabilities incurred or aggravated while in military service (See Table 6).

USERRA provides a three-part reemployment procedure for service members with disabilities incurred or aggravated while in military service. The reemployment procedures are:

USERRA prohibits an employer from discriminating in employment or taking any adverse employment action against a service member because of their past, present or future military obligations. This ban is broad, extending to most areas of employment including hiring, promotion, reemployment, termination and benefits. See also: Yates v. Merit Systems Protection Board, 145 F. 3d 1480 at 1484 (Fed.Cir.1998).

Service members called up are automatically covered by a governmental healthcare program commonly known as Tricare or CHAMPUS, if the period of service is at least 31 days. However, many service members may wish to continue their employer provided healthcare benefits, especially for their dependents.

USERRA provides that a service member on military leave has the right to elect continuation of health benefits coverage under COBRA-like terms if the service member was a participant in the employers health benefits plan immediately before the service members call up. This requirement, unlike COBRA, applies to all health benefits plans, not just group plans. Unlike COBRA, USERRA applies to all employers regardless of size.

USERRA provides that a "pension plan" must comply with the requirements of reemployment law and would be any plan providing retirement income to employees to termination of employment or later. Pension plans tied to seniority are given separate, detailed treatment under USERRA (See Table 7).

Pension plans that are tied to seniority are given separate, detailed treatment under USERRA. For these type plans USERRA provides:

Repayment of service member’s contributions can be made over three times the period of military service but no longer than five years. Recently the issue of pension and retirement benefit plans was addressed in Wrigglesworth v. Braumbaugh, 121 F.Supp.2d 1126 (W.D. Michigan 2000); Wrigglesworth v. Braumbaugh, 129 F. Supp.2d 1106 (W.D. Michigan 2001).

Defined benefit plans, defined contribution plans and profit sharing plans that are retirement plans are covered by USERRA.

Under USERRA, service members called up are entitled to all non-seniority based benefits that are available to other employees who take nonmilitary leaves of absence. Service members continue to accrue vacation or sick time and remain eligible for such benefits as company bonuses and life insurance while on military leave, only if employees on nonmilitary leave are entitled. Employers must allow service members at their request to use any vacation the service member had accrued before the beginning of the service members military leave instead of unpaid leave. However, employers may not force service members to use vacation time while on military service. Vacation was recently discussed in Rogers, supra.

A great place to start is with the Ombudsmen Services Program, which provides information, counseling and informal mediation of issues relating to compliance with USERRA. You may contact the program by visiting their website at www.esgr.org/employers/thelaw.asp.

On a more formal level, the Department of Labor is the enforcement authority for USERRA. Veterans’ Employment and Training Service (VETS) of the Department of Labor assist service members with issues involving USERRA. VETS have a USERRA adviser on its web site, www.dol.gov/vets, to answer the most often asked questions. The law gives VETS right of access to examine and duplicate employer documents and interview persons with information it considers relevant to an investigation. The law authorizes VETS to subpoena attendance and testimony of witnesses and production of documents relating to any matter under investigation.

If a complaint is not successfully resolved by VETS the person may request their complaint be submitted to the Attorney General for possible court action. If the complainant were a federal employee the complaint would be submitted to the Office of Special Counsel, www.osc.gov/userra.htm.

Service members continue to have the option to privately file court actions. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General. Damages can include double award of back pay or lost benefits in cases where violations are found to be willful. The law, at the court’s discretion, allows for awarding attorney fees, expert witness fees and other litigation expenses to successful plaintiffs who retain private counsel. Further the law prohibits charging court fees or costs against anyone who brings suit. Only persons claiming rights under the law may bring lawsuits.

The court in Spratt v. Guardian Automotive Products, Inc., 997 F. Supp 1138, (N.D. Indiana 1998), held that USERRA, which now provides for liquidated damages, also provides the right to a jury trial under the Seventh Amendment.

Several good resources exist. For example, the best continually updated, USERRA information website that I have found is www.roa.org. Once on the site, click on "Legislative Affairs" then on "Law Review Archive" at the bottom of the drop-down menu.

Other sources include: 1) Military Reservists Economic Injury Disaster Loan www.sba.gov/reservists/disloan.html; 2) Soldier’s and Sailor’s Civil Relief Act http://www.jagcnet.army.mil/JAGCNETInternet/Homepages; and 3) www.ngaus.org.

It should be noted that federal and state laws regarding military leave are very detailed, containing several exceptions and caveats that cannot be fully addressed in this overview. Employers and employee (service member) are advised to seek guidance from legal counsel regarding the handling of benefits during military leave and the reemployment rights of the employee (service member) returning from such leave. Employers should also seek the advice of legal counsel before terminating an employee (service member) who has, at any time during employment, taken military leave.

This overview is not intended nor should it be considered legal advice. Each military leave matter is unique and specific. Every employer and employee (service member) is encouraged to seek guidance from legal counsel concerning your specific military leave matter.

[2004] All rights reserved including the right of reproduction in whole or in part in any form.