July 05

When Johnny Comes Marching Home: USERRA’s Protections and Obligations

by Thomas P. Quinlan

Our generation’s equivalent of Pearl Harbor is September 11, 2001. Since that horrific day, our nation’s communities have transitioned from time of peace to that of war. More than 430,000 National Guard and Reserve personnel from all military branches have been called to active duty for Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and other military and homeland security operations. Washington residents have suffered that impact.

Over 3,800 Washington National Guard personnel and reservists will soon be returning home from their respective theaters of operation with the expectation of returning to their civilian jobs and lives. Most have been deployed to active duty for over a year. The jobs of the reservists have either been vacant or performed by others for many months, and entire annual billing cycles. Transition back into the civilian work environment that has either grown or changed in the service member’s absence is not easy. Legal issues abound for both the reservists and their civilian employers.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, protects the job rights of Reservists and National Guard personnel. USERRA is a comprehensive revision of the federal law of veterans’ employment rights. It applies to virtually all employers and protects the rights of those who serve with the regular components, reserve components, and National Guard when in the federal service. State law adopted specific provisions of USERRA for Washington residents serving in the reserve components in USERRA and can be found at RCW 73.16.  

USERRA applies to all private employers, states, and governments, and all branches of the federal government. There is no exception for small employers. USERRA also applies to union hiring halls and similar entities to which employers have delegated employment-related responsibilities. If an employer can prove that re-employment is impossible, is unreasonable, or would impose an undue hardship on the employer, the employer need not re-employ the soldier, but the employer has the burden of proof.

To obtain USERRA’s protections, a soldier must pass each element of a five-part test, which includes:

1. Job. The soldier must have had a civilian job before the period of active duty in question. All jobs are covered, except jobs for a brief, non-recurrent period.

2. Advance Notice. The soldier must give advance notice to the employer before leaving for active duty. Notice can be oral or in writing, but obviously, written notice is easier to prove. The soldier’s commander or another appropriate officer may also give notice for the soldier. This “notice” is not a “request”; the employer cannot refuse permission for an absence.

3. Service Duration. All service members are entitled to five years of protected absence. Absences with any one employer are cumulative. The soldier can exclude certain absences from the five-year limit: most periodic and special Reserve and National Guard training, most service connected with war or national emergency, and certain other absences.

4. Character of Service. Soldiers who have been discharged from the service under less than honorable conditions are not protected. Service members with less-favorable discharges or who were dropped from the rolls because of AWOL or desertion are not protected by USERRA.

5. Timely Reapplication for Work. The soldier has a limited window to seek re-employment. The service member must return to work within a reasonable period of time after completion of service. The definition of “reasonable” depends on how long the soldier was gone. USERRA does not require that employment reapplications be in writing, but it is a good idea. Service members should make clear that they are not applicants for new employment, but rather had previous positions and left work to perform military service. For absences of 181 days or longer, the soldier must apply for work not later than 90 days after completing service. Service members returning from absences of 181 days or longer should make a written application, and make clear that they left a previous position for military service.

Service members are entitled to protections both while they are gone and when they return. These include:

Prompt Job Reinstatement. USERRA does not define “prompt,” but the clear intent of the law is re-employment within days, not weeks or months.

Job Seniority. Service members away from their civilian employment for 90 days or less are entitled to the exact job they left. If service was 91 days or more, the employer has the option of giving the returning soldier a position of like seniority, status, and pay. For all absences, USERRA incorporates the “escalator principle.” Returning employees are entitled to the same seniority they would have had if they had never left the employer for military service. If their pre-service peers were promoted or received raises in their absence, the returning soldier is entitled to the same raise or promotion. Conversely, if their pre-service peers took pay cuts, or if their jobs were eliminated, the returning soldier gets the same adverse treatment.

Status. Returning service members are entitled to the same status they would have attained if continuously employed. This includes job title, location, the opportunity to work during the day versus at night, and the opportunity to work in departments where there are better opportunities to earn commissions.

Training and Other Accommodations. An employer must make “reasonable efforts” to train a soldier on new equipment or techniques, refresh skills not used during service, and accommodate a service-connected disability, or to offer the soldier alternate employment.

Today, thousands of veterans are returning with serious service-connected disabilities. In this situation, the pre-service civilian employer is required to make “reasonable accommodations” to allow the disabled veteran to do the job despite the new disability. If the disability cannot be reasonably accommodated in the pre-service position, the pre-service employer must re-employ the returning disabled veteran in another position that provides like seniority, status, and pay, or the closest approximation thereof consistent with the returning disabled veteran’s circumstances. Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for disabled persons generally, including but not limited to disabled veterans. There is overlap between USERRA and the ADA. However, the ADA exempts employers with fewer than 15 employees. USERRA contains no such exception.

Special Protection Against Discharge Other Than for Cause. If a returning soldier is fired within a protected period, the employer has the burden of proving that the discharge was for cause, and not in retaliation for USERRA-protected service.

The protected period is one year for service members gone for 181 days or more, and 180 days for service members gone for 31 to 180 days. Service members gone for 30 days or less are protected only by the general anti-discrimination clause of USERRA, with no defined, protected period.

Immediate Reinstatement of Health Benefits. The employer or employer’s health insurer can impose no waiting period and no exclusion of pre-existing conditions, other than for VA-determined service-connected conditions.

Pension Benefits. For purposes of pension benefits, employers must count any period of service protected under USERRA as if it were service with the employer. This applies both to benefit eligibility (vesting) and to benefit computations. If the pension plan does not require employee contributions, the soldier gets credit as if she or he had never left work. If the plan uses employee contributions or deferrals, the returning soldier gets up to three times the period of absence (up to a maximum of five years) to make up any missed contributions.

Anti-Discrimination Provision. USERRA prohibits discrimination based on military service or obligations. If military service was a factor in an employer’s adverse action, the employer must prove that the adverse action would have been taken in the absence of the employee’s military service or status. USERRA also prohibits retaliatory action against witnesses and those who take action to enforce USERRA protections.

Other Benefits. As discussed above, USERRA requires an employer to treat an employee who serves in the armed forces like any other employee of similar seniority and status who is on furlough or leave of absence. Any other benefits available to other employees returning from a similar period of absence are due to returning service members.

Other Protections. USERRA imposes minimum protections and benefits as a safety net: it supersedes any state law, local law, or ordinance contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates any rights under USERRA or establishes additional prerequisites to the exercise of such rights. However, USERRA allows state laws, collective bargaining agreements, private contracts, etc., to provide extra protections and benefits. Returning service members are still entitled to any other benefits they enjoy from sources other than USERRA.

We are encountering situations where there has been a claimed waiver of rights. An employer may ask a departing soldier to sign a statement saying the soldier does not intend to return to the civilian job, or a more limited waiver of the soldier’s right to seniority and/or non-seniority benefits. Despite such a waiver, a soldier never gives up his or her rights to re-employment, nor the right to be treated as continuously employed for seniority purposes upon return to the job. A statement of non-return, however, does waive non-seniority benefits. To be effective, a waiver must be made with full knowledge of the rights the soldier is giving up, and the employer bears the burden of proof on this issue. Signing such a waiver will almost never be in a soldier’s best interest.

If a soldier thinks his USERRA rights have been violated, the soldier should start by contacting the National Committee for Employer Support of the Guard and Reserve (ESGR), 800-336-4590. Check the ESGR online at www.esgr.org. If an ESGR ombudsman cannot resolve the matter, the soldier may decide to seek legal remedies.

Remedies. District courts have broad remedial powers against a civilian employer: injunctive relief, money damages, attorney costs, expert witness fees, and other litigation expenses. If the court finds the employer’s failure to comply with USERRA was willful, the court may award liquidated damages for willful misconduct (in an amount equal to the actual damages) in addition to actual damages. For the purpose of remedies, states are treated as private employers. When the federal government is the employer, the Merit Systems Protection Board (MSPB) may award lost wages and benefits, attorney costs, expert witness fees, and other litigation expenses, but not liquidated damages for willful misconduct, and may order federal agencies to comply with USERRA.

Thomas P. Quinlan practices in Pierce County with the law firm of Miller, Quinlan & Auter, P.S. He is also a USAR JAG who routinely works on USERRA issues and is responsible for training deploying and returning service members on their rights under USERRA.