Reservists - Know Your Rights

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

by Burley T. Sullivan

The rights of both employees and their employers are spelled out in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). After the Gulf War conflict, Congress identified several shortcomings of the previous 58-year-old Veterans Re-employment Rights Law.

USERRA now provides for clearer wording and reduced government red tape to make it easier for reservists and their employers to communicate and resolve disputes. USERRA addresses a number of issues, ranging from notifying an employer of military duty to giving employees expanded re-employment rights.

Under the law, reservists, or an officer in their command, must give prior oral or written notice of their service obligation to an employer, regardless of the category of service. In rare cases, notice is not required. Exceptions include military necessity, such as classified recalls, or when it is determined that giving notice is "impossible or unreasonable."

USERRA expands the anti-discrimination protection for reservists in hiring, retention and advancement on the basis of their military obligation. Employers must make reasonable efforts to retrain or upgrade skills to qualify workers for re-employment. The law expands health care and employee benefit pension plan coverage. It also improves protection for disabled veterans and strengthens enforcement mechanisms for service members who believe their re-employment rights have been violated.

These and other provisions of the law are available at the following DoD link: http://www.esgr.org. Reservists and employers can also get help by calling the National Committee for Employer Support of the Guard and Reserve (NCSEGR) toll free at 1-800-336-4590.

Soldiers' and Sailors' Civil Relief Act

It is important that reservists know that they will have a job when they return home, but credit problems can also adversely affect their duty performance and create undue hardships while they are serving their country. For example, buying a new sports car or other big-ticket item may seem like a good idea as long as the money keeps coming in. However, making payments may become impossible for reservists if they take a cut in pay when called to active duty.

For help, reservists can turn to the Soldiers' and Sailors' Civil Relief Act of 1940, which provides a wide range of protections. The SSCRA is intended to postpone or suspend certain civil obligations to enable service members to devote their full attention to duty. The act does not apply to criminal matters.

The protections generally begin when a person starts active duty and end within 30 to 90 days after the date of discharge from active duty. Besides installment contracts, the act covers such issues as rent, rates of interest, stay of proceedings, default judgments, insurance, state taxes and adverse credit actions. Some good information about these subjects is available on the Air Reserve Personnel Center home page at http://www.arpc.org/arpc.htm under legal assistance, in the Judge Advocate General section.

USERRA:
Uniformed Services Employment and Re-Employment Rights Act

To ensure that reservists will have a job when they return home, Congress passed the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), a byproduct of the Gulf War.

Additionally, a complex body of federal and state laws governs release of employees from work in order to perform military service. Applying these laws in unique employment situations is often confusing. The National Committee for Employer Support of the Guard and The Reserve (NCESGR) provides information and mediation service from its Virginia office, accessible nationwide through a toll-free telephone number: 1-800-336-4590.

Questions about the law, problems with individual supervisors and inquiries about the propriety of specific personnel practices can all be addressed by the committee's ombudsmen. The service is available to employers as well as to members of the National Guard and Reserve.

At the National level, the program is conducted by a specially trained team of experts in the field of reemployment rights for members of the National Guard and Reserve. At state level, trained volunteers assist local employers and employees in understanding and applying the law. For more information click here: http://www.esgr.org.

FOR THE COMPLETE INFORMATION, DOWNLOAD THE USERRA REDPLOYMENT GUIDE

Q & A's From Employees

1. Is there a law governing reemployment rights after military training or service?

Yes. The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) is a comprehensive revision of the Veterans' Reemployment Rights law. USERRA is contained in Title 38, United States Code at chapter 43.

2. Am I eligible for reemployment rights under USERRRA if I perform military service?

Yes, provided you meet five eligibility criteria. You must:

• hold a civilian job (Note: jobs that are held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period do not qualify for protection.
• give written or verbal notice to your civilian employer that you will be leaving the job for military service, except when precluded by military necessity.
• be released from service under honorable conditions.
• not exceed the 5-year cumulative limit on periods of service.
• report back to your civilian job or submit an application for reemployment in a timely manner.

3. Do I have reemployment rights following voluntary military service? State callups?

USERRA applies to voluntary and involuntary military service, in peacetime and wartime. However, USERRA does not apply to state callups of the National Guard. Protection for such duty must be provided by the laws of the state involved.

4. When is prior notice to my civilian employer required? How is such notice to be given?

The person who is performing any category of training or service must give advance written or verbal notice to the employer.

Notice is not required if precluded by military necessity or, if such notice is otherwise impossible or unreasonable. A determination of military necessity shall be made as prescribed by the Department of Defense regulations. Situations where notice is not required will be rare.

The law does not specify a measure for advance notice but you should give your employer as much advance notice as possible, even for orders pending availability of funding.

5. How is the 5-year limit computed?

Service that you have performed, with some exceptions, counts toward the cumulative 5-year limit of service you can perform while retaining rights under USERRA. When you start a new job with a new employer, you receive a fresh 5-year entitlement.

USERRA's cumulative 5-year limit does not include service grouped into these three broad categories:

Unable, through no fault of your own, to obtain orders releasing you from service or service in excess of five years to fulfill an initial period of obligated service.
Required drills, annual training and other training duty certified by the military to be necessary for professional development or skill training/retraining.
Service performed during time of war or national emergency or for other critical missions, contingencies, or military requirements. Involuntary and voluntary service of this type is exempt from the 5-year limit.

6. I am a Federal employee, and I receive 15 days of paid military leave each year. My agency's personnel office has informed me that I have no right to time off from work for military training or service beyond this 15 days. Is that right?

No. As a Federal employee, you have the right to 15 days of paid military leave each fiscal year, under Title 5 U.S. Code. When you have exhausted your right to paid leave under Title 5, you still have the right to use your accrued civilian leave or unpaid leave under USERRA, because USERRA applies to the Federal Government as well as all other civilian employers.

If you wish to continue your civilian pay uninterrupted and you have annual leave on the books, you can use that annual leave for you military service. USERRA gives you the explicit right to do this. If your employer is a state or local government that grants paid military leave, the result would be the same.

7. Can I be required to use my earned vacation while performing military service?

No. You must, at your request, be permitted to use any vacation that had accrued before the beginning of your military service instead of unpaid leave. However, it continues to be the law that service members cannot be forced to use vacation, annual or similar leave for military service.

8. After military service, how long do I have to report back to work or apply for reemployment?

For periods of service of 1 to 30 consecutive days, you must report back to work for the first full, regularly scheduled work day following the service, safe transportation home, plus an 8-hour rest period. If reporting back within this deadline is "impossible or unreasonable" through no fault of your own, you must report back as soon as possible after the rest period.

For service of 31-180 days, you must submit either a written or verbal application for reemployment with the employer no later than 14 days after completion of service. If submitting the application within 14 days is impossible or unreasonable through no fault of your own, you must submit the application as soon as possible thereafter. If the 14th day falls on a day when offices are not open, the time extends to the next business day.

For service of over 181 days, you must submit an application for reemployment not later than 90 days after completion of service. These deadlines to report to work or apply for reemployment can be extended up to two years to accommodate a period of hospitalization or convalescence from a service-connected injury or illness.

9. Does USERRA give me the right to benefits from my civilian employer during my military service?

Yes. USERRA gives you the right to elect continued health insurance coverage during periods of military service. For periods of service up to 30 days, the employer can require you to pay only the employee share, if any, of the cost of such coverage. For longer tours, the employer is permitted to charge you up to 102 percent of the entire premium.

If you elect coverage, your right to that coverage ends on the day after the deadline for you to apply for reemployment or 18 months after your absence from your civilian job began, whichever comes first. USERRA gives you and your previously covered dependents the right to immediate reinstatement of your civilian health insurance coverage upon return to your civilian job. There must be no waiting period and no exclusion of preexisting conditions (other than for those conditions determined to be service-connected). This right is not contingent on your having elected to continue that coverage during your service.

To the extent that your employer offers other non-seniority benefits (e.g., holiday pay or life insurance coverage) to employees on furlough or leave of absence, the employer is required to provide those same benefits to you, during your service in the uniformed services. If the employer's treatment of persons on leaves of absence varies according to the kind of leave (jury duty, educational, etc.), the comparison should be made with the employer's most generous form of leave.

10. What am I entitled to upon my application for reemployment?

You have four basic entitlements:

Prompt reinstatement. (generally a matter of days, not weeks, but dependent upon your length of absence).
Accrued seniority, as if you had been continuously employed. This applies to rights and benefits determined by seniority as well as status, rate of pay, pension vesting, and credit for the period for pension benefit computations.
Training or retraining and other accommodations. This would be particularly applicable in case of a long period of absence or service-connected disability.
Special protection against discharge, except for cause. The period of this protection is 180 days following periods of service of 31-180 day. It is one year for service of 181 days or more.

11. When I return from military duty will I automatically get my old job back?

No. After military service of 1-90 days, you are entitled to the same job or a promoted position if this would have been attained with reasonable certainty had you not been absent. If unable to become qualified for a new position after reasonable efforts by the employer, you are entitled to the job you left.

After service for 91 days or longer, you are entitled to the same position, a position of like seniority, status, and pay, or possibly a promoted position. The reemployment position with the highest priority reflects the "escalator" principle, requiring that each returning service member step back onto the seniority escalator at the point you would have occupied if you had remained continuously employed. Therefore, if the company has endured a loss affecting the status of employees in general, 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.

12. What if I'm not qualified for my reemployment position? What if I'm injured or disabled?

If you have been gone from your civilian job for months or years, your job skills may have been dulled by a long period without use. You must be qualified to do the job in order to have reemployment rights, but USERRA requires the employer to make "reasonable efforts" to qualify you.

"Reasonable efforts" means actions, including training, that don't cause undue hardship to the employer. If you can't become qualified after reasonable efforts by your employer, and you are not disabled, you must be employed in any other position of lesser status and pay, the duties of which you are qualified to perform, with full seniority.

USERRA also requires the employer to make "reasonable efforts" to accommodate a service-connected disability. If upon your return from military service you are suffering from a service-connected disability that cannot be accommodated by reasonable employer efforts, the employer is to reemploy you in some other position that you are qualified to perform and which is the "nearest approximation" of the position to which you are otherwise entitled, in terms of seniority, status, and pay.

13. Does the new law protect me from discrimination by my employer or a prospective employer?

Yes. Sections 4311(a) and (c) of USERRA state:

"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 initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."

"An employer may not discriminate in employment against or take any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under this chapter, has testified or otherwise participated in an investigation under this chapter, or has exercised a right provided for in this chapter."

These two provisions provide a very broad protection against discrimination, much broader than the VRR law provided. For the first time, reprisals against any person, without regard to military connection, who testifies or otherwise assists in an investigation or other proceeding under USERRA is prohibited.

14. Who has the burden of proof in these cases?

The employer or prospective employer. USERRA provides that a denial of employment or an adverse action taken against you by an employer will be unlawful if your service connection was a motivating factor (not necessarily the only factor) in the denial or adverse action "unless the employer can prove that the action would have been taken in the absence of such membership, application for membership or obligation."

15. Where do I go for information or assistance?

National Guard and Reserve members with questions or concerns about their civilian job rights should first consult with their command.

For assistance, contact the National Committee for Employer Support of the Guard and Reserve. You can contact a NCESGR ombudsman toll-free at (800) 336-4590.

Ombudsmen provide information and informal mediation services concerning civilian job rights of National Guard and Reserve members. If you believe your employer has violated your rights under USERRA and you wish to file a formal complaint, you should contact the Veterans' Employment and Training Service of the United States Department of Labor.

FOR THE COMPLETE INFORMATION, DOWNLOAD THE USERRA REDPLOYMENT GUIDE

Q & A's From Employers

The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), enacted October 1994 and significantly updated October 1996, provides protection and rights of reinstatement to employees who participate in the National Guard and Reserve.

The National Committee for Employer Support of the Guard and Reserve (NCESGR), an agency within the Office of the Assistant Secretary of Defense for Reserve Affairs, operates programs directed toward U.S. employers, employees, and communities to ensure understanding of the role of Reserve component members. NCESGR encourages development of employer policies and practices to facilitate employee participation in the Reserve components through a network of volunteers in 54 local Employer Support of the Guard and Reserve (ESGR) Committees.

The ESGR Ombudsman program provides informal mediation services in conjunction with the Veterans' Employment and Training Service (VETS), U.S. Department of Labor. Volunteer members are trained by NCESGR and VETS to provide assistance to employers and employees in the resolution of employment conflicts that can result from military membership, training, or other service requirements protected under USERRA.

To reach your local ESGR Committee for information or assistance, contact:
--- the NCESGR website at www.esgr.org
--- call NCESGR toll-free, at 1-800-336-4590
--- call your local National Guard or Reserve unit

The information provided herein should not be considered legal authority, but is provided as general information about the USERRA.

1. Is an employee protected from unlawful discrimination by an employer based on military affiliation?

Yes. USERRA provides protections for initial hiring and adverse employment actions by an employer if the action relates even in part to the employee's military service. This protection also extends to potential witnesses of a discriminatory action on the part of the employer.

2. Can an employer refuse to allow an employee to attend scheduled drills or annual training?

No. Employees must be excused from work to attend inactive duty training (drill) or annual training and the employer must treat the employee as if he or she has not been absent.

3. Is there a limit to the amount of military leave an employer must permit?

Yes. Although there is no longer any differentiation between voluntary and involuntary military duty, there is a 5-year cumulative service limit on the amount of voluntary military leave an employee can use and still retain reemployment rights.

4. What is not included in the 5-year cumulative total?

The 5-year total does not include: inactive duty training (drills), annual training, involuntary recall to active duty, or additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining.

5. Is prior notice to the employer required for leave of absence for military duty?

Yes. Unless precluded by military necessity, advance notice must be provided either orally or in writing. The context for what constitutes timeliness of notification was not spelled out in detail by Congress under USERRA. However, employees who participate in the National Guard or Reserve should provide their employers as much advance notice as possible. Failure to provide notice could result in a denial of the protection of USERRA.

6. What are valid military orders?

All written or verbal orders are considered valid when issued by competent military authority. A military member in receipt of official orders is obligated by federal statute to execute them. The recurring requirement to perform inactive duty training (drill) is an example of when written orders may not be formally issued.

7. When may an employer require an employee to provide official, written military orders?

After periods of military leave of absence for more than 30 days, the employer has the right to request such documentation, which can be used to establish the employee's basic 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.

8. What if the employee cannot provide satisfactory documentation for military service in excess of 30 days?

The employer must promptly reinstate the employee pending its availability. The employer may contact the military unit if necessary.

9. Can an employer require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence?

No. As stated earlier, an employer may not require documentation for notification prior to military duty. Further, an employer does not have a right of refusal for military leave of absence, so long as the employee has not exceeded the 5 years of cumulative service provided under USERRA.

10. Can an employee be required to find someone to cover his or her work period when military duty interrupts the work schedule?

No, an employee is responsible for notification but not for altering the work schedule or finding a replacement.

11. Can an employer require an employee to reschedule drills, annual training, or any other military duty obligation?

No. 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 military commander of the employee's military unit to determine if the duty could be rescheduled or performed by another member. 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.

12. Is an employer required to pay an employee who is on military leave of absence?

No. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.

13. Are there time limits for an employee to return to work after completion of military duty?

Yes. There are three formats for reinstatement (application for reemployment), dependent on the duration of military service. Please refer to question 15 for a detailed breakdown of these formats. An employer should reinstate an employee within a matter of days of application, if not on the same day as the application is made.

14. After completion of weekend drill, what is the time limit for an employee to return to work?

Either the the beginning of the next regularly scheduled work day or during that portion of the next regularly scheduled shift that would fall eight hours after the end of drill and a reasonable amount of time to commute home. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. However, the employer can require the employee to report for the 6 a.m. shift, or scheduled work period, the next morning (after reasonable commute from military duty to home followed by 8-hours). Included in the 8 hour period is time for rest and the commute to to work.

15. What is the time limit for an employee to return to work after Annual Training or other types of extended military leave of absence?

Time limits for returning to work depend on the duration of the orders. The rules are: Service of 1 to 30 days: the beginning of the first regularly scheduled work day or 8 hours after the end of the military duty, plus reasonable commuting time from the military duty station to home. Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty. Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of military duty.

16. What if the employee has an accident, is delayed by lack of military transportation, or is otherwise unable to report back in a timely manner?

The employee must report back to work as soon as possible. If the reason for the employee's delay is not related to military duties, the employee is subject to the personnel policies and practices the employer would normally apply to employees with unexcused absences.

17. What if an employee is injured or incurs a disability during military duty?

The deadline for reinstatement may be extended for up to 2 years for persons who are convalescing due to a disability incurred or aggravated during military service, and employers must make reasonable accommodations for the impairment.

18. What job position is an employee returned to after military leave of absence?

Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service. The rules are: Service of 1 to 90 days:(a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or (b), if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service. Service of 91 or more days: (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position. Note: The reemployment position with the highest priority reflects the escalator principle, which requires that a returning service member steps back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.

USERRA specifies that returning employees must be promptly reemployed. What is prompt will depend on individual circumstances. Reinstatement after 3 years on active duty might require two weeks to allow giving notice to an incumbent employee who might have to vacate the position.

FOR THE COMPLETE INFORMATION, DOWNLOAD  USERRA REDPLOYMENT GUIDE