The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers of all types and sizes from discriminating against applicants and employees based on uniformed service, which includes service in the Army, Navy, Marine Corps, Air Force, Coast Guard, the Guard and Reserve components of military services, and the Commissioned Corps of the Public Health Service. The law grants strong reemployment rights and protections for service members returning to their civilian jobs.
Both voluntary and involuntary service are protected. Therefore, employers are must recognize and handle all uniformed service absences in the same manner, regardless of how an employee ended up performing the service. It is irrelevant whether an employee “volunteered” or “signed-up, or instead was “called-up,” “tasked,” “ordered” or otherwise “involuntarily deployed.”
Employees do not need to obtain permission or approval from their employers before departing to perform qualifying uniformed service. It is irrelevant whether an employer finds the employee’s absence to be unreasonable in terms of duration, frequency or timing. Although service members must provide “advance notice” unless military necessity prevents
such notice or providing notice is otherwise impossible or unreasonable. USERRA does not dictate how far in advance notice must be given, however, regulations strongly recommend that the Dept. of Defense provide advance notice to civilian employers at least 30 days prior to departure for uniformed service when it is feasible to do so. Advance notice “may be informal” and can be either verbal or written. Employee handbooks and leave policies cannot impose more onerous obligations than USERRA does with respect to advance notice of an absence or its particular format.
Employers may not require written orders or any other official documentation concerning the employee’s uniformed service prior to the employee’s departure from work. The only time an employer is permitted to require documentation supporting the employee’s uniformed service is where an employee’s “period of service exceeded 30 days” and the employee seeks reemployment with the employer. Thus, employees are not required to notify their employers at the time they depart for military service whether they intend to seek reemployment upon their return from service. In fact, an employee can tell his or her employer that he or she does not want to seek reemployment upon return and then have a change in heart. Even then, the employee does not forfeit the right to reemployment.
Where an employee is absent for 31 days or more and seeks reemployment upon return, an employer is permitted to request official documentation to establish: (1) that the employee’s reemployment application is timely under the law (different time periods apply depending on the duration of the absence); (2) that the employee has not exceeded the five-year cumulative limit on covered service (note: neither the regularly-scheduled Guard and Reserve “drill” each month nor the typical two-week “annual tours” count toward the five-year cap on covered service); and (3) the employee’s separation or dismissal from uniformed service was not disqualifying (e.g., it was not dishonorable or under other than honorable conditions.
Upon reemployment of an employee, when qualified uniformed service is completed, the employer must place the employee in the same position or as nearest to the original employment position as possible if the same position does not exist. He or she may also be entitled to an “escalator position” – “a job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.” The employee must be reemployed in a position that reflects “with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service.” This principle applies to both automatic/non-discretionary bonuses, promotions and benefits as well as those involving discretionary or performance-based promotions.
Where it is difficult to measure an employee’s performance for pay or promotion purposes due to the duration or frequency of absence(s), employers may consider their employees’ military performance evaluations, ratings and reviews. USERRA is construed very broadly in favor of the employee/military member, and the escalator principle will always apply when ascertaining where an employee should be in the company’s bonus plans or promotion schedule. A best employment practice would require asking employees who have been performing service if they would like to submit their service evaluations, ratings and reviews for the employer to consider.
If you have employees that provide military service, it is essential that you discuss with your HR and legal counsel how to plan to continue business operations in the event they are called to duty.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
