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Employer Alert/Military Leave Everything You Never Knew You Needed to Know About the The Uniformed Services Employment and Reemployment Rights Act ("USERRA") provides significant protections and rights to members of the uniformed services in relation to private sector employment. The following questions and answers are designed to help employers understand their USERRA obligations. Which employers are covered by USERRA? USERRA applies to all employers regardless of size or industry. The federal government, state governments, and political subdivisions also are subject to USERRA. Who is entitled to USERRA protections and rights? USERRA applies to any individual performing "service" for a "uniformed service" of the United States. The rights and protections of USERRA are available regardless of how long the individual has been employed or how many hours he or she worked before commencing a military leave of absence. The definition of "service" in the uniformed services includes:
"Uniformed services" includes the Armed Forces (Army, Navy, Air Force, Marines, Coast Guard) and Reserves, Army National Guard and Air National Guard, commissioned corps of the Public Health Service, and any category designated by the President in time of war or national emergency. To what aspects of employment does USERRA apply? USERRA applies at all stages of employment, including the hiring stage. Employers cannot deny initial employment, reemployment, promotions or any benefit of employment or terminate employment on the grounds that the person is a member of, performs services for, or has applied for membership in or to provide services for a uniformed service. USERRA does not prohibit employers from asking applicants and employees about military service. Indeed, many employers consider military service to be a positive attribute in job candidates. How much notice must an employee provide before taking leave for military service? Advance notice of the need for military leave is generally required to qualify for USERRA protections and rights. Notice can be oral or written and can come from the employee or an appropriate officer of the relevant uniformed service. As USERRA does not provide how much notice is required, employers must comply with USERRA if notice was given at any time prior to the commencement of the absence. No notice is required if it is precluded by military necessity or if it would be impossible or unreasonable under the circumstances. How much time off are employees permitted under USERRA? Employees generally are permitted to take a cumulative total of five (5) years of military leave from any given employer. The exceptions to the five (5) year minimum, however, are significant:
Must an employer pay an employee during military leave? Employers are not required to pay employees while on a military leave. Can employees be required to use paid leave during military leave? Employees cannot be required to use accrued paid leave during military leave. Can employees choose to use paid leave during military leave? Employees must be permitted to use accrued vacation, annual or similar leave with pay during a military leave of absence. Are employees entitled to continued health insurance during military service? Employees are eligible to receive continued health benefits during a leave for active military service. However, some limitations will apply. Employees are eligible for up to eighteen months of continued health coverage for themselves, and their dependents. Employers must continue the health coverage that an employee had prior to a military leave for thirty-one (31) days at a cost of no more than what the employee would have paid as an active employee. After the initial 31-day period, employees are may be charged up to 102% of the employer's cost for the coverage. The eighteen months of coverage runs concurrently with the employee's eligibility for COBRA coverage. Employers will typically want to coordinate these two rights to address issues of potential adverse selection. Are employees eligible to continue their participation in flexible spending accounts during military leave? USERRA does not explicitly address flexible spending accounts. There are provisions under COBRA that may still apply to employees on military leave to, for example, continue their participation in the flexible spending arrangement through the end of the current year. What retirement plan rights do employees have in relation to military service? The rights that an employee has in a retirement plan will depend on the type of plan maintained by the employer. As a general rule, employees are protected from incurring a "break-in-service" under the employer's plan when returning from a military leave. The time spent on military leave also can be counted toward any vesting service required under the plan. Certain pension plans must also give benefit credit for an employee who returns from a military leave, and the employer is responsible for the corresponding funding obligation for that benefit. In calculating the amount of benefit that is due to the returning employee, the plan should use the amount of compensation that the employee would have received or the hours that the employee would have worked if not on the leave. Plans that would have allowed the employee to make a contribution from wages can be required to take "make-up" contributions from the employee after returning from the military leave. The employee would then be entitled to any employer matching contributions that might be due on the employee contributions. Do employees on military leave accrue vacation benefits? Employees on military leave do not accrue vacation benefits while on leave, unless the employer permits employees on other leave of absence status to accrue vacation benefits. If the amount of vacation that is allowed depends on length of service, time on military service must be counted to the accrual during or following military service. Does time away from work due to military service count towards seniority? Time on military leave counts as time worked for seniority purposes. Seniority purposes include any benefits of employment which accrue with, or are determined by, longevity in employment. If length of service or hours worked are a requirement for a statutory or employer-provided benefit or right, the employee must be credited with the length of service and hours of worked the employee would have had but for a military leave of absence. Does time away from work due to military service count towards tenure and hours requirements under the Family and Medical Leave Act? The Family and Medical Leave Act ("FMLA") provides unpaid leaves of absence for eligible employees for certain familial and medical needs. To be eligible, an employee must have been employed by the employer for at least 12 months and must have worked at least 1,250 hours in the previous 12 months. Military service must be counted towards the 12 month employment requirement. Likewise, employees must be credited with the number of hours they would have worked if they had not been on military leave for purposes of calculating whether they have worked the required 1,250 hours in the 12 months prior to commencement of an FMLA leave. What reinstatement rights do employees who have performed military service have? Employees must be placed in the position which they would have held but for the military leave whenever possible, except that employees who served for 91 days or more can be placed in a position of equivalent seniority, status and pay to the position they would have held but for the leave. Thus, employees may be entitled to advancements where positions change primarily as a function of time, for instance moving from a "staff" position to a "senior" position or moving from a Class I to a Class II. Employees also must be allowed to take promotional tests that were missed in their absence. Depending on the circumstances, it may be necessary to allow employees to bid on positions that were filled in their absence. The employer also must make reasonable efforts to help returning employees qualify for the advanced positions, such as providing required training. The Department of Labor has taken the position that returning military personnel have the right to bump other personnel from positions the military personnel was reasonably certain to have attained but for the leave of absence. If it is impossible to place the employee in the position which he or she would have held but for the absence or, if applicable, an equivalent position, the employee must be placed in the job which he or she actually held before the leave, except that an employee who served 91 days or more can be given a position of equivalent seniority, status and pay to the position held before the leave. Employers must make reasonable efforts to help returning employees qualify for their prior positions. The fact that the position has been filled in the employee's absence does not affect reinstatement rights. If an employee cannot qualify for the position previously held because the qualifications for the position have changed, the employee must be placed in the position that most nearly approximates the position the person would have held but for the absence or, if not possible, the nearest approximation of the position the person actually held. An employee granted a new position in this manner is entitled to full seniority rights. How do employees exercise their reinstatement rights? Employees who have been on military leave for purposes of a fitness for duty examination or for service of less than 31 days, must report to work for the first regularly scheduled work period that occurs eight (8) hours after completion of the military service. Employees whose service was more than 30 days but less than 181 days must submit an application for reemployment within 14 days following completion of the military service. If it is impossible or unreasonable for an employee who served for less than 181 days to report to work or apply for reemployment at the required time through no fault of the employee, the employee must report to work or make an application for reemployment as soon as possible. Employees whose service was more than 180 days must submit an application for reemployment within 90 days following completion of the military service. These deadlines can be extended up to two (2) years for employees who are hospitalized or convalescing because of injury or illness that occurred or was aggravated during the military service. What job reinstatement rights does an employee disabled during military service have? Employers, regardless of size, must make reasonable efforts to accommodate disabilities incurred or aggravated during military service. If an employee cannot perform the job which he or she would have held but for the absence or the job held before the absence with a reasonable accommodation, the employee is entitled to a position of equivalent seniority, status, pay and duties which the employee can perform with or without an accommodation. If the employee cannot perform any equivalent positions with or without an accommodation, the employee must be given the position consistent with the employee's abilities which most nearly approximates the position that would have been held but for the absence in terms of seniority, status and pay. What documentation consistent with the employee's abilities is required for reinstatement? Employees are not required to provide any documentation upon return from a military leave of absence for purposes of a fitness for duty examination or for service of less than 31 days. Employers can require the following documentation from employees whose service exceeded 30 days:
Employees must be reinstated without documentation if the documentation does not exist or is not readily available at the time of the request for documentation. If documentation later becomes available and establishes that the person was not entitled to reinstatement, the employer may terminate the employment and the provision of any rights or benefits provided pursuant to USERRA. Employers can require employees who have served for more than 90 days in a uniformed service to provide the documentation prior to crediting the employee with time for military service for pension purposes. An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available. Can employees take time-off before returning to work following military service? USERRA does not limit the employees' activities during the post-service grace periods of 14 days following service of 31 to 180 days or 90 days following service of 181 days or more. Are there any circumstances under which reinstatement can be denied? Reinstatement can be denied if the employer's circumstances have so changed as to make reemployment impossible or unreasonable, the person has been disabled or had a disability complicated by the military service and it would be an undue hardship to accommodate the disability, or the pre-service employment was for a brief, nonrecurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a significant period. The employer has the burden of proving the grounds for the refusal to reinstate. What happens if an employee does not want to return to work following a military leave? An employee gives up their USERRA rights and protections if they knowingly provide written notice of intent not to return. An employer has the burden of proving that the employee was aware of the specific rights and benefits to be lost by providing a written notice. Accordingly, employers should offer reinstatement unless the employee submits written confirmation of an intent not to return. If such a written notice is received, the employer should provide the employee with a fact sheet regarding USERRA rights and request a written confirmation that the employee is aware of the specific rights and benefits he or she will lose by rejecting reinstatement. Does USERRA protect employees from termination of employment after reinstatement? Employees who are reinstated after military service cannot have their employment terminated because of their military service. Employees who served for 30 days or less are not entitled to any additional job protection. Employees who served for more than 30 days but less than 181 days cannot have their employment terminated except for cause for 180 days after reemployment. The for cause requirement is extended to one (1) year after reemployment for employees who served for more than 180 days. What effect does a dishonorable discharge have on USERRA rights and protections? A person's entitlement to the benefits of USERRA terminate upon the occurrence of any of the following:
Can an employee take legal action against an employer for violation of USERRA? USERRA provides a private cause of action. Employees can file claims against employers in federal court for violations of USERRA. USERRA does not contain a statute of limitations and expressly prohibits the application of state statutes of limitation. Thus, there is no set deadline for when a case must be filed. The doctrine of laches, however, may apply, permitting an employer to avoid liability if it can show that an inexcusable delay has prejudiced its ability to defend the action. Certainly, a laches argument will be unavailing unless at least one (1) year, and most likely several years, have elapsed. Can the government take legal action against an employer for violation of USERRA? Employees may file a complaint of a USERRA violation with the Department of Labor, although this is not a prerequisite for filing a private claim against the employer. There is no set time period in which a claim must be filed because USERRA does not contain a statute of limitations and expressly prohibits the application of state statutes of limitation. The Department of Labor must investigate all complaints. If the Department determines that the alleged conduct occurred, the Department will attempt to conciliate the matter. If conciliation fails, the Department will inform the employee that he or she is entitled to have the matter referred to the Attorney General. An employee can choose to sue privately or have the case referred to the Attorney General. The Attorney General can file an action against the employer on behalf of, and as attorney for, the employee. The Attorney General, however, is not required to proceed on all actions referred to it, and employees retain the right to bring a private cause of action if the Attorney General declines to move forward. Where there has been an inexcusable delay in filing an action, an employer may be able to avoid liability by proving prejudice to its defense. What remedies are available if a USERRA violation is proven? A court can require an employer to comply with USERRA by ordering reinstatement to a specific position, reinstatement of benefits, or the granting of other rights guaranteed by USERRA. Employees can recover lost wages and benefits. Liquidated damages in an amount equal to the amount of lost wages and benefits can be assessed if the court determines that the employer's failure to comply with USERRA was willful. An individual who prevails in an action and has obtained private counsel can be awarded reasonable attorney fees, expert witness fees, and litigation expenses. If you have any issues involving employee military leave, please contact William A. Cumming or Marcy R. Frost at Moss & Barnett. ©Moss & Barnett, A Professional Association, 2003 |
