Published on January 31st, 2017 by Alan L. Sklover
“ For those who have fought for it,
life has a flavor the protected will never know.”
– Author Unknown
ACTUAL CASE HISTORY: Are you or a loved one a member of the U.S. Armed Forces? National Guard? Reserves? Being called up for military service or training? Considering signing up for service or training?
If so, there is a U.S. federal law that you should know about. It provides very valuable employment-related legal rights to members of the armed forces and other uniformed services who are absent from work due to military service or training. The name of the law is the Uniformed Services Employment and Reemployment Rights Act, commonly called “USERRA.” USERRA seeks to minimize disruption to the lives of service members by ensuring that they are able to retain civilian employment and benefits while serving their country.
Simply put, USERRA provides those who perform military service (a) continuation of certain benefits during their military service, including health care coverage, (b) re-employment rights to employees of civilian employers who are returning from military service or military training, and (c) certain rights and benefits upon return, including seniority.
The idea underlying the USERRA law is to ensure that serving your country is as least damaging to your career as possible, while balancing the varied interests of the military, the employee and the civilian employer.
LESSON TO LEARN: The United States holds its military, including its members of its military and all uniformed services, in high esteem. Not only does the U.S. each year spend more on its military budget than do the next 17 countries combined, but it does a lot to care for service people during and after they serve.
One thing the U.S. does for its military service members that many are not aware of is that it gives them legal rights to (a) continued benefits during their military service, (b) re-employment in their civilian jobs after their service, and (c) no loss of accrued pension time, tenure and the like after their military service.
Those who train and/or serve in the uniformed services, as well as their loved ones, should take the time to understand these very valuable legal rights. They are far and away above any such rights given to others in American society.
The three most important things that you need to understand and take away from the Q’s and A’s below are:
(1) NOTICE: It is important that you give written pre-departure notice, and timely pre-return notice, as well, to your employer;
(2) RECORDS: Service members are advised to do all they can to maintain military records, including signed orders, that may be helpful in asserting USERRA rights; and
(3) RETURN TIME: Depending on the length of your absence for service time or training, the service member will be required to report back to work within a specified period of time.
WHAT YOU CAN DO: Take the time to understand the legal rights provided to members of the U.S. uniformed services, just in case someone you know and care about may be affected. The following are the most frequently asked questions about USERRA, and the answers, including who is eligible, what USERRA rights are, and how the law works:
1. When did USERRA become a law? In 1940, on the verge of World War II, a law entitled the Veterans’ Reemployment Right Act, commonly called the “VRR” was enacted. That law gave limited rights to certain veterans returning from military service. On October 13, 1994, President Clinton signed into law the Uniformed Services Employment and Reemployment Rights Act, or “ USERRA,” that expanded on the rights under the VRR, and also expanded those people who are eligible for its protects and rights.”
A. USERRA RIGHTS TO RE-EMPLOYMENT FOLLOWING SERVICE
2. Who is eligible for reemployment rights under USERRA? People who satisfy each of the following five eligibility criteria are eligible for USERRA rights:
i. Those who have given uniformed service who hold, or have applied for, a civilian job;
ii. Those who have given uniformed service and have given written or verbal notice to the civilian employer prior to leaving the civilian job for military training or service (except when precluded from giving such notice by military necessity);
iii. Those whose military service has not exceeded five years of uniformed service cumulatively;
iv. Those whose military service has ended under conditions other than dishonorable discharge; and
v. Those who report back to the civilian job in a timely manner or submit a timely application for reemployment.
3. What reemployment rights are potentially available following military service and state call-ups? USERRA applies to voluntary as well as involuntary military service, during peacetime or wartime.
However, USERRA does not apply to state call-ups of the National Guard for disaster relief, civil disorders, riots, and the like. Any protection for such types of duty must be provided by the law of the state involved.
4. What kind of prior request, notice or forms does USERRA require be provided by an employee to his or her civilian employer? The person performing the military service, or an official representative of the uniformed service – prior to leaving for military training or service – must give advance written or verbal notice to the civilian employer, and then again upon completion of that service or training, prior to return. The notice requirement applies to all categories of military training and service.
Both prior notice and subsequent notice are not required if precluded by military necessity or if the giving of such prior notice is otherwise impossible or unreasonable. A determination of military necessity will be made pursuant to regulations prescribed by the U.S. Department of Defense, which are rather rare.
USERRA does not specify how much prior notice is required, but the U.S. Department of Defense has advised service members that they should provide their civilian employers as much advance notice as possible.
5. Is an employer entitled to require proof of military duty actually performed? Yes. USERRA provides that following periods of military service of 31 days or more, the returning employee must, upon the employer’s request, provide documentation that establishes the length and character of the service and the timeliness of the application for re-employment. Re-employment may not be delayed, however, if such documentation does not exist or is not readily available.
In general, the following documents have been determined by the U.S. Secretary of Labor to satisfy proof of eligibility for reemployment: (a) discharge papers, (b) leave and earnings statements, (c) school completion certificate; (d) endorsed orders; or (e) a letter from a proper military authority.
6. What is USERRA’s “five-year cumulative limit” and how is it computed? USERRA includes a five-year “entitlement period,” which is the amount of time, cumulatively – while working for a particular employer – that a person may be in military service, and yet maintain his or her USERRA rights. When a person starts a new job with a new employer, he or she receives a fresh five-year cumulative limit.
There are three general exemptions to this “five year cumulative entitlement limit”:
a. When the employee, through no fault of their own, is unable to obtain a release from the service, often due to an imposed commitment to remain in consideration of significant initial military training the employee signed up for;
b. When the employee is required to engage in drills and annual training certified by the military to be necessary for professional military development, or skill training/retraining; and
c. Regarding service performed during a time of war, national emergency, and other times of critical military need.
7. Can a person be required to use earned vacation while performing military service? The answer, simply, is “No.”
8. Is an employee entitled to time off prior to his or her reporting date for military service? USERRA does not specify a specific amount of pre-reporting time off that is required to be given to a duty-bound employee. Some employers voluntarily provide a week or two to permit the employee to prepare to travel. At a minimum, though, USERRA does require that the employee be permitted sufficient pre-reporting time off sufficient to travel to their place of duty.
9. What is the timeframe within which a person has to report back to work or apply to reinstatement? There are three “formulas”:
a. Following Military Service of 1 to 30 consecutive days: The employee must report back to work on the first calendar day following (i) the period of service, (ii) plus the time of transportation, and (iii) 8-hour period of rest. (If impossible, flexibility may be requested);
b. Following Military Service of 31 to 180 consecutive days: The employee must submit a written or verbal application for reemployment with the employer within 14 days after the completion of service. . (If impossible, flexibility may be requested);
c. Following Military Service of more than 180 consecutive days: The employee must submit a written or verbal application for reemployment with the employer within 90 days after the completion of service. . (If impossible, flexibility may be requested);
d. These deadlines can be extended for up to two years to accommodate a period during which an employee was hospitalized for, or convalescing from, an injury or illness that occurred or was aggravated during a period of military service.
B. USERRA RIGHTS TO BENEFITS DURING AND AFTER MILITARY SERVICE
10. Does USERRA give an employee the right to employment-related benefits from the civilian employee during military service? Yes, USERRA gives an employee the right to elect continued health insurance for him/herself and his/her dependents, during periods of military service.
a. For periods of 1 to 30 consecutive days of military service or training: The employer can require the employee to pay only the usual employee share, if any, of the cost of such coverage;
b. For longer periods of service or training: The employer is permitted to charge the employee up to 102% of the entire premium.
c. Immediate reinstatement of civilian health insurance coverage is required: Health plans cannot impose a waiting period or exclude the employee based on his/her having any preexisting conditions.
d. Other non-seniority benefits: To the extent the employer offers other non-seniority benefits (e.g., holiday pay or life insurance coverage) to employees on non-military leaves of absence, the employer is required to provide these same benefits to an employee during a period of uniformed service. If different treatments in this context are afforded different types of leaves, then the employee on a military leave must be given the most generous treatment afforded.
11. What is an employer required to provide to a returning service member upon reemployment? Assuming the eligibility requirements are met (See Section 2, above) USERRA entitles returning employees with four basic entitlements:
a. Prompt Reinstatement;
b. Accrued Seniority, as if continuously employed, including such things as status, rate of pay, pension vesting, and credit for the period for pension benefit calculations;
c. Training, Retraining and other Accommodations, particularly in cases of long-term service and service-related disability; and
d. Special Protection against Discharge, except for “Cause.”
12. Is the returning employee always entitled to have the same job back? No, not always:
a. If the period of military service is less than 90 days: The employee is entitled to the job he or she would have attained absent the military service, provided the employee is or can become qualified for that position.
b. If the period of military service is 91 days or more: The employer may reemploy the returning employee as if it was a shorter leave, or in a different position of “like seniority, status and pay the duties of which the employee is qualified to perform.“
13. What if the returning employee is not qualified for the offered reemployment position? Those who have been on long-term military leave may suffer from “dulled skills,” especially in positions requiring significant technical skills. USERRA requires employers of such employees to devote “reasonable efforts” to assist that persons in becoming qualified, which include training, education and coaching so long as they don’t entail undue hardship to the employer.
14. What if a returning employee is now disabled? USERRA requires the employer to make “reasonable efforts” to accommodate employees with a disability incurred or aggravated during military service. If the returning employee is disabled to the extent that he or she cannot be reasonably accommodated, then the employer must reemploy the employee in a different position for which he or she is qualified to perform which is the “nearest approximation” to his/her former position in terms of status and pay, will full seniority.
A disability need not be permanent to confer rights under USERRA. For example, if a person breaks a leg during annual training, the employer may have an obligation to make reasonable efforts to accommodate the broken leg.
15. How does USERRA address discrimination by an employer or prospective employer? USERRA prohibits employment discrimination against those who give or may give uniformed service in two basic ways:
a. No denial of employment or benefits of employment: USERRA’s Section 4311(a) provides: “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.”
b. No discrimination or retaliation against people who exercise USERRA-related rights: USERRA’s Section 4311(c)(1) provides “An employer may not discriminate in employment against or take any adverse employment action any person because such person has taken an action to enforce a protection afforded any person under this chapter . . .[or testifies for or assists such person].”
Military Service? You’ve got special employment rights!! Two Model Letters: Pre-Service and Post-Service USERRA Notices. It shows you “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!
16. In a lawsuit claiming USERRA discrimination or retaliation filed by an employee, does the employee or the employer have the burden of proof? Quite unusually, it is the employer or prospective employer. USERRA provides that a denial of employment, or an adverse action taken by an employer, will be unlawful if a connection to military service or training was a motivating factor in the decision, even if not the only factor or not the primary factor in the denial or adverse action. The employer or prospective employer must prove that the action – denial of employment, denial of employment benefits, or adverse employment action would have been taken even in the absence of the military service or training.
In Summary . . .
USERRA provides very valuable legal rights to those who provide uniformed service to our country. It is a well-thought-out law, and quite practical, as well. If you or someone you know plans to provide military service, is providing military service, or has provided military service, its significant advantages should not be ignored. Care, though, should be taken to timely provide necessary notices.
P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can often be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those who have provided, or may provide, uniformed service, it’s important that you know you have special employment rights, so you can engage in your wisest job and career “navigation and negotiation.”
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*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
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Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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