USERRA: A Duty To Re-Employ Our Uniformed Service Members

The increasing demand for emergency response personnel in our country requires uniformed service members to temporarily leave their civilian jobs and report for military duty. With the growing number of employees required to leave their civilian positions for extended periods of time, congress passed an amended version of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)¹ granting additional rights to beneficiaries of the Act. Employers must adhere to the Act when dealing with uniformed servicemen and issues pertaining to their employment, reemployment, retention, promotions, and benefits of employment.

Employees covered under USERRA retain the right to be free from discrimination and retaliation. An employer may not deny the employee initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of service, performance of service, application for service, or obligation. Employees discriminated against must show by a majority of evidence that his or her protected status was a substantial or motivating factor in the adverse employment action. The employer must then prove by a majority of the evidence that it would have made the same decision without regard to the employee’s protected status.²

USERRA applies to members of the Armed forces, the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency when performing service voluntarily or involuntarily, including active duty, active duty for training, inactive duty training, full-time National Guard duty, and those persons performing funeral honors duty. Service also includes services performed as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or participation in an authorized training program, even if the individual is not a member of the uniformed services.

Under USERRA, employees called to service or training retain their right to be reemployed in a civilian job if they provide an employer with advanced written or verbal notice of their impending service. The statute does not address the amount of time required for notice. No notice is necessary if the employee cannot give notice due to military necessity, impossibility, or unreasonableness. USERRA also requires, at the employee’s request, that health benefits continue for the employee and his or her dependents for up to 24 months while in the military.

Congress enacted the Americans with Disabilities Act (ADA) to help ensure that individuals with physical and/or mental disabilities received equal employment opportunities. Learn who is qualified under the act provisions, how to use effective management techniques to avoid violations, and how other laws may affect application of this act.

USERRA allows an employee returning from five years or less of cumulative service to regain former employment. Employees engaged in service exceeding the five-year time limit are generally not granted reemployment, however, certain exceptions apply; the employer must reemploy if the service obligation is not completed, if the employee is unable to obtain releasing orders before the expiration of the five-year term, if the employee is required to undertake additional training, or if the employee is given specific orders to remain on active duty.

Employees separated from service due to a disqualifying discharge or under dishonorable conditions may not apply for reemployment. Employees eligible for reemployment must apply in a timely manner. Employees serving less than 31 days must report to the employer on the first full regularly scheduled work period, eight hours after returning to their residence from service. Where the employee serves for more than 30 days but less than 181 days, the application for employment must be submitted no later than 14 days after the completion of service. Where the employee’s service exceeds 180 days, the application for reemployment must be submitted within 90 days after the completion of service. Case law defines the application for reemployment as involving more than mere inquiry. A written application is not required in every situation and courts determine whether an application for reemployment was given on a case-by-case basis and considers the intent and reasonable expectations of both the former employee and the employer, in light of all the circumstances.³

The employer is not required to reemploy an employee covered under USERRA if the reemployment is impossible or unreasonable and creates an undue hardship on the employer. The statute defines undue hardship as an action requiring significant difficulty or expense, when considered in light of the nature and cost of the action needed. The overall financial resources of the employer and facility, the number of persons employed at such facility, the effect on expenses and resources, the impact upon the operation, the overall size of the workforce are all factors in the determination of undue hardship The Department of Labor’s, Veterans Employment and Training Service is authorized to investigate and resolve complaints of USERRA violations.

This article is intended to provide an overview of USERRA and does not include all of the issues associated with the Act. The full text of the Act can be obtained at www.dol.gov/vets.

¹ 38 U.S.C.S §4301 (2005)

² McGuire v. Ups, 1997 U.S. Dist. Lexis 13225 (D. Ill. 1997)

³ Gillie – Harp v. Cardinal Health, Inc., 249 F. Supp. 2d 1113, 1119 (D. Wis. 2003)

Provided by: HRTutor.com and The Human Equation Email this article USERRA: A Duty To Re-Employ Our Uniformed Service Members By: Anita Setnor Byer
The increasing demand for emergency response personnel in our country requires uniformed service members to temporarily leave their civilian jobs and report for military duty. With the growing number of employees required to leave their civilian positions for extended periods of time, congress passed an amended version of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)¹ granting additional rights to beneficiaries of the Act. Employers must adhere to the Act when dealing with uniformed servicemen and issues pertaining to their employment, reemployment, retention, promotions, and benefits of employment. Employees covered under USERRA retain the right to be free from discrimination and retaliation. An employer may not deny the employee initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of service, performance of service, application for service, or obligation. Employees discriminated against must show by a majority of evidence that his or her protected status was a substantial or motivating factor in the adverse employment action. The employer must then prove by a majority of the evidence that it would have made the same decision without regard to the employee’s protected status.² USERRA applies to members of the Armed forces, the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency when performing service voluntarily or involuntarily, including active duty, active duty for training, inactive duty training, full-time National Guard duty, and those persons performing funeral honors duty. Service also includes services performed as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or participation in an authorized training program, even if the individual is not a member of the uniformed services. Under USERRA, employees called to service or training retain their right to be reemployed in a civilian job if they provide an employer with advanced written or verbal notice of their impending service. The statute does not address the amount of time required for notice. No notice is necessary if the employee cannot give notice due to military necessity, impossibility, or unreasonableness. USERRA also requires, at the employee’s request, that health benefits continue for the employee and his or her dependents for up to 24 months while in the military. Congress enacted the Americans with Disabilities Act (ADA) to help ensure that individuals with physical and/or mental disabilities received equal employment opportunities. Learn who is qualified under the act provisions, how to use effective management techniques to avoid violations, and how other laws may affect application of this act. USERRA allows an employee returning from five years or less of cumulative service to regain former employment. Employees engaged in service exceeding the five-year time limit are generally not granted reemployment, however, certain exceptions apply; the employer must reemploy if the service obligation is not completed, if the employee is unable to obtain releasing orders before the expiration of the five-year term, if the employee is required to undertake additional training, or if the employee is given specific orders to remain on active duty. Employees separated from service due to a disqualifying discharge or under dishonorable conditions may not apply for reemployment. Employees eligible for reemployment must apply in a timely manner. Employees serving less than 31 days must report to the employer on the first full regularly scheduled work period, eight hours after returning to their residence from service. Where the employee serves for more than 30 days but less than 181 days, the application for employment must be submitted no later than 14 days after the completion of service. Where the employee’s service exceeds 180 days, the application for reemployment must be submitted within 90 days after the completion of service. Case law defines the application for reemployment as involving more than mere inquiry. A written application is not required in every situation and courts determine whether an application for reemployment was given on a case-by-case basis and considers the intent and reasonable expectations of both the former employee and the employer, in light of all the circumstances.³ The employer is not required to reemploy an employee covered under USERRA if the reemployment is impossible or unreasonable and creates an undue hardship on the employer. The statute defines undue hardship as an action requiring significant difficulty or expense, when considered in light of the nature and cost of the action needed. The overall financial resources of the employer and facility, the number of persons employed at such facility, the effect on expenses and resources, the impact upon the operation, the overall size of the workforce are all factors in the determination of undue hardship The Department of Labor’s, Veterans Employment and Training Service is authorized to investigate and resolve complaints of USERRA violations. This article is intended to provide an overview of USERRA and does not include all of the issues associated with the Act. The full text of the Act can be obtained at www.dol.gov/vets. ¹ 38 U.S.C.S §4301 (2005) ² McGuire v. Ups, 1997 U.S. Dist. Lexis 13225 (D. Ill. 1997) ³ Gillie – Harp v. Cardinal Health, Inc., 249 F. Supp. 2d 1113, 1119 (D. Wis. 2003)
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