A PRIMER ON THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
OF 1994: WHAT EVERY EMPLOYER NEEDS TO KNOW
The Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that
provides members and former members of the United States armed forces (active
and reserve) the right to return to a civilian job they held immediately prior
to military service.
EMPLOYEES ENTITLED TO USERRA PROTECTION
An employee who is recalled to active duty qualifies for USERRA protection
when the following five criteria are satisfied:
JOB. The employee held a full-time or part-time regular position at the
time he or she was recalled to active duty.
NOTICE OF RECALL TO ACTIVE DUTY.
The employee or a responsible military officer gave either oral or written
advance notice to the employer prior to the employee leaving for active duty,
unless circumstances existed under which the notice requirement was
waived.
DURATION OF ABSENCE FROM WORK. Unless a specific exception applies,
the employee was not gone from his or her job on active duty for more than five
years. Periods of active duty are added together for a cumulative total,
but this total excludes most periodic and special Reserve and National Guard
training.
CHARACTER OF SERVICE. The employee received an honorable or general
discharge, of which the employer is entitled to ask for proof.
PROMPT RETURN
TO WORK. The employee returned to work promptly. If the employee was gone
30 days or less, he or she is allotted safe travel time from the duty site and
eight hours of rest, after which he or she must then report back to the
following shift at work. If the employee was gone 31 to 180 days, the
employee must request in writing to return to work within 14 days after
completing military service. For an employee who was gone 181 days or
more, he or she has 90 days to request in writing to return to work.
RIGHTS AND RESPONSIBILITIES UNDER USERRA
USERRA is primarily a
return-to-work statute, under which the employee is treated as if he or she
never left work to go on active duty. However, while the employee is on
active duty, the employer is not required to pay the employee’s salary.
Nonetheless, an employee who is on active duty for more than 30 days may remain
on the company’s health plan at the employee’s cost for a period of up to 18
months.
Upon returning from active military service, the employee is entitled
to prompt reinstatement, promotions, seniority, and any training that he or she
missed while on active duty. In fact, the employer must accommodate any
service-connected disability. Health insurance must also be immediately
reinstated with no waiting period and no exclusion of pre-existing
conditions.
Employees entitled to USERRA protection are afforded special
protection from discharge. While the length of protection varies dependent
upon the employee’s length of active duty, in the event the employer discharges
the employee during the protected period, the employer must prove the discharge
was not because of military service. Additionally, the employee is not
limited to benefits arising under USERRA. Rather, employees entitled to
USERRA protection remain entitled to any other benefits they may have under
state law, contract, or a collective bargaining agreement.
CONCLUSION
In sum, both employees and employers should be aware of
the rights and responsibilities conferred under USERRA. When an employee
has met the five criteria and is entitled to protection under USERRA, the
employee has the right to bring suit against his or her employer in federal
court for USERRA violations. An employee who succeeds on his or her USERRA
claims may also recover attorney fees and court costs. Therefore,
employers should take heed of USERRA to avoid finding themselves in federal
court facing costly litigation.
Jeffrey Peters, Esquire
Attorney Peters
practices from Preti Flaherty’s Bath, Maine, office. As a 1985 graduate of
the United States Naval Academy and a Lieutenant Commander in the Naval Reserve,
he possesses unique expertise and first-hand knowledge of all aspects of
military law, including USERRA. You may reach Attorney Peters at
207.443.5576 or jpeters@preti.com
