The Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA), found in the federal laws at 38 U.S.C. §§ 4301 to 4335, provides reemployment rights to returning members of the uniformed services. This law applies broadly: “employer” is defined as any person, institution, organization, or other entity that pays a salary or wages for work performed or that has control over employment opportunities, including:

1. a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;
2. the Federal Government;
3. a State;
4. any successor in interest to a person, institution, organization, or other entity referred to in § 4303; and
5. a person, institution, organization, or other entity that has denied initial employment in violation of § 4311.

38 U.S.C. § 4303(4)(A).  The definition of “employee” is no less broad:  it encompasses “any person employed by an employer” regardless  of the number of employees. 38 U.S.C. § 4303(3).  USERRA’s retaliation provisions cover anyone taking action to enforce USERRA, testifying in a USERRA action, assisting in an investigation, or exercising a right protected by USERRA, regardless of whether that person is themself in the military. 38 U.S.C. § 4311(b).  (The limit is that the employer cannot retaliate by taking “adverse employment action” or by “discriminat[ing] in employment”, which suggests the target must be an employee to be protected, or an applicant.)

Under USERRA an employee can advance claims against his or her employer for:

1. failure to reemploy upon the employee’s return from service (§ 4312);
2. premature termination (§ 4316); and
3. discrimination in initial employment, reemployment, retention in employment, promotion, or any benefit of employment, or retaliation for exercising a right or engaging in an activity protected under the Act, where the employee’s uniformed service is a motivating factor in the employer’s adverse action (§ 4311).

The law defines “benefit of employment” to include any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.  38 U.S.C. § 4303(2).

With respect to discrimination, even if there are other reasons behind the challenged employment decision, the action violates USERRA if the uniformed service is a motivating factor in taking that action.  The employee need not prove that the USERRA leave was the sole reason for the adverse employment action.  See Kelley v. Maine Eye Care Assocs., P.A., 37 F. Supp. 2d 47, 54 (D. Me. 1999).  An employer can avoid liability by proving that the adverse employment action would have been taken even in the absence of the employee’s military status.  38 U.S.C. § 4311(c)(1).  If an employer is at the stage of proving that it would have taken the same action regardless of the leave, though, that means it is in litigation and hasn’t managed to avoid getting tangled up in court.

Consequently, if an employee is engaging in workplace misconduct, that misconduct must be handled in a way that makes clear what action is being taken for what reason.  Not only should there be good documentation, but it is also important to act cautiously and deliberately; it is no different than handling misconduct issues around an employee who has just had a workers’ compensation injury or requested FMLA leave or informed management of a disability and need for accommodation.  Whoever is handling the misconduct should be careful not to let the employee’s military service affect disciplinary decisions.  It helps to ask, “would I have fired/written up/warned Mr. X who is not returning from deployment for the same conduct?  Does the notice of impending military leave make this conduct less tolerable?”  The answers should be “yes” and “no.”  Applying the “golden rule,” albeit not a legal teaching, also helps reduce the risk of the matter landing in court.

With respect to the right to reemployment, there are several principles to consider:

1. The returning service member is entitled to the seniority and other rights and benefits that the employee had on the date their service in the uniformed services began plus any additional seniority, rights and benefits that the employee would have gotten if the employee had remained continuously employed.
2. When an employee is absent from employment because of military service, an employer must treat that absence as unpaid leave or a leave of absence.  The employee, upon return, is entitled to whatever rights and benefits an employee out on any other leave of absence would have received.
3. Section 4313 of USERRA prescribes the priority order of the position to which an employee returning from a period of uniformed service is entitled.  If the length of service is for less than 90 days, the employee must be returned to the position they would have been in if their continuous employment had not been interrupted by military service or, if not qualified for that, in the position they had when service began.  If service is longer than 90 days, the person must be put in the position the employee would have been in if their continuous employment had not been interrupted by their military service or, if not qualified, in the position they had when they left or a position of like seniority, status, and pay.
4. If the employee incurs a disability while serving or a disability is aggravated as a result of their service, the employer must make reasonable efforts to accommodate the disability (already required by other laws).  If the accommodation isn’t enough to make that work, the employer must try to find another position that the employee is qualified to do (or would become qualified to do with reasonable efforts by the employer) that is the equivalent in seniority, status, and pay.  If that option isn’t available, the employee must be given a position that is the nearest approximation to such a position.  In other words, try to find them work and make it similar in seniority, status, and pay.
5. An employer may not refuse to reemploy a returning service member on the basis of the timing, frequency, and duration of the employee’s military training or service, so long as the service does not exceed five years and the employee provides notice of his or her service to the employer.  The employee must provide notice in advance of the service, including the length of time.  Upon completion of service, the employee must submit an application for reemployment, providing advance notice of the intent to return to the prior position of employment.  There are a number of rules and guidelines on what that return notice must involve.

Ultimately, however, an employer is not required to reemploy a service member if the employer’s circumstances have so changed as to make such reemployment “impossible or unreasonable,” if reemployment would impose an undue hardship on the employer, or if the position left was for a “brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely.”  Risky to base a decision on one of these outs?  It would certainly be advisable to try everything possible to find a place for the returning service member and document those attempts.  It may feel difficult and there may be some who want to throw up their hands and say, this is unreasonable, but litigation is also difficult, as well as expensive, and the risk averse need to take that into account.  The spirit of this law is certainly grounded in trying to avoid punishing an employee for serving their country.  In recognition of this latter point, an employee seeking relief under the section requiring reemployment need not meet the additional burden of proof requirements for discrimination cases: the employee need not prove that the employer intended to violate USERRA by refusing reemployment.