What is Military Leave Law? (or “USERRA”)
The Uniformed Services Employment and Reemployment Rights Act (“USERRA” — 38 U.S.C. 4301) provides extensive rights to soldiers returning home from Iraq and Afghanistan. At its core, USERRA provides that employers may not allow an employee’s active military service, potential active military service, or imminent active military service to enter the decision-making process.
The purpose of USERRA is to expand the rights of employees returning to work from uniformed service by entitling them to positions with their former, pre-service employers, complete with all of the seniority, status, pay and benefits that the service member would have accrued had they never entered the service on active duty.
Former Secretary of Labor, Elaine L. Chao, stated that USERRA was a “major step in ensuring that the brave men and women who are risking their lives to preserve freedom and democracy have their jobs and benefits protected when they return home.” The regulations will “spell out the rights of our returning service men and women and the responsibility of employers to honor their service.”
In general, a returning employee is entitled to reemployment in his or her original position unless the employer’s circumstances have changed as to make reemployment “impossible” or “unreasonable.” The hiring of a replacement is insufficient evidence of impossible or unreasonable circumstances.
Further, USERRA applies the “escalator principle” which generally means that, upon reemployment, the employee is supposed to step back onto the “seniority escalator” not just at the place where they disembarked, but in the position they would have naturally occupied if it had not been for the employee’s military service.
Essentially, if an employee would have ordinarily received a raise or a promotion during his or her time of service, USERRA requires that the employee receive the raise or promotion upon reemployment. And, if the employee is not qualified for the new position, the employer is required to make “reasonable efforts” to attempt to train or otherwise qualify the employee for the new position.
Conversely, if an employee’s job has been eliminated and such elimination would have taken place even if the employee had not been in active service, USERRA does not prevent the employer from eliminating the position.
USERRA also disposes of the “employment at will” doctrine for returning soldiers. Upon reemployment, an employee who has been on active duty for more than 30 days becomes a “for cause” employee, terminable only for good cause. For employees who served more than six months, the “for cause” period is a year following reemployment; for an employee who served between thirty days and six months, the “for cause” period is six months. Returning soldiers are also entitled to FMLA leave, if needed, as though they had never stopped working. The Department of Labor has issued a memorandum stating that the returning employee must be granted his or her FMLA leave if they would have worked 1,250 hours within the preceding 12 months but for the employee’s service in the military. As for benefits, if an employee retirement plan has a particular vesting schedule, the returning employee must be credited with the time spent in active service towards that schedule. If employee contributions are generally required, USERRA provides for a “makeup period” during which the employee can make up for missed contributions (equal to three times the employee’s length of service, up to a five-year cap).
Finally, if a returning soldier comes home and finds that his company has been acquired, the successor corporation owes the same rights to the soldier as though it were the original corporation.
In terms of its application, USERRA is silent as to the enforceable statute of limitations. However, in Risner v. Haines, Sixth Circuit District Judge Lesley Wells of the Northern District of Ohio, Eastern Division, recently held that in certain circumstances USERRA claims may be subject to a four-year statute of limitations. In terms of damages, a prevailing plaintiff may be entitled to compensation for any loss of wages or benefits caused by the employer’s violation of the Act. Additionally, a court may award the individual plaintiff reasonable attorney fees, expert witness fees, and other related litigation expenses. Furthermore, where the violation is considered willful, the court may award liquidated (double) damages. The statute does not define “willful,” but courts generally use the same willfulness standard applied under the Age Discrimination in Employment Act. The provision for liquidated damages applies to cases against states, political subdivisions of states, and private employers, but does not apply to cases against federal agencies as employers. However, the statute does not provide for punitive damages.
There are a number of common mistakes made by employers when USERRA issues arise.
First, USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.
Second, USERRA does not only apply if an individual is called to active duty. USERRA applies at anytime there is performance of a duty on a voluntary or involuntary basis in a uniformed service under competent authority.
Third, all employers must grant military leave on request of a service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit’s commander. Leave can be for required training as well as for extended service.
Fourth, USERRA is not limited to absences up to 5 years. There are some military specialties which require an individual to serve more than 5 years due to the amount of necessary training. These individuals do have protections under USERRA.
Fifth, an employee is not only entitled to be returned to the position they had before their absence but that employee is also entitled to the position they would have likely attained had they not gone away to serve. This means any raises, promotions or other career advancement which the employee would have received had he/she not served, the employee is entitled to receive upon their return.
Sixth, the employer does have to place the employee in the escalator position even if they are not currently qualified for it. The employee must be reemployed in the escalator position or a position of like seniority, status and pay. The employer must make reasonable efforts to assist the employee to become qualified for the position.
Seventh, a severance agreement cannot waive an employee’s rights under USERRA.
In sum, returning military personnel who are attempting to reintegrate into civilian life enjoy strong protections upon their return to the workforce.
The Law Firm of David A. Young, LLC represents military men and women throughout the State of Ohio. Attorney David Young has been certified by the Ohio State Bar Association as a Specialist in the area of Labor and Employment Law. Attorney Young has also been recognized as a Super Lawyer in the State of Ohio for the years 2009 through 2013.
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