Military Leave Law: Employer Obligations

During the early 1990s and again in the 2000s, many American citizens were called away from work to military duty. Private employers weren't sure what to do. They didn't want to fire soldiers who had to serve, but they needed workers on the job. When those service members came home and returned to civilian life, their jobs were gone.

The Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 43) changed the law. Reservists and National Guard members called to active duty are now on unpaid leave. Employers must hold their jobs for them until they return. There are obligations for all parties. The USERRA makes it easier for business owners and service members to cope with the dislocation associated with military life.

The Uniformed Services Employment and Reemployment Rights Act of 1994

The USERRA is a federal law that ensures returning service members have jobs waiting for them when they return from deployment. It defines what employers must do when reserve service members go on active duty. The law covers all members of the armed forces called out for inactive duty training and active duty, including:

• Active duty military (all branches)
• Active reserve
• Inactive reserve
• Army and Air National Guard
• Disaster response work

The law prohibits employers from discriminating against employees who serve in the military. It also gives eligible service members job reinstatement when they finish military service. Employers do not have to pay the employee during military leave.

Employer Duties

The USERRA applies to all employers regardless of size. A small business with a single employee must follow USERRA requirements. Under the law, employers cannot discriminate against service members when hiring, promoting, or offering benefits. For instance, an employer may not refuse to hire a reservist because they might be subject to activation.

The law protects service members' job status, pay, and benefits as if they were still at civilian jobs. A service member on a six-month deployment should receive the same pay raise as other similarly situated workers.

Reemployment Eligibility

The primary purpose of USERRA is to ensure that service members can return to civilian employment. Employers must restore the person to the same position or an equivalent position if the employer had to fill the job during the employee's absence.

The guarantee of reemployment applies if:

• The employee gave advance notice of upcoming military service or training. The employee must provide reasonable notice if advance notice is not possible due to military necessity or other cause.
• Cumulative military leave with that employer does not exceed five years. Exceptions exist when the service member cannot get a release during a time of war, national emergency, or regular reserve drills.
• A discharge must have been under honorable conditions, via either an honorable or general discharge. Dishonorable, bad conduct, other than honorable, dismissals, and "dropped from the rolls" discharges are not eligible for USERRA protections.
• For consideration, employees must apply for reemployment within a certain timeframe. Depending on the length of military leave, the employee has from one to 90 days to reapply for their position.

The U.S. Department of Labor has an interactive USERRA Advisor to help business owners follow USERRA guidelines.

When the employee returns to work, the employer must give the following benefits to the employer:

• Apply the employee's military leave toward seniority status: The service member must receive increased pay, promotions, vacation time, and pension vesting as if continuously employed.
• Provide retraining: If the employee cannot return to the original position, the employer must make reasonable efforts to qualify the employee for a reinstatement position.
• Not discharge the employee without cause: Employers cannot fire a returned employee without cause for at least 180 days after rehire (one year for longer deployments).
• Immediate reinstatement of health insurance coverage: Employers cannot impose a waiting period on any health insurance for the employee or their dependents. If the insurance company placed a waiting period on its own, the employee should contact the Veteran's Administration.

Private health insurance may impose a waiting period for service-related disabilities.

Wounded Veterans

USERRA and the Americans with Disabilities Act (ADA) require employers to make reasonable accommodations for employees with disabilities. USERRA gives extra protections, requiring employers to make reasonable efforts not only to accommodate the disability but to maintain employment. Requirements include:

• The employer must make reasonable accommodations under the ADA so the person can perform their job duties. The job may be their original job or a new position.
• Employers must offer a position of equivalent seniority, status, and pay if the person cannot perform the essential job functions despite reasonable accommodations.
• If the person cannot qualify for the original or alternate position, employers must find a position that approximates the second position in terms of seniority, status, and pay.

Exceptions to Reemployment Requirements

In some situations, employers are not required to rehire a military service member returning from active duty. The employer has the burden of proving these defenses, not the returning employee. Some of these defenses are:

• Changes in the workplace make it impossible to rehire the employee: An example is a reduction in the workforce that eliminated the worker's position and left no equivalent job.
• Reinstatement would create an undue hardship for the employer: Undue hardship is subject to ADA guidelines for a qualifying hardship, such as cost to the employer and size of the facility.
• Employment of servicemember was so brief that there should be no reasonable expectation of retention: An employee hired two days before leaving for military training has no expectation their job will be there when they get back.

Other Employer Frequently Asked Questions (FAQ)

USERRA protects military employee rights. Employers should know who they are and what rights are being protected before legal situations arise.

If I bought out another business, am I now a service member's employer?

Yes, according to USERRA. An employer includes a "successor in interest § 1002.35." Several criteria are used to determine if an employer is a successor in interest, such as continuity of operations and similarity of products.

A successor in interest does not need to know that employees may be claiming a right of reemployment for the right to apply.

Are hiring halls considered employers?

In some occupations, such as longshoreman or construction, workers report to a union location for job assignments. In these cases, the union hiring hall has the same duties and responsibilities as an employer under USERRA and other labor laws.

Do part-time employees have USERRA rights?

Yes. Part-time, probationary, seasonal, and temporary workers have the same rights as full-time employees under USERRA. If the employee had a reasonable expectation of returning to the same job when returning from military service, their job status does not matter.

Do striking workers have USERRA rights?

Employees on strike, on leaves of absence for other reasons, or laid off with recall rights are all still employees under USERRA. If an employee is on strike and goes on active duty, employers may not terminate them. Employers must rehire them upon their return.

State Military Leave Protection

USERRA covers members of the National Guard for duties related to state service. States also have similar laws to prevent employers from discriminating and require reinstatement after leave for Guard service.

Need Legal Help? Speak With an Attorney

USERRA is a law with a specific purpose. Business owners should ensure they comply with federal regulations and state laws that mirror federal laws. Talk to an employment law attorney if you have concerns about your labor policies.