Editor's note: Katie Clarey is a regular freelancer with HR Dive. Her column, Back to Basics, began three years ago, when she started covering employment law. If you're new to HR (or just need a little refresher), follow along as she speaks with legal experts, peruses federal guidance and lays out the basics of federal employment law. Feel free to send tips, questions and feedback to [email protected]
Emile serves in the National Guard. Most of the time, however, he works at a wholesale retail store, where he mans the tech section, helping customers decide which laptop, printer or TV to purchase.
When COVID-19 vaccines became widely available in Michigan, where Emile lives, he was called up to help orchestrate a mass, state-run clinic. He told his manager, who met the news with dismay. Emile was one of the store's best workers — he always arrived on time, knew the product line well and treated frustrating customers politely. He was on schedule to earn a promotion in just a couple months.
When Emile returned to work after a few months of leave, his manager brought him back to the same position. But Emile sensed something was off; hadn't he read on a poster in the break room that he was entitled to that promotion he would have earned had he not taken leave?
Emile's inkling was correct. The Uniformed Services Employment and Reemployment Rights Act grants service members reemployment rights, and it includes a provision that employers give them a promotion — and all the benefits that promotion might entail — they would have earned had they not been out. To help Emile figure out what he's owed, and to help his manager stay out of trouble, I called Gregory V. Murray, senior counsel at management-side law firm Fisher Phillips.
USERRA makes good on its name in the protections it provides. The law protects employees who are members of the uniformed services from discrimination and it gives them — you guessed it — reemployment rights after they've spent time in active military duty.
Employers need to spend some time getting to know the ins and outs of USERRA, as it's more generous than other federal anti-discrimination laws. "It provides a great amount of protection for people who have been called out for active duty," Murray said.
The law prohibits employers from discriminating against past or present members of the uniformed service, or those who have applied for membership in the uniformed service, by denying initial employment, reemployment, retention in employment, promotion or any employment benefit because of military status, according to the U.S. Department of Labor, which enforces the law. The law includes a retaliation provision, too.
USERRA applies to all employees performing duty in the uniformed services — the Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps. Workers who complete service in the Army National Guard and Air National Guard also have rights under USERRA, according to DOL.
Uniformed service encompasses active duty, active duty for training, inactive duty training, initial active duty training and funeral honors. It also applies to absences for fitness of duty examinations. USERRA covers virtually all U.S. employers and employees, including part-time and probationary workers.
Breaking down USERRA with a timeline
Employers may understand their obligations under USERRA better if they consider the law according to a common breakdown of events: An employee takes leave, completes the leave and returns to work.
One obligation falls outside the timeline, however. Employers must either notify employees individually or post a notice about their rights under USERRA. DOL provides a poster for employers to hang alongside other public notices.
Now for our chain of events:
An employee leaves for duty
Employees can give either written or oral notice that they're taking military leave, and they don't have to provide proof. "You take the employee's word for it," Murray said. When the worker returns, the employer can ask about the employee's duties to ensure the person is entitled to reinstatement, so long as the leave lasted longer than 30 days.
USERRA encourages workers to give notice as soon as possible — 30 days in advance, preferably. But that's not a strict requirement. "Frequently, you'll have somebody show up today who's going on leave tomorrow," Murray said. "There's not much an employer can do about that."
The National Guard generally provides service members an annual letter outlining training dates for the year. Employers can request that information to make scheduling easier. But they need to make sure that knowledge doesn't create more problems than it solves, Murray said; if a supervisor collects the information only to lose it or leave it unrecorded, employees may assume their military leave is accounted for and leave unannounced.
An employee completes the leave
Employers will need to pay attention to the length of service members' leaves, as it impacts the time limits for their return to work.
- Fewer than 31 days of service: If employees are gone for fewer than 31 days, they need to be back at work "by the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period," DOL says.
- Thirty-one to 180 days: The employee needs to apply for reemployment within 14 days after the military service ends.
- More than 180 days: The employee must apply for reemployment by 90 days post-military service.
Employers should note that reporting or application deadlines are extended for up to two years for anyone who is hospitalized or convalescing following a service-related injury or illness.
An employee returns to work
USERRA's provisions for an employee's return to work is where the law gets tricky. Employers may feel tempted to apply the return-to-work logic they learned from trying to comply with other national employment laws, like the Family and Medical Leave Act or the Americans with Disabilities Act. Should they do this, "they will be significantly wrong in most cases," Murray said.
Unlike the FMLA and ADA, USERRA sets up something referred to as "the escalator principle." Under this principle, USERRA provides that employers must return service members to work in the job that they would have attained had they not been gone for military service. This means they may enjoy elevated seniority, status, pay and other rights and benefits.
To make matters more complicated for employers, USERRA also requires organizations to make reasonable effort to enable returning service members to qualify for the elevated reemployment. Training may be necessary.
If a returning employee can't step up into such a position, the employer is obligated to place the worker in "any other position that is the nearest approximation to the escalator position and then to the pre-service position."
DOL says that about 15% of claims they receive under USERRA are from workers who say they were not placed in proper jobs upon their return from military service.
There are a few conditions returning employees must meet to gain these rights, DOL says. Their cumulative period of military service with the employer must have added up to no more than five years; they must not have been released from service under dishonorable conditions; and they must have returned to their civilian job in a timely manner.
As it turns out, Emile was right. His manager bumped him up to the assistant manager of the tech section, and his paycheck got a little fatter.