Four things you may not know about… USERRA
In the second in a series of blogs examining often overlooked or misunderstood provisions of common employment laws, today we are covering four things employers may not know about the federal Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
USERRA generally protects military service members and veterans from discrimination based on their military service. USERRA also gives employees the right to continue their employer-provided health coverage for up to 24 months during uniformed service or, if they do not elect continued coverage, the right to be reinstated into their employer’s health plan upon reemployment without any waiting periods or exclusions (other than for service-connected illnesses or injuries). USERRA also provides employees the right to elect to continue existing employer-provided health coverage for up to 24 months during uniformed service or, if not electing continued coverage, the right to be reinstated to their employer’s health plan upon reemployment without any waiting periods or exclusions (other than for service-connected illnesses or injuries).
- Who is Covered by USERRA?
Unlike other federal anti-discrimination laws that require an employer to have a threshold number of employees to be covered, USERRA applies to public and private employers regardless of size. Even employers with just one employee are covered.
USERRA covers employees who are: (1) past or current members of the uniformed service; (2) have applied to join the uniformed service; or (3) are required to serve in the military uniformed service.
“Uniformed services” is defined broadly to include not only service in the Armed Forces (i.e., the Army, Navy, Marine Corps, Air Force, Space Force and Coast Guard) and the Army and Air National Guard (including training), but also service in the Commissioned Corps of the Public Health Service or the commissioned officer corps of the National Oceanic and Atmospheric Administration; members of the National Urban Search and Rescue Response System during a period of appointment into federal service; intermittent personnel appointed into Federal Emergency Management Agency service (or to train for such service); and “any other category of persons designated by the President in time of war or national emergency.”
- Who Is Entitled to Reemployment Under USERRA?
One of the key protections for covered employees under USERRA is the right to reemployment in their civilian job upon the conclusion of service in the uniformed services. The reemployment right is not unqualified, however, and individuals must satisfy numerous requirements to exercise their reemployment right unless an exceptions applies.
In all cases, reemployment is not required if the employer’s circumstances have changed such that reemployment would be “impossible or unreasonable” (such as due to a reduction in force impacting the employee’s role) or if the pre-service position was for a “brief or non-recurrent period” and there was “no reasonable expectation that employment would continue indefinitely or for a significant period.” Below are some of the key requirements associated with the right of service members to be reemployed under USERRA.
Advance Notice of Service
USERRA requires that employees provide their employers with advance notice of military service, whether orally or in writing. The employee may give the notice or a uniformed officer in the service where the employee will serve.
However, advance notice is not required if military necessity prevents the giving of notice, or notice is otherwise impossible or unreasonable – for example, where participation in an operation is classified or may be “compromised or otherwise adversely affected by public knowledge.”
Five-Year Service Limit
As a general matter, employees whose uniformed service exceeds five years during the course of their employment with their current employer are not eligible for USERRA’s reemployment protections. There are a number of exceptions to the five-year service limit. In these cases, an employee would have the right to reemployment even after 5 years or more of service. In these cases, an employee would have the right to reemployment even after 5 years or more or service.
Timely Return
To qualify for USERRA’s protections, a service member must generally be available to return to work within certain time limits, which vary depending on the length of the service:
Service of 30 days or less generally requires an employee to report back to work by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service. Employers must allow employees to safely return from the service site and provide at least 8 hours of rest. For service of 180 days or more, an employee’s reemployment application must be submitted no later than 90 calendar days after the completion of military service.
- The deadlines above must be extended by up to two (2) year in the case of injury or illness sustained or aggravated while performing military service.
- Discharge Status
- There are four circumstances in which the status of an employee’s discharge would disqualify them from having USERRA reemployment rights: (1) separation from service with a dishonorable or bad conduct discharge; (2) separation from service under “other than honorable” conditions (as defined by the applicable military branch); (3) dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war; and (4) when the individual was dropped from the military roll due to unauthorized absence for more than three months or imprisonment by a civilian court.
Disability Incurred During Service
If an employee incurs (or aggravates) a disability during uniformed service, the employer must make reasonable efforts to accommodate the disability and help the employee become qualified to perform the duties of the reemployment position. If an employee is not able to qualify despite the employer’s reasonable efforts, they must be reemployed at a position with the same seniority, status and pay as the reemployment job for which they would otherwise be qualified or capable of becoming qualified. However, employers’ obligation to make efforts to qualify returning service members or accommodate employees with service-connected disabilities is subject to an undue hardship defense, similar to under the Americans with Disabilities Act.
What Does USERRA’s “Escalator Principle” Require?
Employers are likely familiar with reinstatement requirements under other laws that provide job protection for employees, such as the Family and Medical Leave Act (“FMLA”). The FMLA regulations state that employees returning after a leave of absence are entitled to return to the same job they held before leaving, or an equivalent position, with equal benefits, pay and other conditions of employment. Returning employees are not entitled for additional pay, benefits, or seniority while on unpaid FMLA leaves (except for certain unconditional increases in pay), unless the bumps are given to employees who are on an equivalent leave status, but for a reason other than FMLA leave.
USERRA takes a different approach, adopting the “escalator” principle, which requires that a returning servicemember be reemployed at the same position they would have held with reasonable certainty had they remained continuously employed with full seniority. If an employee on military leaves would have been promoted or moved up in position if they were not on leave, they must be returned to their previous position. The employee may not have held the same position before. If, for example, the employee was certain to have been promoted if they had not been absent because of military service, then the employee is entitled to the promotion upon reinstatement. The position could also be at a lower grade than the previous one, or a completely different job (due to a reorganization), or even a layoff. The escalator is able to move up or down. This principle is unique to USERRA in terms of federal leave laws and often prompts questions from employers about uniformed service members who plan to return to work. Does USERRA require employers to pay employees during military service? USERRA doesn’t require employers to pay employees during military service, but it does give them other rights and benefits. . . The USERRA regulations state: “Where the treatment of comparable nonmilitary leaves differs, the employer is required to give the service member a more favorable treatment than any comparable nonmilitary leave.” The regulations say that in order to compare leaves, the employer must give the service member the most favorable treatment. . . . In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.
- In a May 2024 opinion in Scanlan v. American Airlines Group, Inc., the Third Circuit Court of Appeals (which includes the states of New Jersey, Pennsylvania and Delaware, as well as the U.S. Virgin Islands) reversed the dismissal of claims under USERRA based on the airline’s failure to pay pilots and provide certain benefits during short-term military leave, while providing pay and benefits to pilots during bereavement and jury duty leave. The circuit court ruled that a jury could reasonably find that the airline’s jury service and/or bereavement benefits are comparable to the military leave at question based on factors such as the average duration (between 1-3days), the purpose (jury duty is a civic duty, and military service has a similar purpose), and whether the employee can control when they take the leave. The court remanded the case to a jury for consideration. For that reason, it remanded the case for jury consideration.
And in an opinion from February 2023 in Clarkson v. Alaska Airlines, Inc., the Ninth Circuit Court of Appeals (which includes California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii and Guam) held that the district court incorrectly granted summary judgment on USERRA class action pay claims by comparing all forms of military leaves, rather than just those that were short-term, with the asserted comparator non-military short-term leaves (in this case, jury duty, bereavement and sick leave). The Ninth Circuit ruled that, in order to determine comparability for USERRA purposes, it is better to compare the length of military leave taken by an employee than to consider all forms of military leaves (regardless if they are short or long) as a group. The parties in Clarkson settled the matter for $4.75 million dollars. The district court granted the airline’s motion for summary judgement, holding that military leaves as a whole were not comparable to other leaves based on frequency and duration. However, the circuit court ruled that, following Clarkson, it must assess the pilots’ claims by comparing their actual military leave against the comparator leaves. These decisions indicate that courts are examining closely whether different leaves are comparable when deciding if employees taking USERRA leaves are entitled to continue pay during military leaves. They will also examine the actual time taken by employees while on leave when comparing leaves.
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- Employers should also be aware that state laws can provide greater benefits to employees who are enlisting in military service or returning from it than what is required by federal law. New York State’s Military Leave Law, for example, allows employees returning from military service to request reinstatement over a longer period than USERRA. Employers should consult local laws to ensure full compliance with military leave requirements.
