This is the second of three posts regarding employment protections afforded to service members under The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq. (“USERRA”).
USERRA protects employees who are called away from their civilian jobs to perform military service. In our last post, we discussed the protections that USERRA provides against discrimination and retaliation related to employees’ obligations to perform military service. This post will cover another important protection in USERRA related to reemployment following military service.
USERRA requires employers to reemploy individuals when they return from military service in the same position they would have obtained had they been continuously employed. There are some unique requirements for both employers and employees under this part of USERRA. For employees, in order to be eligible for reemployment under USERRA, you must:
- Be absent to perform service in the uniformed services;
- Notify your employer in advance of your military service, to the extent possible;
- Not exceed five years of cumulative absences for military service with your current employer (note: not all types of service count toward the five year limit);
- Not be discharged under other than honorable conditions; and
- Make a timely application for reemployment or return to work in a timely manner following a discharge under honorable conditions.
The deadline to return to work or request reemployment is determined by your length of absence. If you are absent for less than 31 days, then you need to return to work or request reemployment the first business day after your release (with time allowance for you to return home). If you are absent for between 31 and 180 days, then you have 14 days to return to work or request reemployment. If you are absent for more than 180 days, you have 90 days to return to work. You also have up to two years to request reemployment if you are recovering from an injury sustained during your military service. There is no specific or formal requirement for how to request reemployment but it is best to either report to work in person or to make your request in writing. If you are absent for more than 31 days, your employer may ask you for documentation, to the extent such documentation exists, to show you’ve complied with the requirements noted above.
If you meet these conditions, your employer is required to reemploy you in the position that you would have been in had you never left, often referred to as the “escalator position”. For most employees, this will be the same position that they left but it could be a better or worse position depending on what happened while you were away. If you aren’t capable of performing the duties of the escalator position, the employer is required to reemploy you in a similar position with duties you are capable of performing. The employer is also required to make reasonable efforts to qualify you for the reemployment position, including providing reasonable accommodation for a disability.
The only way that an employer can lawfully refuse to reemploy a returning veteran is if the employee fails to comply with the requirements above, or in cases where the employer can establish that reemployment would be impossible or unreasonable under the circumstances or place an undue burden on them in certain situations. However, this is a very high standard to meet and in most situations employers won’t be excused from the requirement to reemploy a returning veteran. In addition to being reemployed, you are protected from termination, except for cause, for between 180 days and one year, depending on your length of service, to allow you to get back up to speed in your job.
If you returned from a period of military service and didn’t get your job back or were otherwise treated unfairly upon your return, you should contact an attorney to discuss how your rights may have been violated.
Our next post will cover what an employee can do to enforce their rights under USERRA.
