USERRA litigation is quickly becoming an emerging issue in the employment arena.  Whether returning from combat or other military service, increasing numbers of service members are actively protecting their employment rights under the federal law providing for reemployment rights of veterans and returning service members-the Uniformed Services Employment and Reemployment Rights Act (USERRA). The law allows an employee to enforce his or her rights by filing a court action directly, without filing a complaint with the U.S. Department of Labor.  A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for “willful” violations.

USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country’s uniformed services. USERRA covers virtually every individual in the country who serves in or has served in the uniformed services and applies to all employers in the public and private sectors, including Federal employers. The law seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA also provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. 

Under USERRA, an employee who must leave civilian work for military service is entitled to reinstatement so long as the employee has, if possible, given advance written or verbal notice of the absence for service; if the cumulative length of absence for current or past military service has not exceeded five years (with certain limited exceptions); and if the person timely reports to work or submits an application for reemployment once his or her military service concludes.  Reinstatement rights do not apply to employees who are absent without leave from their military duties, or those who have not been honorably discharged from military service.

The timeliness of an employee’s reporting to work or reapplying for work following military service depends upon how long he or she served with the military.   If the employee has served more than 30 but less than 181 days, he or she must submit an application for reemployment within 14 days after completing service.  If the period of service has exceeded 180 days, the employee has 90 days after the completion of service within which to apply for reemployment.  These time periods may be extended if an employee is hospitalized or convalescing from illness or injury that military service caused or aggravated.  This recovery period may extend the reapplication deadlines by as much as two years.  An employee who fails to timely report for employment or reemployment does not automatically forfeit rights and benefits under USERRA, but is subject to the employer’s rules, policies or practices governing absenteeism. 

Generally, upon applying for reemployment, a person whose military service lasted 91 days or more, must be promptly reemployed in the following order of priority:

1. In the job the person would have held had the person remained continuously employed, or a position of equivalent seniority, status, and pay so long as the person is qualified for the job, or can become qualified after reasonable efforts by the employer to qualify the person; or,
2. If the employee cannot become qualified for the position in (1), in the employee’s pre-service position so long as the person is qualified for the job or could become qualified after reasonable efforts by the employer; or
3. If the employee cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the person is qualified, with full seniority.

See 20 CFR Part 1002.197.

The reemployment position with the highest priority in the reemployment schemes reflects the “escalator” principle that has been a key concept in federal veterans’ reemployment legislation.  The escalator principle applies to all returning service members regardless of their length of service and requires that each returning service member actually step back onto the seniority “escalator” at the point the person would have occupied if the person had remained consistently employed.  Thus, the position may not be the same job the person previously held. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to the promotion upon reinstatement.

On the other hand, the position could be one of lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. The law contemplates changes in the employer’s business circumstances.  Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction in force that would have included the person, upon application of the order of priority set forth above, would be an example.  38 U.S.C. § 4312 (d) (1) (A). Moreover, courts have held in USERRA cases that an employer’s decisions in connection with a reduction in force are entitled to deference. Absent some proof of discrimination, a court cannot second-guess a company’s decision to eliminate a position or undergo a reduction in force.  Snowman v. IMCO Management Partnership, 347 F.Supp.2d 338 (N.D. Tex. 2004).   Thus, a non-pretextual, permissible reason for termination or adverse employment action notwithstanding military service is an affirmative defense against a USERRA discrimination claim.  Tagget v. Eaton Corp., Case No. 00-10016-BC, 2001 U.S. Dist. LEXIS 18389, *12 (E.D. Mich. 2001). 

In sum, employers should simply treat similarly situated employees the same without regard to military services when making employment decisions, and promptly notify individuals on military leave of changes in the employer’s circumstances that affect the individuals’ employment.  The notice should simply: reiterate the federal required notice of employees’ USERRA rights; set forth changes in the business circumstances affecting the individual, and the consequential result of those changes on the individual; and explain the options/benefits available to the employee in light of the changes.  Employers should also establish a procedure for documenting a service member’s departure.  The employer’s checklist might include getting a copy of the employee’s service orders, checking beneficiary designation forms to make sure they are correct before the employee leaves for service, and explaining to the employee to whom he or she should report upon applying for reinstatement once military service has ended.  Employers should also establish a similar procedure/checklist for dealing with service member’s returning from duty, for the sake of fairness and consistency.  This checklist might include getting a copy of the employee’s discharge orders, obtaining fitness for duty examinations if injured, recalculating and applying benefits given to others during the service member’s leave, and training for the reemployed position.