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USERRA: Navigating Uncharted Legal Territory
BY JIM BARBER, CP

Our nation in the last few months has experienced the largest military call-up in over a decade. As military deployments end and service members return home, they and employers alike are confronted with questions that accompany these returns. Understanding the Uniformed Services Employment and Reemployment Rights Act (USERRA), Chapter 43 of Title 38, U. S. Code, as passed by Congress in October 1994 answers these questions and eases the reemployment process. USERRA prohibits employment discrimination based on military service, articulates the rights, benefits and protections afforded to service members while on military leave and upon return from military leave, and governs the reemployment of service members upon completion of military service. USERRA also provides its own enforcement procedures to ensure compliance.

Utah State Law Provides More Extensive Rights
Familiarity with USERRA is essential, but it is also necessary to be aware of the military leave laws of each state in which an employer operates. In Utah such laws are found in Chapter 39 of the Utah Code. Although not required under USERRRA, State of Utah employees are given fifteen (15) days paid military leave per year, in addition to annual vacation leave and a violation of Utah;s reemployment rights could also be punishable as a misdemeanor. USERRA does not restrict any state law more beneficial than rights provided to the returning service member under federal law. However, USERRA does supersede any state law, which attempts to reduce, restrict or eliminate rights or benefits provided under USERRA.

USERRA Navigating Uncharted Legal Territory
Since the Veteran;s Reemployment Rights Act (VRR) was replaced by USERRA few courts have decided cases using USERRA. USERRA case decisions commonly rely on VRR rulings and legislative intent. There are, however, some cases that help navigate USERRA;s uncharted legal territory. Lapine v. Wellesley, 304 F.3d 90 (1st Cir. 2002) offers an analysis of legislative intent and Rogers v. City of San Antonio, Texas, 211 F.Supp.2d 829 (W.D. Tex. 2002) reviews VRR case history and current application of USERRA.

Using an abundance of caution, the court in Rogers, supra on March 24, 2003 issued an Order Granting Motion for Certification Under 28 U.S.C. § 1292(b), 2003 WL 1571550 (W.D. Tex.) allowing the parties to appeal two specific items to the Fifth Circuit Court of Appeals, before proceeding further. On May 2, 2003, the Petition for Permission to Appeal was filed. Said Petition was granted by the 5th Circuit court of appeals on May 27, 2003, all briefs have recently been filed and this matter is currently under consideration by the court. As of the printing of this paper application of USERRA by the courts seems to remain unclear.

Employee – Service Members
The terms of USERRA are broad, applying to anyone in the uniformed services whether voluntary or involuntary who was employed in any non-temporary position even for only one day prior to being called up.

“Service” in the uniformed services is defined as the performance of duty on a voluntary or involuntary basis in a uniformed service, including active duty, active duty for training, initial active duty for training, inactive duty for training, full-time National Guard duty, absence from work for an examination to determine an individual;s fitness for any of the named types of duty, funeral honors duty performed by National Guard or reserve members, duty performed by intermittent disaster response personnel for the Public Health Service, and approved training to prepare for such service.

“Uniformed services” consist of the United States Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or national emergency. Part time, full time and probationary employees are protected under USERRA.

Employers – Public & Private
USERRA applies to all public and private employers, and their successors, regardless of size or location in the world. USERRA does not require the employer to be involved in interstate commerce or to employ a minimum number of employees to apply. The employer must grant an employee leave to fulfill their military obligations whether the employee;s service is voluntary or involuntary. Employers are prohibited from interfering with the frequency or length of military leave taken by its employees.

Invoking Protected Rights Procedures by Service Member
A service member is entitled to rights furnished by USERRA provided that the service member meets the criteria outlined in Table 1.

Advance Notice to the Employer
The service member or an appropriate military officer must provide advance written or verbal notice to the employer of all military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. The law requires “advance” notice, but does not specifically address how far in advance notice must be given.

Maximum Length of Military Leave
The cumulative leave of absence from employment for one employer that causes a service member to be absent from a position of employment may not exceed five years. Normally leaves for service obligations will be cumulatively counted in the computation of the five-year period, however there are eight categories of exceptions that permit the five-year period to be extended. Those categories are listed in Table 2.

Release from Military Service
Notice of Return to Employer & Submitting a Reemployment Application
A service member returning from service must timely notify the employer of their intent to return to work. A service member;s failure to submit an application for reemployment within the time periods set forth by USERRA, will subject the service member to the employer;s established policy governing unexcused absences, which may be deemed by the employer, without discrimination, as a voluntary termination of employment by the service member with the employer. Timely application for reemployment is based upon the service members; length of military service (See Table 3).

Notably there is no specific form for the application, however the service member should notify their employer in writing that the service member is ready to return to work.

Deadlines for application for reemployment may be extended up to two years for a service member who is hospitalized or convalescing from an injury that occurred or was aggravated during military service. A deadline will be extended by the length necessary to accommodate the injured service member if the time of the service member;s recovery will take longer than two years, if due to circumstances beyond the service members; control.

Waiver of Reemployment Rights
A service member may not waive their USERRA rights to reemployment before or during their military service. The USERRA right to reemployment does not mature until the service member has returned from the period of service. Thus, any service member;s USERRA rights that have not matured cannot be waived. The intent of USERRA is to keep the service member;s options open until the service member returns to civilian life.

Reemploying Returning Service Member;s Positions
A returning service member with less than 91 days military service is entitled to return to the position in which the service member was employed or would have been employed if their employment had not been interrupted.

A returning service member whose military service was more than 90 days is entitled to return to the position in which the service member was employed or would have been employed, or a position of like seniority, status, and pay.

Seniority Rights
Re-employed service members are entitled to the seniority and all rights and benefits based on seniority they would have received with reasonable certainty had the service member remained continuously employed. A right or benefit is considered seniority based if it accrues or is determined by length of service.

Rights not based on Seniority
Service members called up must be treated as if they were on a leave of absence. While absent the service member must be allowed to participate in any rights and benefits not based on seniority that are available to employees on non-military leaves of absence, whether such leave is paid or unpaid. If the employer has several types of leaves, the service member is entitled to the most favorable treatment among all of the employers; comparable leaves.

Training & Retraining
USERRA requires that employers make reasonable efforts to allow returning service members to refresh and upgrade their skills to qualify for reemployment in the position they would have held if the service member had not been called to military service.

Reemployment Not Required
USERRA provides that reemployment is not required under certain circumstances. Those exceptions are stated in Table 4.

These limited exceptions will be narrowly construed in favor of the returning service member and the burden of proof concerning an exception will be on the employer.

Termination of Service Member after Reemployment
Any service member Re-employed may only be terminated for cause during a specific period of time after reemployment. This period of protection is based upon the length of military service (see Table 5).

“At Will Employment”
Returning service members cannot be terminated, except for cause, for a specified period of time, even if they were at-will employees before they were called up for military service.

USERRA & Collective Bargaining Agreements
USERRA supersedes any collective bargaining agreement that decreases, restricts or eradicates any right or benefit provided under USERRA. See: Rogers, supra.

Disabilities Incurred or Aggravated while in Military Service
USERRA provides a three (3)-part reemployment procedure for service members with disabilities incurred or aggravated while in military service (See Table 6).

Protection from Discrimination and Retaliation
USERRA prohibits an employer from discriminating in employment or taking any adverse employment action against a service member because of their past, present or future military obligations. This ban is broad, extending to most areas of employment including hiring, promotion, reemployment, termination and benefits. The law protects from discrimination past members, current members and persons who apply to be a member of any of the branches of the uniformed services. Once a prima facie case is established the burden of proof is clearly on the employer.

Employers are prohibited from retaliating against anyone who files a complaint under the law, who testifies, assists or otherwise participates in an investigation or proceeding under the law, or who exercises any right provided under the law, whether or not the person has performed military service.

Benefits
Healthcare Benefits
A governmental healthcare program commonly known as Champus or TRICARE, automatically covers service members called up for a period of service of at least 31 days. However, many service members may wish to continue their employer provided healthcare benefits, especially for their dependents.

USERRA provides that a service member on military leave has the right to elect continuation of health benefits coverage under COBRA-like terms if the service member was a participant in the employers health benefits plan immediately before the service members call up. This requirement, unlike COBRA, applies to all health benefits plans, not just group plans. Unlike COBRA, USERRA applies to all employers regardless of size.

Health benefits coverage under USERRA continues for the lesser of 18 months from when military leave commences or a period ending the day after the service member fails to return to work as provided by USERRA after having been discharged from military service. When a service member;s military leave is less than 31 days, the service member cannot be required to pay more than the service member;s usual share of the health benefits premium. If the employer;s policy permits employees to pay only their share of the health benefits premium while on other types of leave, then the service member on military leave is entitled to the same benefit. However in the absence of such a policy, after 31 days, the service member wishing to continue health benefits coverage while on military leave can be required to pay no more than 102 percent of the premium cost to maintain the coverage. If a service member chooses not to maintain health benefits coverage while on military leave, the service member may seek reinstatement of coverage on return to work with no plan waiting periods or exclusions.

USERRA & FMLA
Employers must count the months and hours that service members would have worked if they had not been serving military service towards the service member;s FMLA eligibility. Simply put the months and hours the service member would have worked, but for the service members military service, must be combined with the months employed and the hours actually worked to determine if the employee has completed the 12 months and 1,250 hours of work required for eligibility for leave under the FMLA.

Pension & Retirement Benefit Plans
USERRA provides that a “pension plan” must comply with the requirements of reemployment law and would be any plan providing retirement income to employees to termination of employment or later. Pension plans tied to seniority are given separate, detailed treatment under USERRA (See Table 7).

Repayment of service member;s contributions can be made over three times the period of military service but no longer than five years.

Defined benefit plans, defined contribution plans and profit sharing plans that are retirement plans are covered by USERRA.

Multi – employer Plans
In a multi-employer defined contribution pension plan, the sponsor maintaining the plan may allocate the liability of the plan for pension benefits accrued by persons absent for military service. If no cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the person before the period of military service or, if the employer is no longer functional, to the overall plan. Within 7 Days after reemployment, an employer who participates in a multi-employer plan must provide written notice to the plan administrator of the person;s reemployment.

Vacation
Under USERRA, service members called up are entitled to all non-seniority based benefits that are available to other employees who take non-military leaves of absence. Service members continue to accrue vacation; sick time and remain eligible for such benefits as company bonuses and life insurance while on military leave, only if employees on non-military leave are entitled. Employers must allow service members at their request to use any vacation the service member had accrued before the beginning of the service members military leave instead of unpaid leave. However, employers may not force service members to use vacation time while performing military service. Vacation was recently discussed in Rogers, supra.

Enforcement
A great place to start is with the Ombudsmen Services Program, which provides information, counseling and informal mediation of issues relating to compliance with USERRA. You may contact the program by visiting their website at www.esgr.org/employers/thelaw.asp.

On a more formal level, the Department of Labor is the enforcement authority for USERRA. Veterans; Employment and Training Service (VETS) of the Department of Labor assist service members with issues involving USERRA. VETS maintain a USERRA adviser on its web site, www.dol.gov/vets, to answer the most often asked questions. The law gives VETS right of access to examine and duplicate employer documents and interview persons with information it considers relevant to an investigation. The law authorizes VETS to subpoena attendance and testimony of witnesses and production of documents relating to any matter under investigation.

If a complaint is not successfully resolved by VETS the non-federal employee complainant may request their complaint be submitted to the U.S. Attorney General for possible court action. When the U.S. Attorney General is satisfied that a complaint is meritorious, the U.S. Attorney General may file a court action on the complainant;s behalf. Complaints of federal employee;s are submitted to the Office of Special Counsel, www.osc.gov/userra.htm. If the Special Counsel believes there is merit to the complaint, the OSC will file before the Merit Systems Protect Board and appear on behalf of the complainant.

Service members continue to have the option to privately file court actions. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the U.S. Attorney General, or have been refused representation by the U.S. Attorney General. Damages can include double award of back pay or lost benefits in cases where violations are found to be willful. The law, at the court’s discretion, allows for awarding attorney fees, expert witness fees and other litigation expenses to successful plaintiffs who retain private counsel. Further the law prohibits charging court fees or costs against anyone who brings suit. Only persons claiming rights under the law may bring lawsuits.

Jury Trial
The court in Spratt v. Guardian Automotive Products, Inc., 997 F. Supp 1138, (N.D. Indiana 1998), held that USERRA, which now provides for liquidated damages, also provides the right to a jury trial under the Seventh Amendment.

Resources:
Several good resources exist. For example, the best continually updated, USERRA information website that I have found is www.roa.org. Once on the site, click on “Legislative Affairs” then on “Law Review Archive” at the bottom of the drop-down menu.

Jim Barber is an accomplished author with articles published in various legal publications and journals. .


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