- The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable;
- The period of service must not have exceeded five years;
- The person must not have been released from service under dishonorable or other punitive conditions; and
- The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), specifies the time limits by which a former employee must return to work or apply for reemployment. These are based on the duration of military service.
- Less than 31 days service: 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. If this is impossible or unreasonable, then as soon as possible.
- 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
- 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
- Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.
As long as these conditions are met, you must rehire the returning employee. If the returning employee does not apply for reemployment during these time limits, they do not automatically forfeit their rights to reemployment, but they become subject to the same rules the company would impose on anyone returning from any other kind of leave of absence with an unexcused delay.
Where Do I Place Rehired Employees?
- A returning employee must be "promptly reemployed" in the job they would have had if they had not left for military service. This may be the same or a higher position than the employee left, depending on what would have happened if the employee had not left for military service.
- If the returning employee is not qualified for the higher position, the company must make reasonable efforts to qualify him for that position.
- If the employee cannot be qualified for the higher position, even after reasonable efforts by the company to qualify him, he is to be rehired in the position he held on the day he started military service. If the military service was greater than 90 days, the returning employee may be reemployed in a "position of like seniority, status, and pay."
- If the returning employee can not be qualified for either of the positions above, he must be reemployed in the position that he is capable of performing that is the "nearest approximation".
The reemployment priority reflects what is called the "escalator clause". This requires that the returning employee actually step back onto the seniority escalator at the point theperson would have occupied if the person had remained continuously employed.
If more than one person has a claim to reemployment in the same position, the person who first held the position is given preference. The other person must be rehired into any other position of similar status and pay. This could occur when an employee goes on military service and the person you hire as a replacement for them later goes on military service as well.
Can I Require Proof?
An employer can request documentation from an employee absent for a period of military service greater than 30 days that their reemployment application is "timely" as described above; that they have not exceeded the five-year cumulative service limit; and that their separation for active duty was not under dishonorable conditions. If the returning employee cannot provide such documentation, the company must still reemploy him. The company may then contact military authorities to verify the service claims. If the person was not eligible for rehire, the company may immediately discharge him, but it cannot be retroactive.
There Are Exceptions
An individual does not have to be rehired if the company's circumstances have changed so much that reemployment would be "unreasonable or impossible". If the company has had major layoffs, for example, and the returning employee's entire department was closed, the company would not have to reemploy him.
Companies are also excused from retraining returning employees or making accommodations for individuals with service-connected disabilities when doing so would constitute "undue hardship" because of the difficulty or expense involved.
Further Protections
USERRA prohibits the termination of a reemployed worker without cause for as much as a year. The Act further prohibits discrimination based on past, current, or future military obligations of any employee. And companies are also prohibited from reprisals against anyone who files a complaint under the law or assists the complainant.
The burden of proof rests with the employer after the government has established a prima facie case.
Enforcement
The secretary of Labor is responsible for enforcing this law. The Veterans' Employment and Training Service (VETS) investigates all complaints and attempts to resolve them. A former employee may file a complaint with VETS or they may take direct legal action against their former employer.
Manage This Issue
- Develop and publish ahead of time a company policy on military leave of absence that is compliant with USERRA.
- Track the position an employee vacates to enter military service and all similar and related positions.
- Keep adequate records of all personnel actions, such as promotions, for all remaining employees in similar or related positions.
- Be prepared to reassign or discharge other competent employees to make space for returning employees, even if they need additional training.
First page > Business Management and War > Page 1, 2, 3
