To:         Employers

From:     Peter D. Carmen

          Jacqueline B. Jones

Date:      September 19, 2001

Re:         Uniformed Services Employment and Reemployment Rights Act of 1994

On September 14, 2001, as a result of last week’s tragic attacks on our country, President Bush signed an Executive Order calling about 35,000 Army and Air Force reservists into active duty.  This directive not only affects the reservists, but also their employers.  I am writing to provide you with a summary of important information about the federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301-4333 ("USERRA"), and the New York Military Law,  in the event that any of your employees are reservists who are called to active duty.  These statutes include several exceptions and limitations, however, that may apply to unique circumstances in your workplace, but which space does not permit to be addressed here; please call us if you have specific questions about your particular employee situations in your workplace.

USERRA and the Military Law overlap in most provisions, so we will refer to them collectively as USERRA except when referring to important distinctions.  The law has two main provisions that affect employers:  (1) it prohibits both discrimination against any employee who is a member of a uniformed service and retaliation against employees who take action to enforce the law (either as a reservist or a witness); and (2) it places affirmative obligations upon employers to reinstate (or "reemploy") certain reservists to their positions following their separation from active duty, and provides some protections and benefits for these employees.

1.  Non-discrimination against employees who serve in the uniformed services.

USERRA prohibits discrimination against any employee who:  (i) is a member of a uniformed service; (ii) applies to be a member of a uniformed service; (iii) performs, or has performed, a uniformed service; or (iv) has an obligation to perform a uniformed service.  These individuals are protected from discrimination in their initial employment, reemployment, retention in employment, promotion or any benefit of employment on the basis of their military service.  If the employee files a charge of discrimination based upon

an adverse employment action, the courts will look to determine whether the employee’s military service was a "motivating factor" in the adverse employment decision.

In addition to outlawing discrimination based upon uniformed service, the statute also prohibits retaliation against any employee -- even an employee who is not the reservist -- who has complained about, testified or otherwise made a statement in a legal proceeding under USERRA, or who has assisted or participated in an investigation for a violation of USERRA.

Significantly, unlike other anti-discrimination statutes, USERRA applies to all employers in the United States; there is no distinction among employers based upon the company’s number of employees or the impact upon interstate commerce.

2.  Reemployment rights of employees who serve in the uniformed services.

The statute places affirmative obligations upon employers to reinstate employees who serve in the uniformed services following their completion of active military duty.  In fact, the statute affords additional job protection to these employees by prohibiting at-will discharges for a certain period following their reinstatement.

An employee is entitled to reinstatement following active duty provided that he or she has given the employer notice (written or verbal) of the duty before commencing the military service.  The employee is excused from providing the notice, however, if the employee was unable to provide it due to military necessity or if, under all of the relevant circumstances, providing the notice was impossible or unreasonable.  The Department of Defense will determine whether an employee could not give a notice due to military necessity, and the Department’s determination of military necessity is final -- the employer may not dispute or ignore its determination.

An employee is entitled to reinstatement following active duty to the position he or she would have held during continuous employment, so long as the employee’s cumulative length of absence for military service, including all previous absences due to military

service, does not exceed five years.^[1]  Once the employee has been absent from work for a total of five years for military service, he or she is no longer entitled to reinstatement following separation from active duty.  In calculating the five year absence, the employer may not count time that the employee spent completing his or her initial period of obligated service.  While on active duty, the employee may choose to use any vacation, annual or similar leave time with pay before the five year clock begins to run -- that is to say, the vacation or other leave period may not be counted toward the five year maximum.  An employer, however, may not require any employee to use paid vacation, annual, or similar leave period during the leave of absence for active duty (this is in contrast to the Family and Medical Leave Act, under which an employer may compel an employee to use vacation or other leave concurrently with the FMLA leave).

An employee is not entitled to any of the reemployment rights or protections of USERRA if his or her uniformed service terminates due to a dishonorable or bad conduct discharge, or a separation from duty for reasons other than honorable conditions.  Additionally, an employer is not required to reinstate an employee following active duty if the employer’s circumstances have changed during the employee’s absence such that reemployment would be impossible or unreasonable.  The statute also allows an "undue hardship" exception to reinstatement in the case of employees who become disabled, or aggravate a disability, during active duty.  An employee is not entitled to reinstatement if the employee would not have remained employed had he or she stayed in continuous service with the employer; this exception applies predominately to reductions in the workforce (layoffs) that affect the employee’s position.  Finally, an employer is not required to reinstate an employee if the employee’s position was established for only  a temporary period and there was no reasonable expectation that the position would continue indefinitely or for a significant period.

An employee who seeks reinstatement following active duty must notify the employer of his or her intent to return to work.  Under USERRA, the time period within which the employee must notify the employer depends upon the length of the employee’s absence.^[2]  If the employee’s active duty was less than 30 days, then the employee must report to the employer by the beginning of the first regularly scheduled work period following the completion of active duty.  The time period for the employee to report to the employer does not begin to run, however, until eight hours after a period allowing for the safe transportation of the employee from active duty to the employee’s residence.  If the employee is unable to report to the employer within this time period through no fault of the employee, then the employee must report to the employer "as soon as possible" after the expiration of the eight hour period following transportation home.

If the employee seeks to return to work following active duty for a period of more than 30 days but less than 181 days, the employee must submit an application for reemployment to the employer within fourteen days after completing active duty; if submitting the application within fourteen days is impossible or unreasonable through no fault of the employee, then the employee must submit the application on the next full calendar day when submission of the application becomes possible.

If the employee seeks to return to work following a period of active duty exceeding 180 days, the employee must submit an application for re-employment to the employer not later than ninety days after the completion of active duty.

If an employee is hospitalized for, or convalescing from, an illness or injury incurred or aggravated during the active duty, then the employee must report his or her intent to return to work at the end of the recovery period.  The recovery period may not exceed two years; if the employee remains unable to return to work due to illness or injury for more than two years, then the employer need not retain a position for the employee.  The employer must extend the two year period to accommodate any circumstances which make reporting within that period impossible or unreasonable.

When an employee submits an application for reemployment under USERRA, the employer may require documentation to confirm that the application is timely, that the employee has not exceeded the five-year service limitation, and that the employee has not been disqualified for re-employment due to dishonorable discharge or a separation from active duty for reasons other than honorable conditions.  An employer may not refuse re-employment, however, if the employee is unable to provide the proper documentation because it does not exist or is not readily available when the employer requests it.  Instead, the employer must reinstate the employee subject to the employee’s provision of the documents.  If documentation subsequently becomes available that establishes that the employee does not meet the criteria for reinstatement, then the employer may discharge the employee.  An employer, of course, may not delay or attempt to deny reinstatement by demanding documentation that does not exist or is not readily available.

3.  An employee’s rights at the workplace following active duty.

An employee who is reemployed under USERRA is entitled to the seniority, and all rights and benefits determined by seniority, that the employee had on the date that he or she left employment for active duty, plus any additional seniority, rights and benefits that the employee would have obtained if the employee had remained continuously employed.  Subject to some exceptions (explained below), an employee who is absent from work due to active duty must be deemed to be on a leave of absence while performing the active duty.  Additionally, the employee is entitled to receive all rights and benefits that the employer provides to employees having similar seniority, status and pay who are on a leave of absence; an employer cannot discriminate in the application of benefits for a leave of absence simply because the leave is due to military duty.  Upon reemployment, however, an employee is not entitled to any benefits to which he or she would not otherwise have received if the employee had remained continuously employed instead of performing military duty.

An employer need not provide USERRA protection or benefits to an employee who provides a written notice of intent not to return to work following active duty.  An employer, however, should proceed with caution before accepting an employee’s notice of intent not to return to work.  The employer will have the burden to prove that the employee "knowingly provided clear written notice of intent not to return . . . and, in doing so, was aware of the specific rights and benefits to be lost" under USERRA.  Therefore, before accepting the resignation of an employee who is on active duty, the employer should provide the employee with a written explanation of all of the rights that he or she will be forfeiting by declining to return to work.

Perhaps the most significant aspect of USERRA is its prohibition against at-will discharge of protected employees following their reemployment.  The statute prohibits an employer from discharging any employee who is protected by USERRA "except for cause."  Under the Military Law, the prohibition against at-will discharge lasts for one year.  An employee who is absent for less than thirty days is not entitled to protection from at-will employment, under the federal law, although the state counterpart (the Military Law) does not have a thirty-day limitation.

4.  Health benefits of reinstated employees.^[3]

If an employee (or the employee’s dependents) has coverage under a health plan offered in connection with employment, the health plan must provide that the employee may elect to continue health insurance coverage for an eighteen month period beginning on the date of the employee’s absence, except that the employer may discontinue the coverage if the employee fails to apply for, or return to, employment within the time period required by the statute.  If an employee elects to continue health coverage under USERRA, the employer may require the employee to pay 102% of the full premium under the plan, except that an employee who performs active duty for less than thirty-one days may not be required to pay more than the employee’s share (if any) of the coverage.

If an employee’s health insurance coverage is discontinued due to active duty, then the coverage must be immediately reinstated upon the employee’s return to work, and no exclusion or waiting period may be imposed (except for certain circumstances in which the employee seeks coverage for an illness or injury that occurred, or was aggravated, during active duty).

5.  Enforcement of USERRA.

An employee who believes that his or her employer has violated USERRA may file an administrative complaint with the United States Department of Labor, or the employee may file a private lawsuit in federal court.^[4]  The Department of Labor will attempt to resolve the complaint following an administrative filing, or the Department may refer the case to the United States Attorney General for handling.

The remedies for violation of USERRA are serious.  The court may issue any order necessary to compel the employer to comply with USERRA, and the court may award the aggrieved employee compensation for any loss of wages or benefits that the employee should have received under the statute.  Additionally, the court may award "liquidated damages" in an amount equal to all compensatory damages that the employee receives, thus amounting essentially to "double" damages.  The court may also award the aggrieved employee recovery of attorney’s fees and costs if the employee retained private counsel to pursue the action against the employer.