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Employees And Military Leave: Top 10 Points For Employers To Remember

The Uniformed Services Employment and Reemployment Rights Act ("USERRA") is perhaps the most expansive and employee-friendly federal employment statute, and one of the most commonly misunderstood. While it shares some similarities with the Family and Medical Leave Act ("FMLA"), USERRA - with its much looser employee obligations, restrictions on employer controls, and other employee-friendly aspects - truly is one-of-a-kind.

Employers that are unaware of USERRA's complexities and unique features can easily stumble in attempting to navigate their military leave obligations. Some of the aspects of the statute that may be most surprising for employers are outlined below, following a short summary of USERRA's essential provisions.

Basic Rights Under USERRA

USERRA protects employees from discrimination and adverse employment actions based on their military status and/or service obligations, and requires employers to provide employees with up to five years (cumulative) of unpaid leave for uniformed service over the duration of their employment.

Under USERRA, an employer must promptly reinstate an employee returning from military leave to the job he or she would have attained if not for the military absence, provided the employee:

• Was absent in order to perform service in the uniformed services;

• Provided the employer prior oral or written notice of the military leave;

• Has taken five years or less of cumulative military leave during his or her tenure with the employer;

• Has not have been separated from the military with a disqualifying discharge; and

• Timely reports back to work or applies for reemployment.

Top 10 Points To Keep In Mind

Given USERRA's many unique features, as well as the fact that it is strictly construed in favor of employees, it is vital for employers to have a clear understanding of their obligations and potential liabilities under the statute. The following are some of the most significant, and commonly misunderstood, provisions of USERRA:

1. USERRA Applies To All Employers And Protects Employees Even Before They Start Work.

Unlike most other federal employment laws, which apply only to employers with a minimum number of employees, USERRA applies to all employers, public and private, regardless of size. And, unlike the FMLA, under which employees become eligible for protected leave only after working one year and 1,250 hours, USERRA does not have any minimum hours requirement for employee eligibility. Indeed, USERRA protects job candidates from discrimination during the application process, before they have been hired or worked a single day.

2. Employees Do Not Need Their Employer's Permission Before Taking Military Leave.

Employees must provide their employer with prior written or oral notice of an upcoming military-related absence, unless notice is not possible or reasonable. But employees need not obtain approval of military leave, nor may an employer require that an employee provide a copy of his or her military orders before departing for a military-related absence. However, after a military leave period of more than 30 days, an employee may be required to provide formal documentation of military service to establish the employee's eligibility for reemployment under USERRA.

3. Protected Military Leave Includes Both Voluntary And Involuntary Military Service.

USERRA's protections apply to all "service in the uniformed services," expressly including "the performance of service on a voluntary or involuntary basis." 38 U.S.C., § 4303(13).

4. Many Types Of Military Service Are Exempt From The Cumulative Five-Year Limit.

There are several types of military service that do not count toward an employee's five-year cumulative limit on protected military service. For instance, most types of reserve component training are excluded. When calculating employees' cumulative protected military leave time, employers should be careful not to include absences that do not count toward the five-year limit.

5. Military Absences Are Entitled To "Most Favorable" Treatment.

USERRA requires employers to provide employees taking military leave with the most favorable conditions and benefits extended to employees on comparable non-military leaves of absence. For example, if an employer allows employees to accrue additional vacation during a non-military leave of absence (e.g., leave for jury duty, FMLA, or bereavement), it must also allow employees absent to perform military service to accrue additional vacation. Whether a type of non-military leave is "comparable" to military leave depends on a number of factors, including the duration of the absence, the purpose of the leave, and the ability to choose when to take the leave.

6. Absences For Travel To And From Military Service Are Protected Under USERRA.

Employees are entitled to be absent from their civilian jobs not only on the days during which they perform military service, but also on days during which they are traveling to and from military duty. USERRA protects employees' right to reasonable rest time, before and after performing military service, to ensure fitness for military duty and for returning to a civilian job.

7. Returning Military Employees May Be Protected From Termination Without Cause.

One of USERRA's unique features is that employees returning from military leave exceeding 30 days enjoy temporary protection from termination without "cause." An employee who is reemployed after a military leave of between 31 and 180 days may be terminated only for cause during the 180-day period after his or her return to work. Employees on military absences longer than 180 days are protected from discharge, except for cause, for a full year after their return to work. 38 U.S.C., § 4316(c).

"Cause," for these purposes, may include misconduct as well as other legitimate, nondiscriminatory factors (e.g., application of a bona fide seniority system in a layoff situation). If the cause for termination is misconduct, the employer must prove that discharge was a reasonable response to the misconduct, and that the employee had notice that the conduct was impermissible. 20 C.F.R. 1002.248.

8. No Statute Of Limitations On USERRA Claims.

USERRA has no statute of limitations for claims arising after October 10, 2008 (some claims arising on or after October 10, 2004 also may remain forever timely), and expressly prohibits the application of state statutes of limitations.

9. Liquidated Damages For Intentional Violations.

An employee who successfully proves a USERRA violation may receive back pay and lost benefits, which may be doubled for willful violations. A USERRA violation is willful if the employer knowingly or recklessly disregarded the law. A successful plaintiff may also be awarded attorneys' fees and court costs incurred in pursuing his or her claim. (However, an unsuccessful plaintiff cannot be required to cover the employer's legal fees or court costs).

10. USERRA Serves As A Floor, Not A Ceiling.

Some states may provide additional employment rights for service members beyond those established by USERRA. Employers in all states must comply with USERRA as well as any more generous military leave obligations under state law.

Recommendations For Employers

Employers should carefully consider, in consultation with counsel, all of their leave policies and the requirements of USERRA to understand how employees must be treated differently in connection with military leaves. Employers also should consider surveying and training managers who administer military leave policies, to help ensure their actual practices are consistent with their obligations under USERRA.

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Please feel free to contact us if you have any questions regarding your organization's responsibilities under USERRA or any other state or federal leave laws. Our employment attorneys have a wealth of experience in these areas and would be happy to help.