Serving their country and their communities: the Uniformed Services Employment and Reemployment Rights Act of 1994.

Hundreds of thousands of "citizen soldiers" have been called to active duty in the military since the events of September 11, 2001. These citizen soldiers leave their families and jobs behind, often leaving with questions about their future employment security when they return, as well as benefits, such as health insurance and their pensions, while they are away. (1) In addition, many employers find themselves wondering what responsibilities they owe the departing employees during their absence and upon return to civilian life. Not surprisingly, the law enforcement community presently is dealing quite often with these issues given the significant representation of prior military in law enforcement. Given the impact continued military service can have on the personal and professional lives of law enforcement personnel, it is important that both law enforcement employers and employees who leave to perform military duty have an understanding of the rights and obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). (2)

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This article provides a general overview of the background and purpose behind USERRA in addition to the rights and obligations of the employee and employer and the prohibition against discrimination based on active duty. Issues addressed include the right to reemployment, the impact active duty has on benefits, such as health insurance and pensions, and notice requirements imposed on both employers and employees. The article is intended only as a general overview of key aspects of USERRA. For more specific information, the reader may want to refer to the U.S. Department of Labor (DOL) at http://www.dol.gov. In this Web site, the DOL's Veterans' Employment and Training Services (VETS) has published extensive information regarding USERRA, including proposed regulations interpreting USERRA, published on September 20, 2004. (3)

BACKGROUND AND SCOPE

USERRA was enacted by Congress in 1994 for the purpose of prohibiting discrimination against individuals because of their voluntary or involuntary military service and encouraging military service by lessening the disadvantages associated with such service when a civilian career is impacted. (4) USERRA has broad application, covering nearly all employees, including part-time and probationary employees, as well as all U.S. employers, whether in the private or public sector and regardless of size. (5) The term "employer" also includes individuals. (6) This has been interpreted as allowing an individual seeking enforcement of USERRA to pursue an action not just against the employing entity but also against individuals who have authority within the employing entity regarding the employment decision. (7)

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Congress also provided a comprehensive definition of "uniformed services." This is defined to include employees who serve in the Army, Navy, Air Force, Marine Corps, Coast Guard, as well as all Reserve components of each, the Army or Air National Guard, and the Commissioned Corps of the Public Health Service. In addition, the president has the authority to identify any other category of persons as covered by USERRA during time of war or emergency.

Congress also clarified the type of "uniform service" which triggers the rights and responsibilities provided for in USERRA. (8) Included within the covered service is duty performed, regardless of whether it is voluntary or involuntary, while in active duty, active duty for training, as well as inactive duty training, and full-time National Guard duty. In addition, an employee's absence from work to assess the employee's fitness to take part in any of the above activities also is covered by USERRA. In 2002, Congress expanded USERRA's reach to include public service performed in a crisis situation by including within the definition of "uniform service" duty performed by intermittent disaster personnel for the Public Health Service, as well as time for taking part in training for such activities. Funeral honor duty performed by National Guard or reserve members also is included.

In addition, to be eligible for reemployment, the uniform service must be under the authority of the military. In other words, the absences must be connected to actual military service. For example, in Leisek v. Brightwood Corp., (9) John Leisek, a former employee of a company and a member of the National Guard, sued after he was denied reemployment following his absence to participate in National Guard activities. The Court concluded that he had no right to be reemployed as he was not engaged in "uniformed service" at the time of his absence from his employer. Prior to his absence for the guard, Leisek indicated that he would be engaged in Guard duties at various locations and various dates and asked for time off accordingly. He eventually did receive military orders for some of the dates and locations, but not for all of them. The Court held that he was not serving in the "uniformed services" as to those dates for which he was not under orders to serve.

While USERRA applies to all employers, the units comprising the Ready Reserve (10) by statute must be screened to ensure that there are not large numbers of members with "critical civilian skills," and that there are no members who, if mobilized, would "... result in extreme ... community hardship." (11)

PROHIBITION ON DISCRIMINATION

USERRA contains an antidiscrimination provision designed to protect those who have served, as well as those who remain in the military in some capacity, from discrimination. The prohibition against discrimination protects not only on-board employees but applicants for employers as well. An employer is prohibited from denying any person initial employment, reemployment, retention in employment, promotion or any benefit of employment based on an individual's membership or application for membership and the activities associated therewith, in the uniformed services. (12) The statute also prohibits retaliation against an individual for seeking enforcement of any right secured under USERRA. (13)

Employer discrimination is established by showing the applicant or employee's military-based activity, whether in the form of an application for membership, performance of service or some obligation of service, was a "motivating factor" in the employer's decision as opposed to the sole factor. (14) The roadmap for a lawsuit under USERRA calls for the initial burden to be on the plaintiff, who must provide sufficient information to support an allegation of discrimination or retaliation on the basis of military service. (15) The employer then may demonstrate that it would have taken the action anyway, without regard to anything protected by USERRA. If the employer successfully demonstrates this nonprohibited reason for the employment action, the plaintiff must then establish that the reason offered really is pretextual and the employment action actually was based on military service. This same litigation roadmap is set forth in USERRA for litigating claims of retaliation. (16)

ELIGIBILITY FOR REEMPLOYMENT

USERRA extends reemployment rights to most employees (17) who have been absent from their positions because of "service in the uniformed services." To be eligible for reemployment, the service member must meet the following basic requirements:

* notice must have been given to the employer of service in the uniformed services;

* cumulative period of service must not have exceeded 5 years, unless an exception to the 5-year rule applies;

* departure from the uniformed services was not dishonorable or under other punitive conditions; and

* the requestor must have submitted a timely request for reemployment and reported back to their civilian employer in a timely manner.

USERRA does not require the employer to return employees to the exact same position that they occupied before leaving for military service. The manner that the employer places the employees back into the workforce is structured according to the amount of time the employees were on military leave. If the employees were absent for 1 to 90 days, they must be promptly reemployed in the position that they would have occupied had they remained in continuous employment, provided they are qualified for that position or can become qualified after a relatively short training period. (18) If the employees are not qualified for that position, then the employees must be placed in a position closest to the position described above for which the employees are able to perform. (19) In other words, the deployed reservist employees progress as if they had remained in continuous employment.

For employees on military leave for 91 days or more, USERRA provides a hierarchy for the employer to follow. The employer must first consider placement in the job the employees would have held had they remained continuously employed, provided the employees are qualified for a position of like seniority and pay, or if not qualified for such a position, in the position the employees occupied before deployment or one of like seniority and pay. (20) If the employees are not qualified to perform any of the above positions, then the employer must place the employees in another position of lesser status and pay, but it must be closest to the above-described positions as possible. (21) The employer also must provide reasonable opportunities for training to qualify for the higher positions unless to do so would pose an undue hardship to the employer. (22)

Time Limits on Service

To qualify for reemployment, the cumulative service generally cannot exceed 5 years. However, exceptions to this 5-year prohibition exist. These exceptions include:

* situations in which the service member cannot obtain a release through no fault of their own;

* involuntary service during a domestic emergency or national security crisis;

* service pursuant to an order to remain on active duty because of war or national emergency;

* active duty by volunteers supporting "operational missions" for which members of the Select Reserve have been ordered to active duty without their consent;

* service by volunteers in support of a "critical mission";

* federal service by members of the National Guard called into service to suppress insurrection; and

* service connected to training. (23)

USERRA and Disabled Veterans

USERRA provides for enhanced protections for disabled veterans. When seeking reemployment, employers are required to undertake reasonable efforts to accommodate their disabilities so they can be placed in a position they would have occupied had they remained in continuous employment. (24) If an employee, despite the efforts to provide training, is unable to perform the functions required of that position, then the employer must place the employee in a position of equivalent seniority, status and pay, provided the employee is qualified to perform that job. If that fails, then the employee must be placed in a position as close to the above as the employee may be able to perform. (25)

Time Limits for Reporting Back to Civilian Employment

Once the deployment ends, USERRA provides a timetable for employees to report back to work. (26) If the service was less than 30 days or for purposes of taking a fitness exam, the employees must report back to work no later than the first regularly scheduled workday that would fall 8 hours after the end of the calendar day. This may be delayed if circumstances arise out of the control of the employees. If the service is for 31 days up to 180 days, the employees must submit an application for reemployment no later than 14 days after completion of service. For service beyond 180 days, the application must be submitted no more than 90 days after the end of service. For employees injured or disabled as a result of their service, the reporting deadline may be extended. (27)

USERRA AND SALARY, HEALTH BENEFITS AND PENSION

No Requirement to Provide Paid Leave

USERRA does not require employers to pay employees wages during any period of military leave. An employer, of course, may choose to do so, or may opt to pay, for example, the difference between the military pay and the employee's regular salary.

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Health Benefits

A common concern for reservists activated and deployed is the impact their absence from their civilian job will have on employer-provided health benefits. Generally, if the period of leave is 30 days or less, the employer's health insurance benefits remain intact. If the leave is for more than 30 days, employees and their dependants should be covered by military-provided health care benefits. In addition, other federal provisions offer reservists protection by enabling them to continue their health care insurance. The Consolidated Omnibus Budget Reconciliation Act (COBRA) and USERRA allow for health care coverage rights to employees after an event in employment such as a reduction in hours worked due to military deployment. This extended coverage is good for a period of up to 18 months.

In addition, the Health Insurance Portability and Accountability Act (HIPPA) also recognizes the ability of some individuals to enroll in another health insurance plan if one is available. For example, spouses may have a health insurance plan available through their employer that they may wish to take advantage of during the time of deployment. HIPPA allows for access to this plan regardless of the existence of set enrollment periods. (28)

Pensions and other Employer Benefits

When in leave status for military service, employees are to be viewed as though they are continuously employed for purposes of seniority and pension benefits. (29) In addition, employees exercising their rights under USERRA are entitled to the same benefits as those generally provided to other employees on unpaid leave.

USERRA and the Family Medical Leave Act

The Family Medical Leave Act (FMLA) provides for 12 workweeks of unpaid leave to address a serious health condition of an employee or a family member or to take time off to care for a newborn or adoptee. To be eligible, employees must have worked for the employer for a minium of 12 months and at least 1,250 hours for that employer. (30) Questions regarding the right to use FMLA leave shortly after returning to the workforce from active duty have arisen in light of the requirements regarding employment for the employer preceding the request for FMLA leave. In a DOL Memorandum dated July 22, 2002, available on the DOL Web site at http://www.dol.gov/vets, the DOL advised that individuals reemployed following military duty are entitled to the rights and benefits they would have earned if they had remained in civilian employment. The time spent serving in the military is to be counted for FMLA purposes as if the employees never broke service.

NOTICE UNDER USERRA

USERRA requires employees to provide notice to their employers of their intent to take military leave, unless to do so is not feasible or precluded by military necessity. (31) The employer may require written documentation regarding the military leave if it is for more than 30 days. (32)

In 2004, Congress passed the Veterans Benefits Improvement Act (VBIA), which amended USERRA by adding a requirement that employers provide notice of the rights, privileges, and obligations of employees and employers under USERRA. (33) On March 10, 2005, the DOL published an interim final rule, setting forth language to be used by employers to comply with the notice requirement. (34) Generally, the notice includes a description of the reemployment rights of those who voluntarily or involuntarily leave employment for military service, as well as the prohibition against discrimination on the basis of military service and the right to be free from retaliation for seeking enforcement of USERRA. The notice also contains a brief summary on the health benefits attendant to military deployment and a description of the enforcement mechanism. (35)

ENFORCEMENT AND REMEDIES

The statute offers different avenues for an individual to pursue relief. Administrative recourse may be sought through VETS within the Department of Labor. VETS offers guidance on the interpretation and application of USERRA and will investigate complaints, although a complainant has the option of pursing administrative recourse. (36) A complainant also has the ability to request that the U.S. attorney general consider their complaint. If determined to be meritorious, the attorney general may pursue the case for the complainant. Individuals also have the right to pursue the matter in civil court themselves if they choose not to file with VETS or if the attorney general refuses to pursue the matter.

USERRA allows for the awarding of double dam-ages (double the amount of wages and back pay) if the employer's actions in violating USERRA are "willful." In addition to wage-related damages, the court also may grant attorney fees, expert witness fees, and other similar types of expenses.

CONCLUSION

Recognizing the significant role our citizen soldiers have in protecting this country, Congress has acted to provide job security in their civilian life so that they do not have to choose between serving their country and serving their community. While a civilian employer may face challenges upon the deployment of employees who serve in the reserves, Congress has favored protecting job security upon deployment while attempting to do so in a fair manner to the employer. When assessing the rights and obligations of reservists, employers also should be aware of state laws that may offer even more protections to reservists within that state.

Endnotes

(1) The Department of Labor recently indicated that over 460,000 members of the National Guard and Reserve have been mobilized since September 11, 2001. See 7 Fed. Reg. 46, pp. 12105-12109 (3/10/2005).

(2) 38 U.S.C. [section][section] 4301-4333.

(3) 69 Fed. Reg., No. 181, pp. 56265-56301 (to be codified at 20 C.F.R., Part 1002).

(4) Id. at [section] 4301. USERRA replaced what was Congress' original effort to offer some measure of protection. The original provision was passed in 1940 and was named the Selective Training and Service Act of 1940, codified at 50 U.S.C. 301, et seq. This was replaced by the Vietnam Era Veterans' Readjustment Assistance Act of 1974, codified at 38 U.S.C. [section][section] 2021-2027, often referred to as the Veterans' Reemployment Rights Act.

(5) 38 U.S.C. [section][section] 4301-4333. USERRA was enacted pursuant to the War Powers Clause of the Constitution. Art I, [section] 8. cl. 11. Many of the other federal statutes that address employment matters have their origins in Congress' ability to regulate commerce among the states. In basing such actions on a presumption of nexus to interstate commerce, thresholds on the size of the workforce have been included within many such federal statutes.

(6) 38 U.S.C. [section] 4303(3) and (4).

(7) Brandsasse v. City of Suffolk, 72 F.Supp.2d 608 (E.D. Va. 1999) (City and director of personnel for the police department were subject to liability under USERRA as city paid the wages and controlled the hours. The director of personnel was responsible for employment actions).

(8) 38 U.S.C. [section] 4303.

(9) 278 F.3d 895 (9th Cir. 2002).

(10) The reserves are composed of three organizational units, the Ready Reserve, the Standby Reserve, and the Retired Reserve. See 10 U.S.C. [section] 1014(a). The training and service commitments vary depending on the nature of the reserve unit an individual serves within.

(11) 10 U.S.C. [section] 10149(a). See Dow v. U.S., 192 F.3d 366 (2d Cir. 1999) (Ninety-six FBI agents sued, alleging that the FBI's policy prohibiting agents from serving in the Ready Reserve violated their rights under USERRA. By statute, the President is vested with the authority to screen the Ready Reserve. The president delegated this authority to the secretary of defense, who issued regulations noting that certain positions within the federal service cannot be vacated during critical times without jeopardizing the nation's security. The secretary of defense directed each federal agency head to identify "key positions" which are not to be filled by individuals in the Ready Reserve. For decades, the FBI director has determined that agents may not serve in the Ready Reserve. In reviewing this position, the Court determined that Congress did not intend for courts to interfere with determinations of this nature in the federal intelligence agencies.) For more information regarding the designation of certain federal employees as "key employees," employers should refer to regulations published at 10 C.F.R. [section] 44.5(b).

(12) 38 U.S.C. [section] 4311 (a).

(13) Id. at [section] 4311(b).

(14) Id. at [section] 3411(c). See Fink v. City of New York, 129 F.Supp. 511, 520 (E.D.N.Y.) (motivating factor if the employer "... took into account, considered, or conditioned its decision on that consideration."); Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001); Gummo v. Village of Depew, 75 F.3d 98 (2d Cir. 1996), cert. denied, 517 U.S. 1190 (1996) (Police officer/reservists' claim allowed to go to jury after court determined that officer established his participation in military training was a motivating factor for his termination and sufficient evidence of animus toward reservists existed to overcome city's claim that his termination was based on grounds unrelated to his absence for military training).

(15) 38 U.S.C. [section] 4311(b). See Brandsasse v. City of Suffolk, 72 F.Supp.2d 608 (E.D.Va. 1999) (Police officer met burden necessary for case to continue against city for denying him an opportunity to take a promotional exam when he was ordered to participate in military training and retaliating against him for asserting rights protected under USERRA).

(16) 38 U.S.C. [section] 4311 (c)(2).

(17) USERRA was amended to create an exemption from reemployment for pre-service positions "brief and recurrent" and not likely to continue indefinitely. 38 U.S.C. [section] 412(de)(1)(C).

(18) 38 U.S.C. [section] 4313(a)(1)(A) and (B).

(19) Id. at [section] 4313(a)(4).

(20) Id. at [section] 4313(a)(2).

(21) Id. at [section] 4313(a)(4).

(22) Id. at [section] 4313(a).

(23) Id. at [section] 4312(c)(1) - (c)(4).

(24) Id. at [section] 4313(a)(3).

(25) Id.

(26) Id. at [section] 4312(e).

(27) Id.

(28) See Pub. L. No. 104-191 and 29 U.S.C. [section][section] 1181 et. seq. For more information on protections afforded reservists under HIPPA, refer to the DOL Web site at http://www.dol.gov, under "Frequently Asked Questions for Reservists Being Called to Active Duty."

(29) Id. at [section] 4316(a).

(30) The FMLA is codified at 29 U.S.C. [section] 2601 et. seq. The DOL issued implementing regulations located at 29 C.F.R. [section] 825.100 et. seq.

(31) 38 U.S.C. [section] 4312(a)(1) and (b).

(32) 38 U.S.C. [section] 4312(f).

(33) Pub. Law No. 108-454 (Dec 10, 2004). The notice requirement will be codified at 38 U.S.C. [section] 4224. The VBIA required the secretary of labor to make the text of the notice available by March 10, 2005.

(34) FR. Doc. 05-4871, p. 12108. to be published at 20 C.F.R., Appendix to Part 1002, titled "Your Rights Under USERRA."

(35) Id.

(36) 38 U.S.C. [section][section] 4321-4322.

By LISA A. BAKER, J.D.

Special Agent Baker is chief of the Legal Instruction Unit at the FBI Academy.