Employer's Obligations and Employee's Rights Regarding Absences Due to Military Servic

09/18/2001

In light of the recent terrorist attacks in New York and Washington, D.C. and President Bush’s national emergency order authorizing the activation of 50,000 military reservists, we issue this client alert regarding employer and employee rights and obligations when employees are called for active military service.

The Uniformed Services Employment and Reemployment Rights Act of 1994

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or the “Act”)  prohibits discrimination based on past, current, or future military obligations in any branch of the United States uniformed services.  The Act bars discrimination in employment decisions such as hiring, promotion, reemployment, termination, and benefits.  Regardless of the number of employees, all employers are subject to USERRA.  The Act also protects persons who apply to become members of the service.  USERRA, however, does not protect persons who are separated from the service under conditions that are not honorable.

Under USERRA, an employee who leaves a job to serve in the uniformed services, either voluntarily or involuntarily, is entitled to reinstatement upon satisfactory completion of the uniformed service term.  An employee on military leave is not entitled to pay, but is entitled to participate in insurance or other benefits offered by the employer.  Moreover, an employer cannot force an employee to use vacation time for military leave.

Reemployment

USERRA provides broad protection for employees who seek reemployment after they have completed their military service.  An employee who reapplies for work after military leave must, with limited exceptions, be reemployed in the position that the employee would have attained had the military service not interrupted the employment relationship.  If the employee is not qualified for that position, then the employer is obligated to make reasonable efforts to train the employee to become qualified.  If, however,  the employee remains unqualified for that position, then the employee must be reemployed in the position that the employee left.  Further, if the employee’s length of uniformed service was more than 90 days, then the employer has the option of placing the employee back in the position the employee would have attained or, alternatively, placing the veteran in a position of like seniority, status, and pay.  An employer is not obligated to reemploy an employee if the employer’s circumstances have changed to an extent that reemployment would be unreasonable, impossible, or would impose an undue hardship on the employer.

Qualification for Reemployment

An employee must satisfy certain requirements to qualify for reemployment.  Under USERRA, an employee must:

  • have given the employer written or verbal notice in advance of service, unless (a) the giving of notice is precluded by military necessity; or (b) an appropriate officer of the uniformed service the employee serves in gives the notice;
  • have cumulative absences from work with the employer due to military service that do not exceed five years; and
  • have applied for reemployment according to these guidelines:

    Length of Period of Service

    Reapply No Later Than Less than 31 days

    (1) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence; or (2) as soon as possible after the expiration of the eight-hour period referred to in clause (1), if reporting within the period referred to in such clause is impossible or unreasonable through no fault of the person. 

    More than 30 days

    14 days after completion of service.

    More than 180 days

    90 days after completion of service. 

    Additionally, to qualify for reemployment, the person’s pre-service employment with the employer had to extend for more than a brief period with an expectation that it would continue for a significant time.  Finally, the person’s termination from military service must have been under honorable conditions. Time periods are extended if a person is hospitalized or otherwise receiving care stemming from an illness or injury incurred or aggravated during active military service.

    Benefits and Protection after Reemployment

    USERRA also offers certain protections for employee benefits when employees are called for active military service.  The employee benefit issues are addressed in a separate client alert attached to this e-mail.  A person reemployed under USERRA is considered to have taken a leave of absence while in service.  Therefore, the person is entitled to both the pre-service and the seniority, rights and benefits that accrued while the person was in the service.  A person, however, is not entitled to seniority, rights, and benefits if the person knowingly provides the employer written notice of intent not to return to work after the person’s service with the uniform service has ended.  Significantly, the employer may not discharge a person reemployed under the Act without cause within one year after the date of reemployment, if the person’s period of service was more than 180 days, or within 180 days after the date of reemployment if the person’s period of service was more than 30 days but less than 180 days.

    If you have any questions regarding these or other issues related to USERRA, please call:
     

    Dean J. Schaner
    Houston, TX
    (713) 547.2044
     

    Jonathan C. Wilson
    Dallas, TX
    (214) 651-5646
     

    Michael W. Fox
    Austin, TX
    (512) 867-8459
     

    William P. Finegan
    Richardson, TX
    (972) 739-6932

    Chris Scherer
    San Antonio, TX
    (210) 978-7408

    Terry Boone
    Fort Worth, TX
    (817) 347-6612

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