America Mobilizes: Employer Obligations to the Uniformed Services

With the recent massive call up of military reservists, employers should be aware that USERRA, the Uniformed Services Employment and Reemployment Rights Act, prohibits employers from denying any person employment, re-employment, promotion or any other benefit of employment because of his or her military service. Employers who willfully violate this law face stiff penalties that may result in the employer paying awards of double back pay and attorney’s fees. Employers should have a general understanding of the law and seek legal counsel where appropriate.

In general, USERRA provides that employees should not suffer any adverse employment action as a result of their military service. The law covers all employers regardless of size and protects all employees who serve in the uniformed services. However, USERRA does not apply to service members who receive a dishonorable or bad conduct discharge.

With the exception of some public employees, employers do not have to pay employees while they are performing military service. Employers are required to re-employ members upon completion of service. The law makes no distinction between voluntary or mandatory assignments. For example, if an employee volunteers to receive optional military training, the employer cannot take an adverse action against the employee.

Both the employee and the employer have responsibilities under USERRA. Unless military necessity prevents it, the employee must give the employer oral or written notice prior to the service. While the law does not state how much notice is required, employees should provide notice as soon as they become aware of the assignment. The employer may request a copy of the employee’s military orders to verify the dates of the assignment.

After employees complete their military assignment, they must report back to work within a certain period of time depending on the length of their service. For instance, if employees serve less than 30 days, they must report back to work on the next work day after they complete service. At the most, if employees serve more than 181 days, they must report back to work within 90 days from completion of service, unless convalescing from injuries suffered during service. If the employee fails to report back to work within the required time period, an employer can treat the failure to report as a normal absence under its standard absence policy.

USERRA requires that the employer return employees to the position they would have occupied had they not served. In practice, this means that if the employees would have been promoted but for the fact that they had served, then upon their return they should be promoted. The employer may be required to train the

USERRA also addresses vacation, health benefits and at-will employment status. The employer cannot force employees to use vacation time during their period of service, but employees may elect to do so. If the employees’ service lasts longer than 30 days, the employees may elect at their cost to continue employer sponsored health care coverage for themselves and their dependents for up to 18 months. Employees who serve more than 30 days cannot be terminated except for cause for 180 days after returning to work. Employees who serve more than 180 days cannot be terminated except for cause for a period of one year. A general understanding of the law will serve employers well, but they should seek the advice of counsel before taking any adverse action against a service member employee.

The author, Juan Walker, is an associate in Downey Brand’s Employment Law Practice Group. Juan is a former member of the USAF JAG Department and has commented nationally on issues relating to military justice.