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Members of the Military Have Civilian Job Protections

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Thousands of military reservists have been called to active duty in the past several years, leaving their civilian jobs for months or even years. A 1994 law called the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to virtually all employers and gives reservists and other service members a wide range of job protections. 

Q:  What types of military service are covered by USERRA?
A:
  USERRA’s definition of “uniformed services” includes the Army, Navy, Marine Corps, Air Force, Coast Guard, National Guard, and others. Active duty, reserve duty, and required training activities are covered, even if the employees volunteer for duty. USERRA does not apply to service members who are dishonorably discharged. 

Q:  What protections does USERRA provide for employees?
A:
  USERRA guarantees unpaid military leave for most employees. Although the total length of an employee’s leave is limited to five years, numerous exceptions apply. 

Covered employees can keep any existing health care benefits for up to two years. If the military leave lasts more than 31 days, the employer can make the employee pay up to 102 percent of the health care premium (the extra two percent is for the employer’s administrative costs). For shorter absences, the allocation of health care costs cannot be changed. 

Pension plans and other employee benefits are also covered by USERRA. For example, the United States Department of Labor takes the position that time spent on military leave counts toward eligibility for benefits under the Family and Medical Leave Act (FMLA). (The FMLA allows covered employees to take extended leave from work for such reasons as childbirth or serious illness.) 

When an employee’s military service ends, he or she is generally entitled to prompt re-employment. Certain narrow exceptions exist if re-employment is impossible, unreasonable, or would cause undue hardship to the employer.  

Q:  What is the “escalator principle”? 
A:
  After World War II, the U.S. Supreme Court ruled that a returning soldier “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” This principle has been incorporated into USERRA. 

Thus, where it is reasonably certain that an employee would have been promoted if not for the military leave, the employer may have to award that promotion (or another job with similar pay and status) when the employee comes back.   Employers also must make reasonable training efforts for employees who may not be qualified for the “escalator position.”  

The escalator principle does not always guarantee a promotion, however. If an employee on military leave would have been laid off along with other employees, USERRA probably does not require that person’s re employment.  

Q:  Does USERRA impose any obligations on employees?
A: 
Yes. To be eligible for leave under USERRA, the employee (or an appropriate military officer) must give advance notice to the employer. The notice may be informal and does not have to be in writing. Notice is not required where it is impossible, unreasonable, or prevented by military necessity.

Employees must return to work within a certain amount of time when their duty ends. For service of less than 31 days, the employee gets at least an eight-hour rest period but must report for work the next day. Employees serving in the military for longer periods must submit an application for re-employment within two weeks or three months, depending on the length of service. These time periods can be extended for injuries or other situations beyond an employee’s control. 

In certain circumstances, employers may require documentation about a person’s military service in connection with a re-employment application. 

Q:  What if an employer violates USERRA?
A:
  USERRA can be enforced through individual lawsuits. Employees and former employees also may request an investigation by the Veterans’ Employment and Training Service (known as “VETS”), which is part of the Department of Labor.

For proven violations, employees can recover any lost pay and benefits. USERRA does not provide for punitive damages, but the employee’s actual damages can be doubled if the violation was willful. In addition, employers may be required to pay an employee’s reasonable attorney fees and other litigation expenses. 

10/30/2013

Law You Can Use is a weekly consumer legal information column provided as a public service of the Ohio State Bar Association. This article was prepared by Justin D. Flamm, an attorney in the Cincinnati office of Taft Stettinius & Hollister LLP.​​​

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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