March 19, 2021
Serving Those Who Have Served
by Angelina Vega, Esq., National Veterans Memorial And Museum
A person who voluntarily or involuntarily leaves civilian employment to serve in the uniformed services is entitled to certain benefits as outlined in the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended. Generally, many employers think of USERRA as applying to National Guard members or the reserve component of the Armed Forces; however, USERRA also covers active-duty uniformed service members in times of peace or war.
USERRA is federal law and defines “uniformed services” as all branches of the military (including the Coast Guard and Space Force), their reserve components, the National Guard when under federal authority and, in some cases, members of the National Disaster Medical System. (National Guard members who are called to serve by the Ohio Governor are covered under ORC Chapter 5903.)
Unlike many employment laws, USERRA applies to all employers, regardless of size, and all types of uniformed service, to include training and performing authorized military funeral honors duty. It also applies to nearly all types of employment – full time, part time, probationary and seasonal, unless the employment was for a brief time and there was no reasonable expectation of the employment continuing for an indefinite amount of time.
Cumulative employee time away while serving in the uniformed services is generally limited to five years, though USERRA does list some exceptions. For example, an employee who gives a resignation notice due to enlisting in the military as active-duty has reemployment rights with the employer for up to five years, as does a National Guard member who is called up for a three-week period of training prior to departing for a two-year period of active-duty. This does not mean an employer is required to hold a job open for five years, but it does mean that an employee who returns from the uniformed service after a period of absence has a right to reemployment.
In fact, not only does the employee retain the right to reemployment, USERRA requires the employer to rehire the employee in an “escalator position.” This means that an employer must rehire the employee into a position the employee would have been in if not for resigning to serve. If this means that an employee would have been promoted to manager with a raise, the employer must rehire the employee into a manager position with the appropriate salary and benefits. An employee who is not qualified for the escalator position and cannot become qualified through reasonable efforts of the employer at no cost to the employee, must be placed into a position with similar seniority, status, and pay as the employee was in prior to departing for service.
There are requirements the returning employee must achieve to be eligible for rehire under USERRA. The employee must have provided advance notice of leave (unless it cannot be given for military necessity) and returned to work or applied for reemployment within a reasonable time after separating from the uniformed services. In addition to the less than five-year cumulative service, the employee must not have separated from service with a disqualifying discharge.
The above is only a small part of the reemployment rights for people who voluntarily or involuntarily serve. USERRA also covers employment discrimination, health insurance protection and enforcement. Employers who have returning employees who are exercising their rights under USERRA should seek further information and guidance from an attorney experienced in this area.