Pittsburgh Military Leave & USERRA Attorney

1. I have been activated to military service. What happens to my current job when I leave to fulfill my military obligation?

To minimize the disadvantages that occur when workers need to be absent from their civilian employment to serve in this country’s uniformed services, there is a federal law that provides for:

1. reemployment rights
2. health insurance protection
3. the right to be free from discrimination on the basis of military service and retaliation

2. Which federal law(s) cover military leave?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) 38 U.S.C. Sects. 4301-4333 seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service, by expanding the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights. USERRA also provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.

3. Who is covered by USERRA?

USERRA’s reemployment rights potentially cover every individual in the country who serves in or has served in the uniformed services, whether voluntarily or involuntarily, and applies to all employers in the public and private sectors, including Federal employers.

The “uniformed services” consist of the following:

1. Army, Navy, Marine Corps, Air Force, or Coast Guard.
2. Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve.
3. Army National Guard or Air National Guard.
4. Commissioned Corps of the Public Health Service.

“Service” in the uniformed services covers all categories of military training and service, whether performed on voluntary or involuntary basis. It includes:

1. Active duty
2. Active and inactive duty for training
3. National Guard duty (federal, not state, duty)
4. Absence from employment for military-fitness examinations
5. Absence from employment under orders to perform funeral honors duty
6. Service as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or as a participant in an authorized training program by such appointee
7. Attendance at a United States military service academy

4. Which employers are covered by the law?

Unlike many other laws applicable to employees, such as anti-discrimination laws, the employer does not have to have a certain minimum number of employees to be subject to the law’s requirements. There are no exceptions for federal or state government employees.

USERRA defines “employer” as: “any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities,” including:

1. a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;
2. foreign companies doing business in the United States;
3. foreign operations of American companies;
4. the Federal Government;
5. a State;
6. any successor in interest to a person, institution, organization, or other entity referred to in USERRA; and
7. a person, institution, organization, or other entity that has denied initial employment because of discrimination or retaliation prohibited by USERRA.

5. Are all individuals activated for military service eligible for reemployment under the law?

Generally, the individual must meet five conditions, or “eligibility criteria,” to be eligible for reemployment under USERRA. The individual:

1. must have been absent from a civilian job in order to perform military service (unless the employer can show the job was held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period.)
2. must have given written or verbal notice to the civilian employer prior to leaving the job for military training or service (except when precluded by military necessity.)
3. must not have exceeded during the employment relationship with the civilian employer the 5-year cumulative limit on periods of service (with the exception of certain periods of service noted below at question 11.)
4. must have been released from service under conditions other than dishonorable.
5. must report back to the civilian job in a timely manner or submit a timely application for reemployment.

6. What job entitlements or protections does USERRA offer?

USERRA provides for four basic entitlements (if the eligibility criteria listed in the previous question are met):

1. Prompt reinstatement (as soon as possible, but no longer than two weeks)).
2. Accrued seniority as if continuously employed.
3. Training or retraining and other accommodations, which may be critical in case of a long period of absence or service-connected disability.
4. Special protection against discharge, except for cause. The period of this protection is either 180 days (following periods of service of 31-180 days) or one year (for periods of service of 181 days or more.)

7. What forms of discrimination or unfair treatment are illegal?

According to section 4311(a) of USERRA:

1. “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services shall not be denied
2. initial employment,
3. reemployment,
4. retention in employment,
5. promotion,
6. or any benefit of employment
7. by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”

According to section 4311(c)(1):

1. “An employer may not discriminate in employment against or take any adverse employment action against any person because such person has
2. taken an action to enforce a protection afforded any person under this chapter,
3. has testified or otherwise made a statement in or in connection with any proceeding under this chapter,
4. has assisted or otherwise participated in an investigation under this chapter,
5. or has exercised a right provided for [by USERRA].”

This provision prohibits retaliation against any person, without regard to military connection, who testifies or otherwise assists in an investigation or other proceeding under USERRA.

8. What happens to my job while I am on military leave?

When you return from military service, you must be reemployed in the job that you would have had if you had not been absent for military service (known as the “escalator” principle) and with the same seniority, status and pay, as well as other rights and benefits determined by seniority. The escalator principle requires that each returning service member actually step back onto the seniority “escalator” at the point the person would have occupied if the person had remained continuously employed.

The position may not necessarily be the same job you previously held. For instance, if you would have been promoted with reasonable certainty had you not been absent, you would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one you held previously, it could be a different job, or it could conceivably be in layoff status.

Reasonable efforts must be made to enable you to refresh or upgrade your skills so that you can qualify for reemployment. Employers must provide refresher training, and any training necessary to update your skills in a situation where you are no longer qualified for the job due to technological advances. Training will not be required if it is an undue hardship for the employer, as discussed in question 12.

If refresher training is not successful, USERRA provides that you must be reinstated in a position that most nearly approximates the position you originally held. If you are disabled (temporarily or permanently) due to military service, you must also be accommodated in a position most nearly approximating your original position.

9. What happens to my benefits while I am on military leave?

If you and/or your dependents have coverage under a health plan in connection with your employment, including a group health plan, and you are absent from your employment due to military service, you may elect to continue such coverage for the lesser of the following two time periods:

1. a period of 24 months, beginning on the date of your absence from work, or
2. until one day after the date on which you fail to apply for or return to a position of employment

If you elect to continue health-plan coverage, you may be required to pay the cost of the coverage (up to 102 percent of the full premium, similar to COBRA requirements) associated with coverage for the employer’s other employees. If you served in the uniformed services for less than 31 days, you may not be required to pay more than the employee share, if any, for coverage.

If your coverage under a health plan was terminated because you served in the uniformed services (and were unable to pay the premiums to continue coverage), the plan may not impose an exclusion or waiting period when reinstating coverage upon reemployment, as long you would not have been subject to an exclusion or waiting period if your coverage had not been terminated due to military service. This applies to you upon reemployment and to any of your dependents covered by the plan once you are reinstated.

If and to the extent that your employer provides any other benefits (not relating to health care) to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), the employer must provide similar benefits to employees who are away from work performing service in the uniformed services.

10. What happens to my accumulated seniority while I am on military leave?

The law entitles you to accrued seniority as if continuously employed, which includes all rights and benefits determined by seniority, such as status, rate of pay, pension vesting, and credit for the period for pension benefit computations.

11. How often can I take military leave? Is there a limit to the amount of leave time that I can take?

USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service. You can take leave as often as you need it due to activation to military service, subject to a five-year cumulative limit per employer in order to retain reemployment rights with that employer. If you get a different job with a new employer, you get a new 5-year limit.

There are some important exceptions to the 5-year limit:

1. If you are unable to obtain release or if service is required to complete an initial period of obligated service, that time of service is exempt.
2. For example: If an initial enlistment lasts more than 5 years, such as for nuclear power training, the employee retains reinstatement rights with the employer.
3. If an employee was hospitalized for or is convalescing from an illness or injury incurred in, or aggravated during military service, the limit may be extended up to an additional 2 years.
4. Drills (inactive duty training), annual training, involuntary active duty extensions (including training certified as necessary by your service), and recalls due to a war or national emergency are not counted in the 5-year cumulative total.
5. Service performed in another job to mitigate economic harm where your employer is violating its employment or reemployment obligations to you.
6. If you were employed by the same employer both before and after USERRA’s effective date of December 12, 1994, duty that you performed under the previous law will count against the USERRA 5-year limit only if that duty counted against the prior law’s service limitation.

12. What are valid reasons for an employer to deny reemployment?

Assuming you are otherwise eligible for USERRA protection, an employer is not required to reemploy you if:

1. the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable;
2. in the case of a person entitled to reemployment that would impose an undue hardship on the employer; or
3. the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
4. For example, if your employer engaged in a mass layoff, or eliminated your job function completely while you were away, it would not be required to reemploy you.
5. Your employer can also deny reemployment if you are no longer entitled to the law’s protections, such as after you receive a dishonorable discharge or failed to give your employer notice prior to leaving the job for military training or service.

13. Does USERRA require my employer to tell me any information about USERRA or my employment rights after a period of military service?

Yes. As a result of new amendments to USERRA passed in December 2004, employers are now required to post a notice to employees about the legal rights guaranteed by USERRA. This notice must be posted in the place where employee notices are customarily posted, like the employee break room. The Department of Labor has issued the following poster, which incorporates the notice requirements:

Your Rights Under USERRA poster

14. Can my employer require any documentation from me before reemploying me?

Yes. After you have submitted an application for reemployment, your employer can request documentation to establish that:

1. your application is timely;
2. you have not exceeded the service limitations; and
3. your separation from military service was under honorable conditions.)

If you cannot provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy you. If after you are reemployed, however, documentation becomes available that shows that you did not meet one or more of the reemployment requirements, the employer may then terminate you. The termination would be effective as of that moment, but would not operate retroactively.

If you have been absent for military service for 91 or more days, an employer may delay making retroactive pension contributions until you submit satisfactory documentation. However, contributions will still have to be made for you if you were absent for 90 or fewer days.

15. Does USERRA require my employer to pay me during my leave?

No. USERRA does not require an employer to pay you for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives federal civilian employees the right to 120 hours per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees. Of course, your employer may voluntarily pay you or choose to supplement the difference between your military and civilian salary, but this is not legally required.

If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, the employer is not permitted to make a deduction for a part of a pay period missed because of temporary military leave. This is an FLSA requirement, not a USERRA requirement. For more information, see our overtime exemptions page.

16. What kind of notice am I required to give my employer to take military leave?

The law requires all employees to provide their employers with advance notice of military service, but does not specify a particular length for the notice period. Circumstances arise, especially in a mobilization scenario, when you may have very little advance notice from military authorities. USERRA’s purpose would be defeated if the lateness of the notice to the civilian employer prevented you from later becoming reemployed, especially when you had little or no notice from the military.

Notice may be either written or oral; a copy of their military orders is not required by the law. Notice may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:

1. military necessity (as designated pursuant to regulations prescribed by the Department of Defense) prevents the giving of notice; or
2. the giving of notice is otherwise impossible or unreasonable.
3. The Department of Defense advises employees to provide their employers with as much advance notice as they can.

17. I have accumulated vacation leave. Does that affect how much military leave I can have?

No. Under USERRA, your employer may not force you to use earned vacation or other leave. Employees are entitled to earned vacation or leave in addition to time off to perform military service.

However, if you request it, you must be permitted to use any vacation that had accrued before the beginning of your military service instead of unpaid leave.

18. I started my current job six months ago. Am I entitled to take military leave?

Yes. As long as you meet the eligibility requirements (described in question 5 above) the duration of your employment does not affect your protection under the law, unless your employer can show the job was held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period.

Even if your job was temporary, and not permanent, you still may qualify for protection if you had a reasonable expectation that the job would continue for a significant period.

19. I am a manager at my company. Does USERRA apply to me?

Yes. As long as you meet the eligibility requirements (described in question 5 above) the nature of your job or job title does not affect your protection under the law.

20. I am a government employee. Does USERRA apply to me?

Yes. As long as you meet the eligibility requirements (described in question 5 above), the law specifically protects employees of the state or federal government.

21. I am a teacher with three months of leave in the summer. Can I take military leave during the winter?

Yes. As long as you meet the eligibility requirements (described in question 5 above), you may take leave whenever you have been activated for military service.

22. What if I don’t plan to return to this job when I finish my military service? Do I have to tell my employer in advance?

You do not have to tell your employer in advance about your intentions, and by doing so, could waive certain rights and benefits that would otherwise accumulate in your absence.

If, prior to leaving for military service, you knowingly provide clear written notice of your intent not to return to work after military service, you waive entitlement to leave-of-absence rights and benefits not based on seniority.

At the time of providing the notice, you must be aware of the specific rights and benefits to be lost. If you lack that awareness, or are otherwise coerced into giving notice, the waiver will be ineffective.

Your notice of intent not to return can only waive leave-of-absence rights and benefits. Providing your employer with this notice does not surrender other rights and benefits that you would be entitled to under the law, particularly reemployment rights. This means that even if you have given notice, your employer is still obligated to reemploy you upon your return if you change your mind and want to return.

23. I’m a member of the National Guard and have that experience listed on my resumé. During my job interview, I was asked about whether my Guard unit was likely to be activated soon, and was told that since the company was a small business, it was a hassle to have reservists on the payroll. Can the company refuse to hire me due to my membership in the Guard?

The law protects from discrimination past members, current members, and persons who apply to be a member of any of the branches of the uniformed services or to perform service in the uniformed services.

The Employer Support of the Guard and Reserves (ESGR) reminds employers:

We (ESGR) recognize that employing National Guard and Reserve personnel can pose challenges for civilian employers, but please remember that there are also advantages to employing these people. They know how to manage time, and they are focused on mission accomplishment. They learn how to take and give orders. They receive tens of thousands of dollars worth of training, often directly transferable to civilian job skills, at no cost to you, the employer. They are physically fit. They are regularly tested and are certifiably drug-free. On balance, employing National Guard and Reserve personnel is a big plus for the civilian employer, and for the nation.

You may wish to re-emphasize these points in any follow-up conversations you have with the employer. If it appears that your past, present, or future connection with the service is a motivating factor in an employer’s failure to hire you (or any other adverse employment action against you), the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of your connection with the service. If the employer refuses to hire you, with no other apparent reason for doing so, it may be necessary to pursue a complaint against your employer.

24. My tour of duty is complete. How do I notify my employer so that I can start working again?

Once you have completed your service obligation, there is a time limit by which you must report back to your employer. The time limit is generally based upon the duration of your military service.

Service of 1 to 30 days, or reporting back from a fitness-for-service examination: You must report to your employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period.

For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.

If, due to no fault of your own, timely reporting back to work would be impossible or unreasonable, you must report back to work as soon as possible.

Service of 31 to 180 days: You must submit an application for reemployment no later than 14 days after you complete your military service. If it is impossible or unreasonable through no fault of your own for you to submit a timely application, you must submit an application as soon as possible.

Service of 181 or more days: You must submit an application for reemployment no later than 90 days after after you complete your military service.

Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service.

The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable.

25. I have been on active duty for two years, and am anxious to start working again. Do I have to wait the full 90 days before starting to work again?

No. The 90 days belong to you, not the employer. If you are anxious to get back on the payroll as quickly as possible, you should submit your application for reemployment right away. If you need time to readjust to civilian life, you should wait to submit your application. Once you apply, you are in effect saying that you are ready, willing, and able to return to work. Do not submit the application until that is the case, unless your reporting deadline is expiring.
 

26. How do I submit an ‘application for reemployment?’

USERRA does not require a particular form, as long as you convey to your employer: “I used to work here. I left for service. Now, I am back from service, and I want my job back.” Your application for reemployment can also be made orally, or even by implication. The employer should not treat you as if you were applying for a new job, or require you to use “magic words” like “I apply for reemployment” in order to satisfy USERRA’s requirements.

However, experts recommend that returning employees make explicit written applications for reemployment.

27. How long does my employer have to reemploy me?

USERRA specifies that returning service members be “promptly reemployed.” What is considered “prompt” will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, if you are seeking reinstatement after five years on active duty, the employer might first need to give notice to an incumbent employee who has occupied the position in your absence, and who might possibly have to vacate that position. However, absent unusual circumstances, the employer must reemploy you within two weeks of your application for reemployment.

28. What happens if I do not report back to work within USERRA’s time limits? Do I lose my right to reemployment?

Not necessarily, but you are then subject to the employer’s rules governing unexcused absences, which depending on the length of time and the nature of the policy, could lead to termination.

For example, if you were one day late in reporting back to work, and if the usual sanction for one day of unexcused absence is a two-week suspension without pay, you would be entitled to the job but would be subject to the two-week suspension.

29. When my friend in the Reserves was activated, I took over his old position. Then I was activated too. Now we’re both returning from service duty. Who gets the job back?

If two or more persons are entitled to reemployment in the same position, the following reemployment scheme applies:

1. The person who first left the position has the superior right to it.
2. The person without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay in the order of priority under the reemployment scheme otherwise applicable to such person.
3. So your friend, who left the position first, has the right to be reemployed in the old position, while you are entitled to any other position with similar status and pay.

30. What should I do if my military leave request is denied?

The employer does not have the ability under USERRA to deny your request for leave. You are only required to give your employer notice, not to obtain permission. Your employer has no right to veto the timing, frequency, duration, or any other aspect of leave, and cannot require you to rearrange your schedule or find a replacement.

If the timing is a problem, your employer may wish to contact your Commanding Officer. It is Department of Defense (DOD) policy that the Commanding Officer should work with employers to resolve scheduling conflicts. The Commanding Officer will accede to the employer’s reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment. Rescheduling must be kept to a minimum. National Guard and Reserve units train together, and they must go to war together. The training periods are scheduled so that the unit can be trained together. If an individual unit member undergoes training at a different time, it is likely to be impossible to replicate the training that the rest of the unit received. As a result, the individual unit member may not be able to perform some critical task, resulting in additional casualties and endangering the accomplishment of the mission.

31. What should I do if my job has been filled when I am ready to return to work or my employer refuses to reinstate me?

If you satisfy the requirements for USERRA protection, and have submitted a timely application for reemployment, your employer has a mandatory, judicially enforceable obligation to re-employ you. You do not have to prove that the refusal to re-employ you was based on bias against your military service.

The fact that the job has been filled and the new employee has proved to be a stellar performer does not defeat your legal right to re-employment. Sometimes it is necessary to displace another employee in order to reemploy the returning veteran. Congress recognized that this law imposes burdens on employers, and that sometimes those burdens can be severe. However, Congress decided that imposing such burdens on employers is justified by the national defense needs of our nation.

You should not accept the employer’s refusal to re-employ you under these circumstances. If the employer refuses to budge and give you your job back, it may be necessary to pursue a complaint against your employer.

32. My employer put me back to work when I returned, but was obviously not happy about having to do so. In my company, employment is ‘at-will.’ Does this mean that my employer can let me go at any time?

Under USERRA, a reemployed employee may not be discharged without cause as follows:

1. For one year after the date of reemployment, if your period of military service was more than 180 days.
2. For six months after the date of reemployment, if your period of military service was for 31 to 180 days.
3. Persons who serve for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.

For the discharge to be for cause, it must be based either on conduct or another legitimate nondiscriminatory reason. Your employer must prove that:

1. if the discharge is based on conduct, that it was reasonable to discharge your for the conduct in question and that you had notice that your conduct would be cause for discharge; or
2. if the discharge is based on another legitimate nondiscriminatory reason, that your job was eliminated or you would have been laid off regardless of your military service.

33. Who enforces the law?

USERRA is enforced by the Veterans Employment and Training Service (VETS) of the U.S. Department of Labor. VETS is authorized to investigate and, if meritorious, attempt to resolve complaints of USERRA violations.

Your complaint must be in writing, in the format required by VETS. It must include the name and address of the employer against whom the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.

The law gives VETS a right of access to examine and duplicate employer and employee documents that it considers relevant to an investigation. VETS also has the right of reasonable access to interview persons with information relevant to the investigation. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.

Persons whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the Attorney General, or the Office of Special Counsel, depending on the employer, for possible court action. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf.

It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under USERRA.

To contact VETS for further information and/or to report a potential USERRA violation,

Office of the Assistant Secretary for Veterans’ Employment and Training
U.S. Department of Labor
200 Constitution Avenue, N.W., Room S-1325
Washington, D.C. 20210

Phone (toll free): 866-4-USA-DOL
Website: https://www.dol.gov/vets
Local VETS offices: Local VETS Office Contact Information

34. What are the remedies available to me?

If an employer is found to have violated USERRA, remedies available to the employee may include:

1. wages;
2. employment benefits;
3. other compensation or benefits denied or lost to the employee;
4. interest;
5. an equal amount in “liquidated damages” where the employer’s action is found to be “willful.” This is often called “double damages.” “Willful” is not defined in the law, but the law’s legislative history indicates the same definition that the U.S. Supreme Court has adopted for cases under the Age Discrimination in Employment Act should be used. Under that definition, a violation is willful if the employer’s conduct was knowingly or recklessly in disregard of the law.

The employee may also obtain other forms of relief, such as:

1. employment
2. reinstatement
3. promotion

In addition to the relief described above, you may also recover from the employer:

1. reasonable attorney’s fees
2. reasonable expert witness fees
3. other costs of the legal action.

35. How can I file a complaint and how long do I have to file?

If you believe your rights under USERRA have been violated, you can file a complaint either with a federal administrative agency (VETS of the Department of Labor) or in court. You may wish to consult with an attorney before making the decision about where to file and how to draft your complaint. Unlike some other employment laws, you are not required to first file with an administrative agency before filing in court. If your case is successfully resolved by an administrative agency, however, it may not be necessary to hire an attorney or file a lawsuit (as you will probably be required to waive your legal claims).

Therefore, you may wish to first file with VETS, and then if you are unable to resolve your complaint through VETS, have chosen not to request that VETS refer your complaint to the Attorney General, or have been refused representation by the Attorney General, you can determine at that time whether to file a complaint in court.

USERRA does not contain a statute of limitations, and it specifically bars application of state statutes of limitation. This means that there is no specific filing deadline, unlike most other employment-related statutes, which require you to bring your lawsuit within a specific time period after your employer’s action(s) which you allege violated the law. However, for the best chance of success in resolving the complaint, the complaint should be filed as soon after the date of the last action thought to be a violation of USERRA as is possible, if you have been unable to resolve the problem through less formal means.

More Information:

Employer Support of the Guard and Reserves
Your Rights Under USERRA poster (required for employers to post in the workplace)
USERRA Interactive E-Laws Advisor