Returning Veterans to Work: Reemployment Obligations for Employers under USERRA Vary Based on Length of Service

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace.

USERRA differs from other employment laws (e.g., Title VII) in many respects. For example, USERRA applies to all public and private employers, regardless of size.  20 C.F.R. § 1002.34(a) (“[A]n employer with only one employee is covered[.]”).  Additionally, USERRA has no statute of limitations for claims that accrued after October 10, 2008 (claims accrued after October 10, 2004, are likely timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.

Another unique aspect of USERRA is its “escalator” requirement that mandates returning service members be reemployed in the job (including seniority, status, and pay) that they “would have attained with reasonable certainty” had they not been absent for military service. See 20 C.F.R. § 1002.191.  This provision can be problematic for employers, as it can be difficult to determine with reasonable certainty which job a service member would have attained if he/she had not been absent for military service.  This provision can also pose difficulties for employers because reemployment to a position other than the escalator position is only sometimes permissible, depending on the length of the employee’s military service.

For example, under 20 C.F.R. section 1002.197, the multiple, non-escalator positions in which a service member returning from service may be reemployed are prioritized. A “position of like seniority, status, and pay” is an acceptable alternative to the escalator position, but only if the military service was for more than ninety (90) days. See 43 U.S.C. § 4313(a)(2)(B). If the employee is not qualified to perform the duties of the escalator position or a like position after reasonable efforts by the employer to help qualify the employee, the employee may be reemployed in the position in which he or she was employed prior to commencement of their military service.  Again, reemployment in a position of “like seniority, status, and pay” is permitted.

However, reemployment in a position of “like seniority, status, and pay” (with respect to either the escalator position or pre-service position) is not permissible for military service leaves lasting ninety (90) days or fewer. Instead, employees must be returned to their pre-leave position. See 20 C.F.R. § 1002.197.  This issue was recently addressed by the Nevada District Court in Keene v. Clark County School District, No. 2:14-cv-00381-APG-PAL, 2016 U.S. Dist. LEXIS (D. Nev. June 30, 2016).  In Keene, an employee went on leave from his position of Data Coordinator III, Northeast Region in order to perform military service.  During his absence, which was for fewer than ninety (90) days, his position was filled.  Upon his return to work, the company reemployed the service member to Data Coordinator III, East Region.  The employer claimed that, while it covered a slightly different geographic area, the new position had the same pay scale and job duties as the old position.  The Court disagreed and held that, because the leave lasted fewer than ninety (90) days, the employer “violated USERRA when it failed to give [the employee] back his pre-service position[.]”  The Court further found it to be irrelevant that the employee’s pre-service position had been filled during his deployment, because USERRA requires that the returning service member be returned to his/her pre-service position “even if reemployment might require the termination of th[e] replacement employee.”  20 C.F.R. § 1002.139(a).

From a practical perspective, employers should ensure that Human Resources and managers understand the full range of obligations with regard to returning veterans, as well as the extremely favorable treatment courts afford returning veterans, and perhaps consider a coordinated or centralized approach to their reemployment. In some cases, compliance with the complexities of the statute may require advice of counsel.