- Treating Voluntary Uniformed Service Differently than Involuntary Service
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers of all types and sizes from discriminating against applicants and employees based on uniformed service, which includes service in the Army, Navy, Marine Corps, Air Force, Coast Guard, the Guard and Reserve components of military services, and the Commissioned Corps of the Public Health Service. The law grants strong reemployment rights and protections for service members returning to their civilian jobs.
One of the biggest misconceptions employers have about USERRA is that employees are only covered and protected by the law if they are “ordered” to uniformed service. However, while uniformed service members often do receive orders to perform various types of service, to include monthly recurring training (e.g., regularly-scheduled “drill” in the military Guard and Reserve) or unit deployments overseas, very often employees volunteer to perform optional tours of duty or inactive duty for training. Such voluntary service is protected in the same manner as any involuntary duty. 38 U.S.C. § 4303 (“The term ‘service in the uniformed services’ means the performance of duty on a voluntary or involuntary basis in a unformed service under competent authority ….”); 20 C.F.R. § 1002.5(l) (same); 20 C.F.R. § 1002.6 (“USERRA's definition of ‘service in the uniformed services’ covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.”). Accordingly, employers are required to recognize and handle all uniformed service absences in the same manner, regardless of how an employee ended up performing the service. It is irrelevant whether an employee “volunteered” or “signed-up, or instead was “called-up,” “tasked,” “ordered” or otherwise “involuntarily deployed.” The law makes no distinction.
- Requiring Employer “Permission” or “Approval” to Perform Uniformed Service
Contrary to common belief, employees do not need to obtain any permission or approval from their employers before departing to perform qualifying uniformed service. 20 C.F.R. § 1002.87. It does not matter that the employer may find the employee’s absence to be unreasonable in terms of duration, frequency or timing.
See Leisek v. Brightwood Corp., 278 F.3d 895 (9th Cir. 2002). To be protected by the law, though, service members must provide “advance notice” unless military necessity prevents such notice (e.g., classified mission that cannot be discussed) or providing notice is otherwise impossible or unreasonable (e.g., a short-notice tasking). 38 U.S.C. § 4312(a)(1); 20 C.F.R. § 1002.85. While USERRA itself does not dictate how far in advance notice must be given, the regulations provide that the Department of Defense “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.” 20 C.F.R. § 1002.85(d).
Employers should understand that advance notice “may be informal” and can be either verbal or written.
Id. at § 1002.85(c). Thus, employers should ensure their employee handbooks and leave policies do not attempt to impose more onerous obligations than USERRA does with respect to advance notice of an absence or its particular format. In any event, employers certainly should avoid using any policy language that suggests that military leave is subject to employer approval.
- Requiring Documentation Supporting the Employee’s Uniformed Service
An employer may not demand written orders or any other official documentation concerning the employee’s uniformed service prior to the employee’s departure from work. Again, the advance notice typically required of employees may be informal and verbal.
See 20 C.F.R. § 1002.85(c). The only time an employer is permitted to require documentation supporting the employee’s uniformed service is where an employee’s “period of service exceeded 30 days” and the employee seeks reemployment with the employer. 20 C.F.R. § 1002.121. Keep in mind that employees are not required to notify their employers at the time they depart for military service whether they intend to seek reemployment upon their return from service. 20 C.F.R. § 1002.88. Moreover, an employee can tell his or her employer that he or she does not want to seek reemployment upon return and then have a change in heart; the employee does not forfeit the right to reemployment.
Id.
In the scenario where an employee has been gone for 31 days or more and seeks reemployment upon return, an employer is permitted to request official documentation to establish: (1) that the employee’s reemployment application is timely under the law (different time periods apply depending on the duration of the absence); (2) that the employee has not exceeded the five-year cumulative limit on covered service (note: neither the regularly-scheduled Guard and Reserve “drill” each month nor the typical two-week “annual tours” count toward the five-year cap on covered service); and (3) the employee’s separation or dismissal from uniformed service was not disqualifying (e.g., it was not dishonorable (DD) or under other than honorable conditions (UOTHC)). 20 C.F.R. § 1002.121.
For most employers that face routine military absences by Guardsmen and Reservists performing monthly drills and annual trainings, the period of absence is usually only days or weeks and, as such, employers may not insist upon documentation of any sort. However, for those absences of 31 days or more, if an employer does wish to require documentation, a policy should be adopted and applied uniformly. The policy’s stated purpose should be to confirm the employee’s reemployment eligibility under USERRA. Acceptable documents that may satisfy the employer’s concern include a DD Form 214, a copy of orders, a letter from an authorized official, a certificate of completion of training, or even copies of payroll documents showing periods of service. 20 C.F.R. § 1002.123.
- Failing to Properly Apply the “Escalator Principle” During and After Uniformed Service
The escalator principle means that, when an employer reemploys an employee upon completion of uniformed service (assuming the service characterization was not disqualifying), the employer must place the employee in the same position or as nearest to the original employment position as possible if the same position does not exist. The “escalator position” is the “job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.” 20 CFR § 1002.191. The employee must be reemployed in a position that reflects “with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service.”
Id.
This escalator principle applies in scenarios involving both automatic/non-discretionary bonuses, promotions and benefits as well as those involving discretionary or performance-based promotions.
See also Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, 730 F.3d 49 (1st Cir. 2013) (holding that district court erred in not applying the “reasonable certainty” test to a discretionary promotion). If an employee would have received a bonus or promotion with reasonable certainty but for his or her absence due to uniformed service, then USERRA mandates that the bonus or promotion be awarded to the employee. An employee’s uniformed service absence absolutely may not be held against him/her in an employment action decision, including a promotion action.
See Mullins v. Goodman Distr., Inc., 694 F. Supp.2d 782 (S.D. Ohio 2010) (denying summary judgment where supervisors told plaintiff that he would not have been denied promotion if he had not been gone so long on military duty);
see also Erickson v. U.S. Postal Serv., 571 F.3d 1364 (Fed. Cir. 2009) (even almost five-year absence could not be held against employee in termination case for abandonment).
Where it is difficult to measure an employee’s performance for pay or promotion purposes due to the duration or frequency of absence(s), employers should know that they are allowed to consider their employees’ military performance evaluations, ratings and reviews. While there is no legal authority requiring this, Department of Labor (DOL) investigators have been known to question employers about whether they considered documented military performance when determining whether an employee was performing at a level to warrant a bonus or promotion. For example, if an employer finds it difficult to measure “leadership” as a trait because the employee has been gone for some time, the employer certainly can consider the employee’s leadership ratings on his or her military performance report. If an employer decides not to promote an employee who was absent for uniformed service (but did promote other similarly situated employees who were not absent), having considered military performance evaluations in making the decision would bolster the employer’s defense to a USERRA complaint.
Employers should keep in mind that USERRA is construed very broadly in favor of the employee/military member, and the escalator principle will always apply when ascertaining where an employee should be in the company’s bonus plans or promotion schedule. Employers should ask themselves, “would this employee have been promoted but for his or her military service?” If the answer is “yes,” then the employer will likely have a weak defense to a USERRA complaint. A best practice would include asking employees who have been performing service if they would like to submit their service evaluations, ratings and reviews for the employer to consider.
- Failing to Address Improper Workplace Comments About Employees’ Uniformed Service
Oftentimes, comments or statements about an employee service member which otherwise seem innocuous can serve as the basis for a USERRA complaint. We have seen instances in which supervisors and managers become frustrated at service members’ frequent absences and the interruptions they may cause to business operations. Unfortunately, sometimes those frustrations are vocalized in a manner that can cause a service member to believe that he or she has been discriminated against, either in the form of harassment or retaliation for taking protected military leave.
Officials at DOL’s Veterans’ Employment & Training Service (VETS)—the investigatory and enforcement arm of USERRA—have said in interviews that, in addition to tangible adverse employment actions, “[o]ther ways of showing the employer’s motivation [to unlawfully discriminate under USERRA] include statements of witnesses who have overheard comments that the individual can’t be relied upon because he is frequently called to duty.” Labor Law Reports,
Vets Officials Discuss USERRA Final Rule, Issue 1451, No. 912 (Jan. 25, 2006). Comments about an employee being absent or frequently performing uniformed service will be carefully examined by VETS investigators when conducting investigations into USERRA complaints. Such statements can be strong circumstantial evidence of discriminatory animus. This is especially true where there is no evidence that employers made similar comments about other employees who took different types of protected leaves.
Employers can prevent their supervisors and managers from making these types of comments through education and training about USERRA. Furthermore, when employers learn of inappropriate statements being made, they should take prompt and corrective action, including potentially disciplining those individuals responsible.