Labor & Employment Developments Blog

Between COVID-19 and social unrest, this year has seen many reservists and other members of the military called to active duty.  Unfortunately, military leave seems to be an issue with which even sophisticated employers struggle.  While not an exhaustive list, here are five things for employers to bear in mind about military leave.

1. USERRA is extremely broad. The Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects civilian employment of military personnel, is very broad. Unlike most employment laws, it applies to almost all employers regardless of size and almost all employees regardless of classification or status.  If you have employees in the military, it is a generally safe assumption that they are covered by USERRA.  In addition, USERRA protects employees from discrimination for past military service, current military obligations, or an intent to serve.  As a result, even those employees who have merely indicated an intent to join the military are protected.
2. Employees returning from leave must be given an “escalator position.” When an employee returns from a USERRA covered leave he or she is entitled to re-employment  in the position the employee would have occupied with reasonable certainty as if the employee had remained continuously employed.  For example, consider an employee who is hired into a position, e.g. Production Level 1.  Every employee is promoted to the next level, e.g. Production Level 2, after six months.  If the employee goes on leave after three months of employment and returns four months later, the employee needs to be reinstated into a Production Level 2 position because that is the position the employee would have had if he or she had been employed with the company the entire time.  However, if the employee’s job was eliminated or there was a company wide pay cut, the employee may suffer those consequences upon return.  The escalator goes up and down.
3. Employees returning from leave are protected from discharge. A reemployed employee may not be discharged without cause for one year after the date of reemployment if the person’s period of military service was for 181 days or more or for 180 days after the date of reemployment if the person’s period of military service was for 31 to 180 days.  As noted, employees are also protected from discrimination for their military service and from retaliation for exercising their rights under USERRA.
4. USERRA trumps company policies. USERRA has very limited requirements for employees before going on leave - they can provide oral or written notice if possible but are not required to provide documentation such as orders.  Upon return, employers have more leeway to request documentation depending on the length of the leave.  However, the requirements spelled out in USERRA govern what is permissible and employers’ policies on matters such as leave documentation and notice requirements, reinstatement to employment and reapplication processes do not override USERRA’s requirements and cannot be imposed over and above them.
5. USERRA litigation is always high risk. People who serve in the military are highly respected in our society and rightly so.  This means that anyone who brings a USERRA claim is going to be sympathetic to a jury.  Moreover, USERRA issues most frequently arise in areas with a heavy military presence, meaning that any jury pool is likely to be full of individuals with military connections, familial or otherwise.  The offshoot is that USERRA litigation is inherently risky for employers.  The best approach is to make sure that any USERRA issues are handled properly and avoid litigation.

For assistance with military leave issues, contact any member of our Labor & Employment Group.