Given the tension that is starting to brew with our new regime and certain foreign governments, it is a good time for a brief overview of the Uniformed Services Employment and Reemployment Rights Act of 1994 since it applies to all public and private employers regardless of size.
What is USERRA?
USERRA prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military. Under USERRA employees maintain the right to be reemployed in their civilian job if they leave their job to perform service in the military service. If employees are eligible to be reemployed, they must be restored to the job, or a comparable job, and with the benefits they would have attained if they had not been absent due to military service.
Under USERRA, there are also some obligations imposed on employees. An employee must provide the employer with advance written or verbal notice of their service and have had five years or less of cumulative service in the uniformed services while with that particular employer. The employee must also return to work or apply for reemployment in a timely manner after their service has ended and have not been separated from service with a disqualifying discharge or for any reason other than honorable conditions. If any of these elements do not exist, the employee may lose the right to assert job and benefit protections under USERRA.
In addition, many states have imposed protections for those individuals who are out on military service and these laws do vary by state. You will also want to examine those laws before imposing any restrictions or rules on employees out on military service.
Employee Benefits under USERRA
As I alluded to in the prior paragraphs, in addition to job protection, benefits must also be maintained for an employee who leaves your workforce to perform military service. USERRA requires that the employee be able to continue their existing employer-based health plan coverage for them and their dependents for up to 24 months while in the military. Without going into great detail, generally USERRA mandates that individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for themselves and their dependents for up to 24 months. For military service of less than 31 days, health care coverage must be provided as if the service member had remained employed.
It is also important to note that if a covered service member does not elect to continue coverage during their military service, he/she has have the right to be reinstated in your group health plan when they are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.
All employers must be cognizant of legal issues which arise under USERRA. Probably the most important liability issue is individual liability. A federal district court held that those who violate USERRA may face individual liability even if they took the actions at issue in their official employer capacity.
In Bello v. Vill. of Skokie, 151 F.Supp.3d 849 (2015), a police officer who also was a staff sergeant in the United States Marine Corps Reserve sued his employer as well as several supervisors in their individual capacities, for violations of USERRA. The court expressly rejected the employer’s argument that several supervisors could not be personally liable under USERRA and held: "If the individual defendants are held liable for violating USERRA, the Court may enjoin them from implementing a discriminatory policy in the future, and it may require them to compensate Bello for the monetary damages he incurred.” HR managers cannot be fond of that holding.
USERRA contains a “for cause” standard of discharge for veterans who return to work after a month or more of military service. Therefore, the “employment at-will” relationship is somewhat altered for these service members. If a veteran’s service was between 30 and 180 days, he or she may not be discharged except for cause for six months following his or her return to work. Military members returning from more than 180 days of service are afforded protection from discharge for a full year. If a military member would be terminated within these timelines, an employer must produce evidence showing reasonable cause for its discharge of the employee and prove that the employee had notice that the conduct would constitute cause for discharge.
These litigation hazards always remain because USERRA has no statute of limitations. While I think it is ridiculous that a lawsuit can arise many years after any alleged incident, the courts do not agree with me. In 2012, a court allowed the plaintiff to proceed with alleged USERRA violations that occurred six and 18 years prior to the filing of suit. See Mock v. City of Rome, 851 F. Supp. 2d 428, 436 (N.D.N.Y. 2012).
Penalties for USERRA violations can result in the payment of lost wages and/or benefits. Attorney’s fees are also awarded to the prevailing party. In addition, liquidated damages may be available for willful violations.
Employers are required to provide to persons entitled to the rights and benefits under the USERRA a notice of the rights, benefits and obligations. Employers may provide this notice by posting it where employee notices are customarily placed or through other means of distribution such as hand delivery, mail or distributing the notice via electronic mail.
This short article greatly summarizes USERRA’s applicability, protections, employee and employer obligations and is only intended to provide a general overview. This article also does not discuss the potential interplay of USERRA with other federal laws such as the ADA or FMLA.
Finally, employers need to make sure that Human Resources and managers understand the broad applicability of the statute and the full range of obligations with regard to veterans.