Military pay often exceeds what service members would earn in their civilian jobs.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.

Acknowledgment

Special thanks to Matt Nieman for his assistance on this article. He can be reached at [email protected]

In 1994, statutory reemployment rights for military members were revised with the signing of the USERRA, 38 U.S.C. §§ 4301-4333. Like its predecessors, the USERRA guarantees the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.

Employer Obligations to Employees Requesting Military Leave

In general, employers must provide the following to covered employees who are not in temporary positions.

• An unpaid leave of absence for a period not to exceed 5 years to perform any form of military service, whether voluntarily or involuntarily, called or activated, such as being placed on active duty, for annual training, and for training weekends. In addition, many leaves for military service can be exempted from this 5-year limit, including both involuntary and voluntary activations. A cautionary note regarding the leave being unpaid: Under the Fair Labor Standards Act, if an exempt employee works any part of a week, the salary for the entire week must be paid. Therefore, if an exempt employee works any part of a week, then spends the rest of the week in military service, the salary for the entire week must be paid. However, in that case, the amount of the military pay for the week may be offset against the salary.
• While on leave, the employee is entitled to those rights and benefits not determined by seniority and generally provided to individuals of similar status on a leave of absence. A cautionary note is to be cognizant of other paid leave provided to employees during nonmilitary leaves of absence (e.g., jury duty, sick leave, etc.). While presently unsettled in the courts—if deemed comparable in nature—USERRA could extend those pay benefits to absent service members.
• Upon return from leave, prompt reinstatement to the position that the employee would have held if his or her continuous employment had not been interrupted (the "escalator principle"). This obligation includes making a reasonable effort to train the employee to make him or her qualified for the escalator position. If the employee cannot be made qualified, the employee must be returned to the position he or she occupied when going out on leave.
• Upon return from leave, all seniority and seniority-based rights and benefits as if the employee had remained continuously employed. Typical benefits covered under USERRA would include vacation allowances, pension credit, and 401(k) contributions, including the potential right to an extended period to "make up" contributions—and any matching employer contributions—the service member could have made during the military leave period.
• Continuation of medical benefits under the same terms and conditions as when actively employed if military service is less than 31 days.
• Continuation of medical benefits during the leave under terms similar to those under the Consolidated Omnibus Budget Reconciliation Act.
• Protection from discharge upon return to work except for cause for a period of time depending on the length of military service.

Employee Obligations to Employers under USERRA

To be entitled to these benefits, employees must do the following.

• Give timely notice of their need to perform military service except as required by military necessity or unless impossible or unreasonable.
• Apply for reemployment within a set time after release from military service. In the case of service of fewer than 31 days, the individual must normally return to work on the first workday after release from military service. In the case of service lasting between 31 and 180 days, the individual must normally reapply within 14 days after completing active service. In the case of service lasting more than 180 days, the individual must normally reapply within 90 days after the completion of service.
• Be released from active military service under honorable conditions (with an honorable or general discharge).

Other Issues

USERRA also prohibits discrimination against service members in employment and provides training obligations for employers under certain circumstances. Employers do not have to reemploy a returning service member if "the employer's circumstances have so changed as to make such reemployment impossible or unreasonable." In addition, employees hired for a brief, nonrecurring period without a reasonable expectation that employment will continue indefinitely or for a significant time are not entitled to reinstatement rights.

It should be noted that some states provide additional rights to returning employees. Those rights may be more extensive than those under USERRA.

Frequently Asked Questions

What if an employee volunteers for military service? USERRA does not distinguish between how someone is ordered to perform military service. Employees are protected regardless of whether they volunteered or were ordered involuntarily to active duty.

Must an employer pay an employee while he or she is on active duty? USERRA does not require employers to pay employees while on military leave. Some employers voluntarily have policies that make up the difference between military pay and allowances and an employee's regular pay. Employers should review such policies to ensure that the extent of these obligations is consistent with current business objectives and that they include sufficient detail as to how this "differential" will be calculated. If an exempt employee works any part of a week, then spends the rest of the week in military service, the salary for the entire week must be paid. However, in that case, the amount of the military pay for the week may be offset against the salary.

Can an employer require an employee to use earned vacation time while performing military service? No, employees are entitled to the use of earned vacation while on leave but may not be required to do so.

What is the "escalator principle"? Employers must treat returning service members as if they had remained continuously employed for purposes of the position as well as pay and benefits to which they return. For example, if similarly employed individuals who joined the company in 2018 currently earn $25 per hour, then a similarly situated returning service member who joined the company in 2018 should be paid $25 per hour even if he or she had been on active duty for extended periods during that time. As another example, if an apprentice electrician left the company for active military duty in 2019 and returned in 2021, the employee might be entitled to a position as a journeyman electrician.

What about employees serving in the National Guard? National Guard members sometimes perform federal service (e.g., during annual training) and sometimes perform state service (e.g., during some disasters). USERRA only applies to National Guard members performing federal service, but many state laws afford similar protection to individuals performing state service. To determine compliance obligations under these circumstances, employers should obtain a copy of the employee's orders and consult with an attorney.

Is there a limit on the length of military service under the USERRA protections? Under USERRA, employees are only entitled to protection during cumulative periods of military leave of up to 5 years, but there are many exceptions to this general limitation. For example, leave time for active duty by order of a presidential declaration would normally NOT count as part of the 5-year period.

Please note: This summary is provided for informational purposes only and is not rendered as legal advice. Employers should consult counsel of their own choosing for advice about a specific situation or problem. For more information concerning employer obligations under USERRA or state military leave laws, you may contact the following Jackson Lewis attorneys: Paul Siegel in the Long Island, New York, office at (631) 247–4605 and Matt Nieman in the Jackson Lewis Washington, DC, region office at (703) 483–8331 or the Jackson Lewis attorney with whom you regularly work.

Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

What is the definition of a high performance work system?

What is a key element of high performance work system?

Which type of incentive plans are used to reward individual performance?

What is a key element of high performance work systems quizlet?