USERRA Rights Of Military Personnel And Leave Rights Of Families

Published November 8, 2006

Military leave concerns not only employees enlisted in the armed services, but their family members as well.  Here's a rundown of the employment rights of both military personnel and their families afforded to them by the Uniformed Services Employment and Reemployment Rights Act (USERRA) and state statutes.

Protection For Service Members

Here are some highlights of USERRA.

Hiring: You may not deny initial employment because of an individual's military status or obligation to perform service. This means you may not refuse to hire an applicant because of his/her status as a service member or because he/she was called to duty and cannot begin working immediately.

Leave: A leave of absence may include time spent preparing for service; it is not limited to time actually spent serving. The Department of Labor (DOL) refused to place a limitation or prescribe a time frame on the amount of time that may elapse between the date an employee leaves his/her position and the date he/she begins service. It did cite examples of factors that influence the amount of time an employee may need, including: duration of military service; amount of notice received by the employee; and location of the service.

Reinstatement: Employees must be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites they would have attained had they not gone into the service, but instead had remained in their previous positions. The U.S. Supreme Court first labeled this as the "escalator position" back in 1946 when it said a returning service member "does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war."

If the employee's original position no longer exists, you must find a suitable position for the worker that reflects seniority, status, and pay as if the employee had been continuously employed. You must also provide training for the employee to become qualified for another position if the same or a similar one is not available upon his/her return.

Benefits: Employees must be afforded the same non-seniority based benefits given to those on a comparable form of leave. The DOL provides guidance on factors to consider in determining whether two types of leave are comparable, including: duration of leave; purpose of the leave; and ability of the employee to choose when to take the leave. It views the accrual of vacation leave as a non-seniority based benefit. If your policy for comparable leave does not provide for accrual of vacation benefits, then your military leave policy also does not have to provide it.

Termination: Reemployed individuals may not be discharged without cause for a certain period of time, depending on length of military service.

• Service up to 30 days — No protection from discharge without cause, but are protected from discrimination based on military service or obligation.
• Service of 31 to 180 days — Six months after the date of reemployment.
• Service of six months or more — One year after the date of reemployment.

Protection For Family Members

Going to war affects more than just the service members. To that end, some states have extended unpaid leave rights to employees whose family member has been called to service or has been injured or killed while serving.

Related Topic(s): Leave/USERRA - Uniformed Services Employment and Reemployment Rights Act