President Bush’s recent announcement of his intention to send additional troops to Iraq has brought renewed focus to the obligations of employers under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Under this law, employers have certain obligations to employees who are forced to leave employment for military service. The law is complicated, and if you are faced with an issue under this law, you should consult with your legal adviser. Here is a short overview of your obligations:

Eligibility for Reemployment Rights

USERRA extends reemployment rights for up to five years to individuals who are absent from employment on account of military duty in the uniformed services. The term “uniformed services” includes not only the Army, Navy, Marine Corps, Air Force, or Coast Guard, but also any of their reserve units, including the Army National Guard, the Air National Guard, members of the Commissioned Corps of the Public Health Service, and any other category of person designated by the President.

The term “service” includes active duty, active duty for training, inactive duty training, full-time National Guard duty, absence from work for an examination to determine a person’s fitness for duty, and funeral-honors duty by National Guard or reserve members.

In order to be eligible for reemployment rights and restoration of employment benefits, the employee must have provided you with advance notice (written or verbal) that he or she was leaving the job for military duty. In addition, the period of military duty while the person is your employee must not have exceeded five years. Finally, the individual must be released from service under honorable conditions and must report back for reemployment in a timely fashion.

Deadline for Reporting Back to Work

The amount of time after discharge that the employee has to request reemployment depends upon the length of the employee’s military service. For example, if the military service of the employee was less than 31 days, the employee must report for work on the first regular work day following completion of service, or if that is impossible or unreasonable, then as soon as possible. An employee who was in service for more than 30 days but less than 181 days has up to 14 days following discharge to report to work. If service is more than 180 days, the employee has up to 90 days to report.

Employee’s Rights to Pay and Benefits

An employee who returns to your employ within 90 days is entitled to his or her old job. An employee who is gone more than 90 days is entitled to his or her old job or a job having similar seniority, status, and pay that the employee is qualified to perform. The employer has an obligation to provide reasonable training in these circumstances. In applying these rules, a rule called the “escalator principle” applies. This is a requirement that the returning employee is entitled to the position and pay level that the employee would have had if employment had continued uninterrupted.

In addition to guaranteeing reemployment, the employer is obligated to restore benefits including health-insurance coverage, without any waiting period or exclusion for pre-existing conditions other than those that would otherwise apply. However, illnesses or injuries incurred or aggravated during military service cannot be excluded as pre-existing conditions. There are also protections for retirement benefits. These rules primarily affect defined-benefit pension plans and 401(k) plans.

If an employee has been absent for military service more than 30 days, the employee cannot be terminated from employment without cause for 180 days. If the employee was absent for more than 180 days, the employee cannot be terminated without cause for one year.

As you might expect, the law also protects employees who attempt to enforce their rights under USERRA from any discrimination or retaliation by the employer.

Exception for ‘Changed Circumstances’

Fortunately, the law does recognize that some employers will find it unduly burdensome to comply with these requirements. Thus, the law provides an exception in the case of “changed circumstances.” An employer is not required to reemploy a returning veteran if the employer’s circumstances have changed to the extent that reemployment would be impossible, unreasonable, or would impose an undue hardship on the employer.

Penalties for Violations

The penalties for violating this law can be severe. An employer can be ordered to reinstate an employee with monetary damages, including back pay and benefits. In addition, the employer can be forced to pay the employee’s attorneys’ fees, expert witness fees, and court costs. In the case of eight “willful” violations, double damages can be awarded.

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit www.healthlaw.com, or call 440-835-0600.

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