By Frank Foster

USERRA guarantees reemployment of the veteran as does an untested Missouri statute, (see section of 41.730-3 RSMo which creates a misdemeanor if its provisions are violated).  Section 105.270-3 RSMo also refers to criminal misdemeanor for retaliatory personnel actions against public employees for having taken military leave.  USERRA applies to any sized employer.  Missouri is also one of forty states that require state agencies and political subdivision employers to grant 120 hours paid leave per each federal fiscal year for the employee’s military service (105.270-1 RSMo).

1. Does the statute cover National Guard and Reservist’s service? YES

USERRA defines the uniformed services as the Army, Navy, Marine Corps, Air force, Coast Guard and the commissioned corps of the Public Health Service.  It includes the Army National Guard and the Air National Guard.  Section 105.270 RSMo includes reservists.  The President can expand the list in times of national emergency (38 USC 4303(16). Under the “Total Force Policy” the nation is more dependent on National Guards and Reservists units than ever before with such units comprising one half of the nation’s military personnel pool.

2. Well “service” surely would not include inactive duty training exercises? Yes it does!

“Service” means performance of active duty, active duty training, any training while on inactive duty, serving while being assessed whether fit for military duty and funeral honor guard duty.

3. Well my employee volunteered.  Surely USERRA is not triggered by voluntary military service?  No, it applies to Voluntary service too.

The term “service” means service in the uniformed services in the performance of duty regardless whether such duty is voluntary or not voluntary.

4. My employee gave me no notice whatsoever, surely I do not have to keep his spot open or pay the 120 hours?  Wrong you do.

Congress recognized that the employee service person may well have little or no notice him or herself and lateness of notice to the employer should not defeat the right to reemployment.  So neither the statute and nor the new regulations do specify any specific time frame for the advance notice requirement, though you are entitled to some notice (38 USC 4312(a)(1)) and it may be oral and not necessarily written.

5. The Reservist or National Guard member did not provide me with a copy of his/her orders.  I am off the hook right? No.

It is a common misperception that the employee must provide an actual copy of the official orders.  USERRA imposes no such requirement. (However see question 8 below relating to pubic employment and getting paid by the employer).

6. I have an employee who is taking lots of time off for military training and service.  Surely I can veto this under some undue hardship to the employer theory right?  No.

The employee is only required to give you notice, and does not have to obtain the employer’s permission (see 42 USC 4312(h)).  You can attempt to contact the employee’s Commanding Officer to see if something can get rescheduled.  It is Department of Defense policy to work cooperatively here but there is no requirement that the employer’s needs be absolutely respected.  Military necessity takes precedence.

7. We are a small service. We have a policy that if you can not make your scheduled shift you are responsible for finding a replacement.  Can we impose such a duty on a Reservist prior to taking the military leave? No.

The employee is responsible only for giving you notice.  Under USERRA you can not impose a duty of finding a replacement as a condition of honoring the mandatory reinstatement rights.

8. Am I required to pay the employee for the period that he or she is away from work performing military service?  Private employer-no, but local government employer- yes.

USERRA does not require pay for time missed from work.  However, under Missouri Law public employees under section 105.270-1 RSMo must experience no loss of time, pay, regular leave, or other benefits up to 120 hours of military leave per each federal fiscal year.  I interpret this provision as having to pay the employee in accord with his/her usual schedule of work and not automatically up to hundred and twenty hours for each hour while on duty.  I think this is what 105.270-4 RSMo added in 2002 is trying in an unartful way to say.  However, I also interpret that the full regular rate of pay must be paid and not just some net between the military pay and the regular rate of pay.

For an “exempt” employee like a salaried administrator, the Fair Labor Standards Act prohibits deductions from the salary for being on military duty (see 29 CFR 541.602), but here (unlike nonexempt hourly employees) the employer can net the from the salary that would have been otherwise owed to the employee, the military pay that he or she earned.

9. So if I am a public employer I will have to pay the employee something.  I will minimize the cost impact by assessing his military leave against his earned vacation.  That will work right?  No

If the employee wants to use his earned paid vacation time (employees of private employers would have an incentive to do this but not employees of public entities per the  105.270 RSMo payments and question 8 supra), he/she can do so.  However, the employer can not require that the employee charge his/her military leave to his/her vacation benefits (see 38 USC 4316(d).     

10. What about other benefits?  If seniority based they accrue as if he employee had never left.

USERRA makes a strong distinction between benefits that accrue on the basis of the passage of time and those that do not (38 USC 4316(a)-(b)(1)(B)).  If it is length of service based (20 CFR 1002.212) then things like vacation benefits get earned just as if the employee never left! 

On health insurance if the length of military service is less than 31 days, the employer must maintain the health insurance as usual with the employee contribution if any remaining the same.  If the length of service is longer than 31 days, then the employer treats it like a COBRA continuation situation with a premium permitted (not required) of up to 102% of the cost of the entire premium including the usual employee share if any.

USERRA is very aggressive in protecting pension/retirement benefits (38 USC 4318 & 20 CFR ss 1002.259-267).  USERRA leave is not a break in service under such plans.  Leave time must be considered service for vesting purposes and the employer must fund any resulting obligation.  The employee however, is required to make his/her contribution to the plan if so as usually required by the plan.  The employee has three times his/her USERRA leave up to the five year maximum USERRA leave to catch up with any unpaid employee contributions.

11.  After a military USERRA leave how quickly must the employee return to work?  It depends on the length for the USERRA leave.

If the period of service is less than 31 days, the employee is required to report for work “not later than the beginning of the firs regularly scheduled work period on the firs calendar day following the completion of the period of military service and th expiration of eight hours after allowing for a safe transportation back to his/her place of residence (38 USC 4212(e)(1)(A)(i)).  If the reporting within that time period or is impossible through no fault of the employee (automobile accident for example), the employee is required to report as soon as possible thereafter (38 USC 4212(e)(1)(A)(ii)).

For periods of 31 to 180 days of military service, the employee has 14 days to submit an application for reemployment.

For periods of military service beyond 181 days or more the application is due within 90 days (38 USC 4312(e)(1)(D)).

All of these deadlines may be extended to two years if the individual is hospitalized or convalescing for a service connected injury or illness (38 USC 4312(e)(2)A)).

12. My employee was one day late on submitting an application for reemployment.  I have got him! I do not have to reinstate right?  No, wrong!

An employee who misses a deadline does not automatically forfeit his/her right to reinstatement.  Rather the usual sanction of the employer for a one day absenteeism would apply not a total forfeiture of USERRA rights (38 USC 4312(e)(3).  For example if the usual sanction for one day absenteeism is a one week suspension, then the USERRA employee can not be singled out for a more harsh sanction.

13. What does it mean to “submit an application for reemployment”?  Without a Procedure it can be very informal.

On the one hand the new regulations permit the employer to insist on an application for leaves more than 30 days (see new regulation 20 CFR 1002.115).  However, without a procedure in place oral requests are sufficient.  No magic words are required.  The request can be made to anyone with apparent authority to process reemployment.   So the employer must be on guard for such requests as failing to respond in itself can be a violation (see Vander Wal v Sykes Enter, 327 F. Supp.2d 1075 (D.N.D., 2004)).  In latter case compensatory damages were awarded even though the employee was ultimately re-employed.

It is also clear that the veteran has a right to re-employment so you can not treat the applicant entirely as a new employee via the “reemployment applicant procedure”.  However, through negotiations on the special needs and responsibilities of EMS employers, I have gotten the DOL to agree to the pre-requisite of drug testing and physical fitness testing for duty as condition for re-employment.

14. I do not have any openings right now.  I can wait until there is one before having to put the employee back to work right?  No.

If the period of service was less than 31 days, and if the person shows up at the start of the shift on Monday, the employer must put the employee back on the payroll immediately.  If the period of service was 31 days or more, you are required to act promptly upon the application for reemployment.  The Department of labor says this should be a matter of days and not weeks or months.

15.  The employee who left was shift supervisor.  I had to fill the position to maintain orderly supervision and effective management within the organization.  The replacement worked out great.  Surely I do not have to bump this effective supervisor when the employee returns?  Wrong you do!

The right to reemployment is not contingent upon the existence of a vacancy.  Despite the potential hardship on the employer and the new supervisor the law requires displacement.

16. I know how I can get around this problem of embarrassment and confusion.  I will keep the new supervisor in his/her place since he/she is doing so well and I will simply pay the returning veteran the same amount of money! That’s fair and that will work right?  No, the returning veteran is entitled to the status and not just the pay!

If you just make the returning former supervisor employee a street medic and not a supervisor, even if you make up for the differential in pay, you are still in violation of USERRA (see Ryan v. Rush-Presbyterian-St. Luke’s Medical Center, 15 F.3d 697 (7^th Cir. 1997)).

17.  Well our service has a union and surely a returning veteran doe not get his old shift back as the union has already assigned the best shifts according to the Memorandum of Understanding’s terms on seniority.  The Union contract prevails over the veteran’s assertion of rights correct? No.

As stated previously the returning service member must be reinstated with pay, benefits, rights, and duties of the original position (see 38 USC 4316(a)).  If the position has received an escalated pay raise the returning service member gets that as well.  Merit raises are based on having qualified for prior merit increases (see 29 CFR 1002.236).  If the raise is based on taking an examination the returning service member must be given a reasonable period of time to take that test or examination (see 29 CFR 1002.236).

The statute trumps Union contracts so the returning service person has a right to the same shift back and can bump others who stepped in under Union rules of seniority.

18.  Having a service member on the payroll appears to be costly and a big hassle.  I will just not hire people with reservists or other commitments?  Wrong, liability breath!

Welcome to another “suspect criteria” in the employment field.  Discrimination in hiring is unlawful as well a discrimination against service people in regard to promotions and benefits (38 USC 4311).

19.  Well, you have forced me to take this guy back.  You get bet I will be developing a file on him and he will be out of here within a few weeks right?  Wrong, liability breath!

Once a returning service member is reinstated via USERRA leave, the employee is protected from discharge except for “cause” (see 20 CFR 1002.247).  The length of leave depends on the length of service (six months for 31-180 days of service; one year for 181 + days of service).  The employer has both the burden of going forward with the evidence and of ultimate persuasion that the dismissal was indeed for cause (see 20 CFR 1002.248).  In fact the employer not only has to show that the discharge was reasonable but also that the discharged service member had actual notice that the conduct in question was a dismissible offense (see 20 CFR 1002.248).  If your policies and procedures in general are not in order, you as the employer most likely will have an impossible burden of proof.  Merely alleging poor performance likely will not meet this burden of proof.

20.  I just hired the guy.  He is till a probationary employee.  Surely I do have to hire this person back?  Wrong.

Well true temporary employees hired to fill a temporary gap in the work force do not have to be hired back (38 USC 4312(d)(1)(A).  However, the courts interpreting USERA have ruled that probationary employees, apprentices, and trainees are not classified as temporary for purposes of the statute if their position automatically or at least routinely is transformed over time to a permanent position (see Brickner v. Johnson Motors, 425 F2d 75 (7^th Cir. 1970)).

21.  What if I just had a big chunk of my district de-annexed or I just had a major negative adjustment to my Medicare reimbursement and it just is going to be impossible to rehire the service member?  Am I off the hook?  May be.

The statute recognizes an extreme change in circumstances exception (see 38 USC 4312(d)(1)(A)), as do the courts.  However, the change must indeed be extreme(see Carr v. RCA Rubber Co., 609 F.Supp. 526 (N.D. Ohio 1985)(acquisition without a plant closing not a sufficient change in circumstances). Like the ADA (Americans’ With Disabilities Act) USERRA also has an undue hardship on the employer provision, but unlike the ADA this provision has no court interpretation to guide us (38 USC 4312(d)(1)(B)).  Of course the burden of proof here is going to be on the employer and would have to be raised as an affirmative defense.

22.  What if my employee decides to make a career out of the military how long out does the statute provide protection for reinstatement? Five years.

The cumulative absences for military service can not exceed five years (38 USC 4312(a)(2)), and of course the service member if not in the reserves must receive an honorable discharge (38 USC 4304).

23. Before my employee service member left for duty, he/she gave me notice early prior to departure, but then worked for another employer on an interim basis.  My service is off the hook as no longer the primary employer correct?  Wrong.

Well at least the new regulations provide some clarity.  The new regulations recognized that this sort of interim employment while awaiting official orders would be a common need of service people so the interim employment does not disqualify the employee to reinstatement (see 20 CFR 1002.120).

24.  My service person left early and specifically stated he wanted his position filled and that he/she wanted to make a career of the military.  Does a principle of waiver apply to USERRA?  Well theoretically the employee can waive his/her rights by expressing an intent to pursue a military career, but because USERRA is remedial, such waiver s must be strictly construed and the burden of proof his on the employer.

An individual can waive his/her re-employment rights under USERRA.  Evidently there is a conflict among the federal circuits on the degree of specificity required for the waiver (see Wrigglesworth v. Braunbaugh, 121 F.Supp2d 1126, 1131-2 (U.S. Dist. W.D. Mich. Southern Div. 2000)).  Our circuit (the Eighth Circuit) is instructive and the applicable one.  If there is no request for leave and a clear intent exists to pursue a military career the waiver of reinstatement rights can indeed occur (see Palsey v. City of Minneapolis, 79 F3d 722,724 (8^th Cir. 1996).  Evidently the failure to request a leave of absence is a highly relevant factor (see Dowling v. Office of Personnel Management, 393 F. 1260, 1262-3 (Fed. Cir. 2004)).  Both the VRRA and USERRA distinguish between career and non career military service, and a resignation can result in a loss of re-employment rights (see Moravec v. Office of Personnel Management, 393 F3d 1263,1267 (Fed. Cir. 2004) relying on Kizka v. Office of Personnel Management, 372 F.3d 1301, 1306 (Fed. Cir 2004));(see also Woodman v. Office of Personnel Management, 258 F.3d 1372, 1378 (Fed. Cir. 2001)); Whitehead v. Oklahoma Gas and electric Co., 187 F.3d 1184, 1192 (10^th Cir. 1999); and Leonard v. United Airlines Inc., 972 F2d 155,159 (7^th Cir. 1992) (Resignation and waiver were valid under Vietnam Veterans Readjustment Act of 1974, as well).

However, the employee is not required to tell advance whether he or she will be seeking reemployment (20 CFR 1002.88) and the waiver will be narrowly construed by DOL and the courts, the employee’s intent must be clear and specific, and the burden of proof will be on the employer.

Conclusion:

War is expensive.  Karl Marx’s theory of economic determinism as the cause of warfare is only partly true.  Some wars are fought for economic reasons.  Colonial wars in order to acquire natural resources or when two peoples want the same land are obviously fought for economic reasons.  The U.S versus the Native Americans in the nineteenth century or the Palestinians versus the Israelis are examples that come to mind.  However, in most other circumstances warfare is such an obvious loser it can only be explained in terms of fear and anxieties (Iraq’s weapons of mass destruction) or self esteem and ideological need (spread democracy and free markets).

The Iraq War has cost about $595 billion and is growing by $50 billion per month.  But that is just the direct costs.  Welcome to one of the many hidden costs.  USERRA requires you to keep that position open for the returning service person, and the costs for violations can be DOUBLE the unpaid back pay for intentional violations plus attorney fees.  So please be careful and do the right thing.