As a result of current world events, many employees have been called away from their jobs to serve in the United States Armed Forces.
Congress attempted to make it easier for them to return to their civilian lives when it enacted the Uniform Service Employment and Reemployment Rights Act of 1994. USERRA prohibits discrimination against individuals who serve or have served in the armed forces and governs the rights of those who have served when they return to civilian employment.
Generally, USERRA provides that employees who leave their jobs to serve in the armed forces are entitled to return to their civilian jobs in the position they would have had if their employment not been interrupted by military service.
USERRA permits an employee to serve a total of five years on active duty without loss of re-employment rights. However, military service leading to a discharge that is “other than honorable,” “undesirable,” for “bad conduct” or “dishonorable” terminates an employee’s re-employment rights.
An employee must apply for re-employment after service in the military ends. The time within which an employee must apply depends upon the amount of time served in the military.
Generally, employees must apply within the following time periods: If they served 30 days or less, they must apply at the beginning of the workweek following the end of the service period; if service was at least 31 days but less than 181 days, they must apply within 14 days of the end of service; and those who served more than 180 days have 90 days from the end of service to apply.
Upon satisfactory completion of the employee’s military obligations and after application for re-employment, the employee must be put into the position that he or she would have had if employment had continued without interruption.
This request can be thought of much like an escalator — an employee gets back on the escalator at the same step he or she would have been on if not for military service. This could be the pre-service position, a better position, an inferior position, or, if the employee’s position was eliminated as a result of a reduction in force, no position at all.
If a disability is sustained or aggravated during military service that prevents the employee from performing the job which he or she is entitled to, the employee must be offered a position of like seniority, status and pay for which he or she is qualified or could become qualified through “reasonable efforts” on behalf of the employer.
An employee who is re-employed after military service may not be terminated except for cause. The length of time an employee receives this extra job protection depends upon the length of military service as follows: 30 days or less, no restriction; at least 30 days but less than 181 days, 180 day restriction; more than 181 days, one year restriction.
This is just a brief overview of the issues involved when an employee returns from military leave. Because there are many pitfalls employers can encounter, it is a good idea to discuss re-employment issues with employment counsel. Steven R. Miller is an attorney in the Cincinnati office of Vorys, Sater, Seymour and Pease LLP, where he practices in the labor and employment group. He can be reached at (513) 723-4039 or by visiting www.vssp.com.
