USERRA – Part III
When a Military Service Member Has Returned
This final installment of our USERRA series will examine what districts must do upon a military service member’s return to employment. We will examine these obligations by focusing on how to properly place the returning serviceperson back into the employment position that they would have had but for their military duty.
Prompt Reemployment
USERRA requires that returning service members must be reemployed promptly. However, USERRA does not define “prompt” or establish a time frame for districts to follow. The Department of Labor applies a reasonableness standard in determining whether a service member has been promptly reemployed. Generally speaking, service members returning from short term inactive or active duty such as weekend drills or two week annual trainings are expected to be returned to work immediately.
With regard to service members who have been gone several years, employers may have a week or two to reemploy them. In determining whether the period is reasonable, it is measured from the date that the employer first learned that the service member would return on or around a specific date. For example, service members notifying the district they would be separating from military service a month prior would be entitled to immediate reemployment upon presenting themselves at the district.
Escalator Principle
Returning service members are entitled to the position they would have held but for their military service. The “escalator principle”, as it is known, is rooted in the employee’s seniority. The underlying theory of the escalator principle requires that a returning service member step back on to the seniority escalator at the point the person would have occupied if the person had remained continuously employed. If, while on military duty, the employee would have been promoted, received a pay raise, become entitled to benefits based on employment longevity, additional vacation or receive some similar employment action or benefits, then the employee must be given that favorable personnel action or benefit when he or she returns. This means, for instance, that a teacher employed on a probationary contract who is called to active duty during the school year and who returns to the district two-four years later will likely be employed on a term contract upon return and at the salary step at which the person would have been if there had been no call to active duty, as well as the accumulation of state and local leave that would have been provided (see Benefits below).
For what it’s worth, the escalator principle works in both directions. Just as an employee is entitled to a favorable employment action under the escalator principle, an employee may also get an unfavorable one. For example, if an employee would have been reassigned, demoted, or suffered a pay cut had he been present in his employment, then on his or her return, those personnel actions will be effectuated. However, it should be noted that the escalator principle is only applicable where a specific personnel action would have occurred. Personnel actions that are discretionary do not qualify for the escalator principle.
A word of caution here, labeling a personnel action discretionary does not, by itself, prevent the escalator principle from applying. If the service member is able to show that the benefit or personnel action was regularly provided, taken on a near universal basis, or where it is reasonably certain that the service member would have obtained the benefit, the principle is applied.
Reemployment Obligations
Except with respect to persons who have a disability incurred in or aggravated by military service, USERRA provides that the position into which a person is reinstated is based on the length of a person’s military service and it sets out a specific schedule for districts to follow when employees have been absent because of military service. The following is the how to place an eligible person in a job based on length of service.
1 to 90 days. Returning service members must be placed in positions in the following priority.
(1) The position the service member would have held had he or she remained continuously employed, so long as the person is qualified or can become qualified after reasonable efforts by the district to qualify the person. The district does not have the option of placing the returning service member in other jobs of equivalent seniority, status or pay.
(2) The position in which the person was employed on the date of the commencement of the military service only if the person is not qualified to perform the duties of the position referred to above after reasonable efforts by the district to qualify the person. The district does not have the option of placing the returning service member in other jobs of equivalent seniority, status or pay.
(3) If the employee cannot become qualified for either positions described above, the person is to be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is able to perform, with full seniority.
91 or more days. USERRA requires districts to promptly reemploy person returning from military duty of 91 days or more in the following priority.
(1) The position the service member would have held had they remained continuously employed, or a position of like seniority status and pay, so long as the person is qualified or can become qualified after reasonable efforts by the district to qualify the person.
(2) The position in which the person was employed on the date of the commencement of the military service or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of the position referred to above after reasonable efforts by the district to qualify the person.
(3) If the employee cannot become qualified for either positions described above, the person is be reemployed in any other position that most nearly approximates the above positions (in that order) the duties of which the employee is qualified to perform, with full seniority.
Service Member with Disabilities. USERRA requires districts to follow a reemployment procedure when reemploying service members who were injured or aggravated existing injuries during military service. The following is the scheme that is required:
(1) The district must make reasonable efforts to accommodate a person’s disability so they can perform the job they would have held if the person had remained continuously employed.
(2) If the employee is unable to perform the duties with an accommodation in (1) above because of his or her disabilities, the employee must be placed in a position of equivalent seniority, status, and pay, if he or she is qualified or could become qualified for the position.
(3) If the person does not become qualified for the position in either (1)
(2) above, the person must be employed in a position that is consistent with circumstances of that employee’s situation and most nearly approximates the position in (2) in terms of seniority, status and pay.
It should be noted that districts are not required to create a position as an accommodation, but must make reasonable efforts to train the employee for the new position.
Limitations on Discharge
USERRA also provides service member employees with limited protection from discharge after returning from military service. This provision protects military personnel from immediate unemployment upon their return. If an employee was on military leave for 31 to 180 consecutive days, they may not be discharged, except for cause, for six months after the date of reemployment. Employees who were on military leave of 181 days or more of continuous service may not be discharged for one year after their reemployment without cause. Employees who serve for 30 days or less are not protected from discharge without cause.
Benefits Upon Return
Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have received with reasonable certainty had they remained employed. A right or benefit is seniority-based if it accrues with the length of employment. The benefits include things that accumulate as a result of the person’s employment. The following are various benefits that districts need to consider and apply to returning military employees:
Pension/retirement plans –The military service must be considered service with the employer for vesting and benefits accrual purposes. The district is responsible for funding any resulting obligation. An employee is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions. Additionally, the repayment of contributions can be made over three times the period of military service but not longer than five years total. For purposes of determining the district’s liability or an employee’s contributions under a pension benefits plan, the employee’s compensation will be based on the rate of pay the employee would have received had he or she not been absent for military service.
Health benefits – USERRA provides for health plan continuation for military employees and their dependents. If the employee’s health plan coverage would terminate because of a military service absence, the employee has the right to elect to continue health plan coverage for up to 24 months after the military absence begins or for the period of the service (plus the time allowed for application of reemployment), whichever period of time is shorter.
Additionally, the employee cannot be required to pay more than 102 % of the full premium for the coverage. If the military service is for 30 days or less, the employee cannot be required to pay more than the normal share of the premium. Finally, upon reemployment, a waiting period or exclusion cannot be imposed upon reinstatement of health plan coverage of any person who coverage was terminated due to military service unless an exclusion or waiting period would have been imposed absent the military service.
Vacation pay – Military employees are entitled to the accrual of any vacation and/or sick leave upon reemployment as if they had never left. Employees must also be permitted to use any vacation that had accrued before the beginning of their military service instead of unpaid leave. Additionally, service members cannot be forced to use vacation time for military leave.
A USERRA Violation
There is no time limit or statute of limitations on a USERRA violation. Basically, an employee can bring a USERRA claim years and years after an alleged violation has occurred. An employee has the right to file a complaint with the Veteran’s Employment and Training Service (VETS) of the Department of Labor. VETS investigates complaints and if valid, attempts to resolve them. USERRA grants VETS the right of access to examine and copy any documents of the employer that it believes is relevant to the investigation. VETS also has the right to interview persons with information relevant to the investigation. Additionally, VETS has the authority to subpoena the attendance and testimony of any witnesses and the production of any documents relevant to the investigation.
Employees whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the U.S. Attorney General for possible court action. The Attorney General can file a court action on the military employee’s behalf if the complaint is determined to be valid. Employees also have the right to privately file a court action. A word of caution here, an award of back pay or benefits may be doubled in cases where the violations are determined to be willful. USERRA also allows for the award of attorney’s fees, expert witness fees and other litigation expenses to prevailing employees who retain private counsel.
This concludes the series on USERRA and its requirements for school districts. The best approach is for districts to closely analyze each employee’s individual military service situations and determine the required appropriate actions on a case by case basis. As always in matters when the district may face liability, it is prudent to work through the return of a service member with your attorney. And of course if your district were to receive a USERRA complaint, it is wise to contact your district’s counsel for advice on how to proceed and defend against the action.
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