On December 19, 2005, eleven years after Congress enacted
the Uniformed Services Employment and Reemployment Rights Act of 1994, as
amended (“USERRA”), the U.S. Department of Labor issued final regulations under
USERRA which became effective January 18, 2006. The final regulations can be found at 20 Code of Federal
Regulations (CFR), Part 1002. The
DOL suggests these final regulations do not impose any new obligations on
employers, but rather, serve as an implementation of the statutory
requirements, as well as to clarify and interpret areas of the law. However, these regulations, the first
ever issued under USERRA, turn the internal guidance of the DOL into binding
With nearly half a million uniformed service personnel being
called upon by the Government to assist with the War on Terror since 2001, many
employers have been or will be faced with returning service members. As these individuals return to the
workplace after being called to assist the Country in its darkest hours, the
burden is on the employer to comply with USERRA. Specifically, the new regulations provide, consistent with
the U.S. Supreme Court’s interpretation of USERRA’s predecessor statute, “This
legislation is to be liberally construed for the benefit of those who left private
life to serve their country… [and] … no practice of employers … can cut down
the service adjustment benefits which Congress has secured the veterans under
the Act.” Fishgold v. Sullivan
Drydock and Repair Corp., 328 U.S. 275, 285
The original purpose of USERRA was, and still is, to
encourage non-career service in the uniformed services and protect the rights
of persons who voluntarily or involuntarily leave employment positions to
undertake military services. In
bringing this mission forward, the legislation’s goals are to assist in
minimizing disruption in the lives of those performing duties for the Country,
and to prohibit discriminating against a person because of his/her activities
in the uniformed services. In
effectuating the principles, USERRA and the newly-created regulations protect
the rights and benefits of uniformed service persons with regard to his/her
employment, as well as securing re-employment for the individual.
The newly effective regulations are extensive. Accordingly, this article will provide
a brief overview of the most frequently raised issues. Although no published cases (as of the
writing of this paper) have implemented the new regulations, this paper will
provide a brief review of certain recent cases interpreting USERRA in the
Federal circuit courts and district courts.
Employees Covered Under USERRA
USERRA is applicable to any employee who is engaged in
active duty, inactive and/or active training, National Guard duty, and absences
for examinations, funeral duties, and examinations for purposes of determining
if an employee can qualify to become a uniformed service member. Applicants for employment are also
covered under USERRA. An
employee’s status as full-time or part-time, management or non-management,
exempt or non-exempt are of no relevance to the applicability of USERRA.
Independent contractors are not covered under USERRA, nor
are some temporary employees whose work is brief, nonrecurring and without an
expectation that the employment will continue on an indefinite or significant
period. In determining whether an
employee is classified in this limited exception, employers must remember the
law is to be interpreted in a broad manner to protect employees.
Employers Covered Under USERRA
The regulations re-affirmed the provisions of USERRA
regarding what type of employers are required to provide USERRA protections to
employees. Essentially, USERRA is
one of the largest reaching employment laws in the federal system—both in
its covered subjects and its reach among employers. Simply stated, unlike other statutes that protect against
discrimination (i.e. Title VII),
continued medical coverage (i.e.
COBRA), and leave protections (i.e.
FMLA), USERRA has no minimum threshold number of employees to subject the
employer to providing the protections of the statute. Rather, USERRA applies to all public and private employers in the U.S., regardless
of size, as well as foreign employers that have a physical location in the
U.S. The statute also applies to
government employment, including public schools, public health care providers,
and state, city and municipal government employees.
Employer’s Notice Requirement To Employees
The posting requirement originally publicized in March 2005
under the Veterans Benefits Improvements Act of 2004, has been incorporated in
and revised by the final DOL regulations.
Specifically, the regulations (and revised posting) extend protection
beyond traditional military service to include individuals engaged in services
with the National Disaster Medical System (“NDMS”). The NDMS is a section within the U.S. Department of Homeland
Security which supports Federal agencies, including FEMA, in the management and
coordination of the Federal government’s response to major emergencies and
federally declared disasters.
Individuals in the NDMS are professional and para-professional
volunteers who may be called to duty or training in response to public health
emergencies, and as such are considered to be serving in the uniformed services
for purposes of USERRA. Employers
should ensure the latest version of the posting, which now includes language
providing for protection of individuals of the NDMS, is being used at the
Discrimination and Retaliation
The regulations affirm the protections afforded to employees
and applicants regarding discrimination and retaliation based on military
status. Employers must not deny
initial employment, reemployment, retention in employment, promotion or any
other benefit of employment because of an individual’s membership, application
for membership, performance of service, application for service, or obligation
for service in the uniformed services and are prohibited from taking adverse
employment actions against employees for exercising their rights or attempting
to enforce their rights under USERRA.
It is noted that the regulations provide that a claim for failure to
reemploy a returning service member may be a claim for discrimination, but
additionally, is a separate cause of action under USERRA.
Employee’s Notice to Employer of Leave
An employee must give, oral or written, advanced notice,
within a time that is reasonable under the circumstances, to his/her employer
of the impending leave. However,
there is no specific time frame mentioned to establish what “reasonable” is,
although the Department of Defense suggests 30 days of notice if it is
feasible. Certain circumstances
will eliminate this requirement.
Employees engaged in national security matters (i.e. “top secret” matters) may not know when their
deployment will be, or may not be able to disclose their deployment time. As such, these employees, despite not
providing notice, will still be covered by USERRA. This exception becomes increasingly important with respect
the employee’s rights under the health care and pension provisions of USERRA.
Employee’s Rights To Leave
An employee’s leave for purposes of uniformed services can
be for a cumulative period of five years.
This leave will rarely be on a continuous basis. Leave does not cover the time period
between the employee’s active duty and preparation for departure or return from
active duty to work.
The employee’s leave does not have to be confined strictly
to military service. An employee
on leave may take opportunities to engage in other work while on off-duty
hours. An employee, while on
active duty and on leave protected by USERRA can participate in employment
during his/her off-duty time with another employer. An example of this would be an employee called to duty in a
state different from employer.
This employee could tend bar during his/her off-duty time in the
evenings. This activity would not
impinge on the employee’s rights to leave or reemployment with his/her
Employee’s Intent to Return to Work
An employee is not required to inform his/her employer of
his/her intent to return to work until after his/her military service has
concluded. The regulations
specifically state that, even if an employee, prior to taking leave, informs
the employer that he/she does not intend to return to work after active duty,
this does not waive the right of the employee’s reemployment rights upon
conclusion of his/her active duty.
The employee has a limited time-frame for requesting reemployment, which
is dependant on the length of the employee’s leave for military service. An employee dishonorably discharged
from the uniformed services will not have rights to reemployment.
Re-Employment: Employer’s Time Frame
An employer must reemploy a returning service member, absent
unusual circumstances, generally, “within two weeks of the employee’s
application for employment.” An
employee returning from a short duration (such as weekend duty) should be
reemployed by the next regularly scheduled shift. “Prompt reemployment” may require additional time if the
employer is actively attempting to reassign or give notice to another employee
in the position originally held by the returning service member, or is
attempting to place more than one returning service member.
Re-Employment: Escalator Provision
The regulations discuss extensively the escalator provisions
of USERRA. Generally, a returning
service member is entitled to by reemployed at “the position the employee would
have attained if his or her continuous employment had not been interrupted due
to uniformed services.” This
includes seniority, pay, and status.
There are exceptions to this, as well as Employer responsibilities
similar to those under the American’s with Disabilities Act for reemploying an
injured returning service member, or for training a returning service member in
order to qualify that member for the civilian job.
Terminating A Reemployed Uniformed Service Member
Upon return to work, even in an “at-will” employment
environment, a returning service member may only be terminated “for
cause”. If an employee was on
USERRA-protected leave for less than 180 days, but more then 31 days, the “at
will” relationship is suspended for 180 days. Should the employee’s protected leave been more then 180
days, the “at will” employment relationship will be ineffective for one year
from reemployment. The regulations
clarify that “for cause” discharges include not only conduct, but also
application of other legitimate non-discriminatory reasons. This includes changes in circumstances
that make reemployment impossible or unreasonable, such as a reduction-in-force
or position elimination. The
employer will bears the burden of proving such discharge was “for cause”.
The regulations incorporate the 2004 changes made by the
Veterans Benefits Improvement Act, requiring an extension of the 18 month
period to 24 months of continued optional COBRA-like benefits. This benefit allows the service member
to elect continued coverage under the employer-based health plan on a
self-paying basis for himself/herself and any dependents. This benefit is provided for up to 24
months or the end of the employee’s military service (whichever is shorter). It should be noted that a health care
plan does not have to initiate an employee in the plan if that employee was not
enrolled in the health care plan prior to being activated to military
service. Dependants do not have
the right to elect coverage if the USERRA-covered employee has not elected such
continuation of coverage, further, a uniformed service-dependent does not have
independent election rights under USERRA.
An employee’s rights for health care under USERRA vary greatly depending
on the employer’s implementation of reasonable requirements for election and
continuation, and on the employee’s requirement to give employer advance notice
of departure (a requirement that may fluctuate or be nonexistent based on other
provisions of USERRA).
Regardless of whether an employee elects to continue
coverage while on uniform service duty, upon reemployment with employer, the
employee is entitled, without a waiting period, to be reinstated to the health
Benefits must remain unchanged if the employee’s service is
for less than 30 days. Upon return
from service, the service member must be reinstated to employer’s health plan
without a waiting period or exclusion.
The regulations take the position that cafeteria plans are health plans
under USERRA and must comply with the statute’s continuation and reinstatement
The regulations provide further information on the
administration of qualified retirement plans under USERRA, including
calculating an employee’s presumed compensation and the timing of employer’s
contributions and distributions.
The regulations provide for guidance on a variety of pension plans,
including non-ERISA plans and government plans. Military leave cannot be treated as a break for purposes of
vesting or accrual of benefits.
Employers should consult with its benefits counsel before adjusting any
pension plans to comply with the regulations.
Enforcement of USERRA
Employees can make a complaint with the Department of Labor
or commence a private lawsuit to enforce his/her rights under USERRA. USERRA provides no statute of
limitations, although some jurisdictions may apply the ‘catch-all’ four-year
limit for filing an action under USERRA against an employer.
As with any newly implemented legislation or regulations,
employers should take the time to familiarize themselves with new requirements,
as well as review (and make the necessary updates to) all policies and
practices to ensure compliance and consistency with the legislation or
regulations. Learning after a
claim is filed that the employer’s policy or practice is inconsistent with the
regulations is too late.
Preventative maintenance on the employer’s policies and practices is the
best start for avoiding litigation.
Recent Developments and Interpretations in the Courts
In Garrett v. Circuit City Stores, Inc., No. 04-11360, 2006 WL 1283743 (5th Cir.
5/11/2006), Circuit City, in 1994, hired Garrett, who was also a member of the
Marine Reserves. In 1995, Circuit
City adopted an arbitration agreement with all their employees, which Garrett
signed. Garrett alleges he was
fired because of his status as a Marine.
Garret claims that arbitration will reduce his rights afforded to him by
USERRA. The Fifth Circuit held
that USERRA claims are subject to arbitration under the FAA; this decision reversed
the district court’s denial of the employer’s motion to compel arbitration.
In Bowlds v. General Motors Manufacturing Division of
General Motors Corporation, 411 F.3d 808 (7th
Cir. 2005), a Vietnam veteran claimed that he was denied reemployment with the
Company in violation of USERRA. He
claims that General Motors violated USERRA by not reemploying him from 1983 to
1989. However, it was only during
President Clinton’s first term which the Bill was signed into law (October 13,
1994). The court held that
Congress’ did not intend for USERRA to be retroactive; the court suggested that
perhaps it should have been, but it is not. Therefore, the employee’s USERRA claim clearly accrued
before the application date mandated by Congress.
In Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005), Coffman
was hired by a company named Del-Jen in 1997 for a civilian job on an Air Force
Base. After being promoted to
manager, Coffman was deployed by the Air Force and another employee, Cruz, was
hired as a temporary replacement.
While Coffman was still away on active duty, the Air Force replaced
Del-Jen with Chugach as its primary contractor. Chugach interviewed about 100 Del-Jen employees, including
Coffman and Cruz. Chugach hired 97
of the 100 Del-Jen employees, but did not offer employment to Coffman. Chugach offered Coffman’s previous
position to Cruz. The Eleventh
Circuit held that although USERRA should be “liberally construed for the
benefit of those who left private life to serve their country . . . Chugach is
not the successor in interest or successor employer of Del-Jen and as such,
owed no duty under 4312 and 4313 of USERRA to reemploy Coffman.”
In Lindsley v. Office of Personnel Management, 126 Fed.Appx 959 (Fed. Cir. 2005), the Federal
Circuit Court held that substantial evidence supported the employer’s
contention that the employee intended to abandon his career in favor of one in
the military, and therefore, the employee waived his employment rights under
USERRA. (This case is likely in
opposition to the new regulations.)
In Maxfield v. Cintas Corporation No. 2, 427 F.3d 544 (8th Cir. 2005), en
banc denied, Maxfield was transferred from
one position to another position on the day he returned from military
service. The Eighth Circuit
reversed and remanded the grant of Cintas’s motion for summary judgment on the
USERRA claim. Maxfield claimed
that his military service caused him to be demoted. Cintas argued that he was not demoted; but if he was, USERRA
does not cover demotions. The
court agreed with Maxfield because his service need only be a “motivating
factor in the employer’s actions.”
In Jordan v. Department of Labor, No.05-3385, 2006 WL 572196 (Fed. Cir. 3/10/2006), a
federal employee for the USPS brought a USERRA claim against the Department of
Labor. The Circuit Court ruled
that Jordan’s employer was USPS, not the Department of Labor; therefore, the
Merit Systems Protection Board lacked jurisdiction to entertain the federal
employee’s USERRA claim because the Department of Labor was not his
In Breletic v. CACI, Inc.-Federal, 413 F.Supp.2d 1329 (N.D.GA 1/24/2006), employee
entered into an arbitration agreement with his employer. Later he filed a complaint alleging
that his employer violated USERRA.
Employer filed a motion to compel arbitration. The district court ruled that USERRA granted the right to
pursue claims in a judicial forum and preempted arbitration agreements
purporting to cover claims under USERRA.
(This decision is in direct conflict with the Fifth Circuit’s decision
in Garrett, supra.)
In Carpenter v. Tyler Independent School District, No. 6:05cv124, 2006 WL 1121287 (E.D.Tex.
4/26/2006), a teacher brought an USERRA claim against the school district for
not renewing his employment. The
jury found that the school district discriminated against the employee because
of his military service. However,
the jury awarded no damages. The
court disregarded the damages verdict and awarded the employee one year front
pay in order to make him whole.
In Leboeuf v. Hewlett-Packard Company, No. 3:03-cv-463, 2006 WL971624 (S.D.Ohio
4/10/2006), employee filed a complaint alleging employer violated USERRA by
terminating his employment. The
district court granted summary judgment because the employee failed to produce
direct evidence. In reaching such
decision, the court stated that an employee that pursues discrimination based
on direct evidence should have to present evidence such as a statement by the
employer saying, “I fired you because you are in the Army Reserve.” Evidence regarding employer’s inquiry
into the employee’s possible deployment after the incidents of 9/11 was not
enough to avoid summary judgment.
In McClain v. City of Somerville, 424 F.Supp.2d 329 (D.Mass. 4/3/2006), a former
serviceman brought suit for “failure to hire” in violation of USERRA; both
parties moved for summary judgment.
The district court granted employee’s motion for summary judgment,
holding that the city violated USERRA when it conditioned employee’s job on
attend a training session knowing that the employee could not attend because of
active service during that time.
The district court also noted that the hiring provision of USERRA was
applicable to active members as well as guardsmen and reservists.
In O’Neil v. Putnam Retail Management LLP, 407 F.Supp.2d 310 (D.Mass. 2005), O’Neil brought a
USERRA claim on a number of grounds.
The district court held that the four-year “catchall” federal statute of
limitations applies to USERRA claims.
The motion to dismiss was allowed in part and denied in part based on
when time began to accrue.
In Keating v. University of South Dakota, 386 F.Supp.2d 1096 (D.S.D. 2005), an employee
brought a USERRA claim against a state university. The district court held that state courts can resolve USERRA
claims if the defendant is a state employee.
USERRA’s revised posting for all private employers is
available at: http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf.
Mr. Murray and Mr. Preis are
attorneys with McGlinchey Stafford PLLC in New Orleans, Louisiana where they
represent management in labor and employment matters. They can be reached at email@example.com,
firstname.lastname@example.org or (504)586-1200.