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Jul 27, 2021

Most large employers at one point or another have bemoaned the difficulties of complying with the Family Medical Leave Act (FMLA). It’s a challenging statute. Not only does it contain the anti-discrimination components of most other employment law statutes but it also ups the ante with the centerpiece of the Act — an entitlement to 12 weeks (in some specific cases 26 weeks) of job-protected leave. 

Many HR professionals likely have a long list of horror stories involving administering the FMLA. The never-ending eligibility notices; the incomplete and vague medical certifications; days, or even hours, of intermittent leave that always seem to be necessitated at the worst possible time.   

However, there’s a dark-horse statute out there, lurking in the shadows, filled to the brim with loopholes and opportunities for abuse. A statute that is bathed in patriotic hues of red, white, and blue. A statute that applies to virtually all employers — small, large, public, and private. A statute that can make HR professionals long for the relative certainty and clarity of the FMLA. 

It’s the Uniformed Services Employment and Reemployment Rights Act.

USERRA is not a new law. It’s been around in its current form since 1994, and its predecessor statutes go back to the early 1940s. USERRA is wide-ranging and generous to employees, while providing relatively few rights to employers to curb and prevent abuse. 

Like most employment statutes, USERRA contains an anti-discrimination, anti-retaliation, and anti-harassment component that renders “military service” a protected classification. Additionally, it features a leave and reemployment component — analogous to the FMLA but far more generous — that is unmatched in its scope and duration of five years. 

Finally, the law’s obligations can impact almost all aspects of a service member’s employment relationship with an employer, including pension and retirement benefits, paid time off entitlements, and seniority and pay administration.  

To avail oneself of these vast protections, an employee must merely: 

  1. Provide advanced notice of the military service, either orally or in writing;
  2. Return to work after the service is complete within the time limits set out by statute; and 
  3. Provide documentation verifying the military service, if requested, but only if the period of service exceeds 30 days. 

The lack of additional employee obligations has left a void that is all-to-easily filled by abuse and exploitation.  

Most employers are likely aware, vaguely, of their obligations under the Act, but plaintiff attorneys have been sharpening their knives over the last decade or more in industries that traditionally employ a high percentage of service members — airlines, police and fire departments, and security firms — through individual lawsuits and class actions, sometimes with jaw-dropping results.  

The following areas and provisions of the law are particularly rife with the potential for mistakes and misadministration:      

Documentation. Employers are not entitled to documentation of military service unless the period of service is greater than 30 days, and they have no right to require such documentation until after the employee returns from the period of service. Employers’ limited access to documentation under USERRA can make administering leave and preventing abuse exceptionally challenging.  

Reemployment position. Generally, an employee is entitled to reemployment in the “escalator position,” which is the job the person would have held had the individual remained continuously employed with the employer, or a position of like seniority status and pay. In many cases, especially where the period of military service is relatively brief, the escalator position and the employee’s pre-service position may be the same. In other instances, particularly where the period of service is extended, the escalator position may represent a promotion from the pre-service position.

Retirement benefits administration. Retirement benefits administration is an area of USERRA that can become exceedingly complex depending upon the type of benefit an employer offers. Plaintiff attorneys have been extremely successful in achieving large class-action settlements relating to pension contributions in the airline industry. USERRA imposes obligations relating to nearly every type of retirement plan that employers offer, but employer contribution plans based on employee earnings can present particularly significant challenges, especially when employees’ earnings may vary from week-to-week. 

Five-year limitation on leave. Service members are entitled to five years of cumulative leave for non-exempt military service during their employment with any single employer. The leave may be in large blocks or intermittent. In the aftermath of 9/11, however, many military operations and missions have been classified as exempt from USERRA’s five-year limitation. Any portion of service that is exempt does not count against the five-year limitation. Accordingly, some service members may be on leave for more than five years and still retain reemployment rights. Determining whether a particular period of military service is exempt can be difficult and may require verification through the Department of Defense.

Paid or unpaid leave. USERRA has been long understood to guarantee unpaid leave for military service. Some companies choose to voluntarily offer a paid leave benefit to their employees, often limited in duration to a couple of weeks. In the last couple of years, however, class-action lawsuits have been filed in the airline industry alleging that a company’s paid jury, bereavement, and sick leave policies create an attendant obligation to provide paid military leave under USERRA. Those cases are still working their way through the federal court system, but a finding in plaintiffs’ favor would require a sea change in the way that military leave programs are administered across all industries. Accordingly, there is some benefit beyond enhancements to brand and reputation associated with a paid-leave program. 

Salaried-exempt employees and deductions from pay. Pursuant to the Fair Labor Standards Act, an absence for military service of less than a full workweek may not result in a deduction from pay for salaried-exempt employees. This limitation, which comes from outside of USERRA, is often overlooked by employees, who may assume that any military absence can be unpaid.

Once the plaintiff attorneys have worked their way through the most obvious targets, where will they turn next? Has your organization looked at its military absence policy recently? 

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