USERRA
Uniformed Services Employment & Reemployment Rights Act
Reserve Officers Association
One Constitution Avenue NE
Washington, D.C. 20002
HISTORY
• Congress enacted reemployment statute in 1940, as
part of Selective Training and Service Act. Referred
to colloquially as the Veterans’ Reemployment
Rights Act (VRRA).
LIBERAL CONSTRUCTION
• Reemployment statute should be “liberally
construed for he who has laid aside his private
concerns to serve his country in its hour of great
need.” Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275, 285 (1946).
NOW MORE THAN EVER
• Reemployment statute is important and relevant,
now more than ever. More than 910,000 National
Guard & Reserve members called to active duty
since terrorist attacks of 9/11/2001. Some have
been called multiple times.
NOW MORE THAN EVER—CONT.
• Reemployment statute enacted for “greatest
generation” who won WWII. Applies equally to their
grandchildren and great-grandchildren winning the
Global War on Terrorism today.
USERRA HISTORY
• Enacted 1994 to replace VRRA, originally enacted in
1940.
• Public Law 103-353, signed 10/13/1994.
• Title 38, United States Code, sections 4301-4335.
• 38 U.S.C. 4301-4335.
• Amended 1996, 1998, 2000, 2004, 2008, 2010, 2011,
2012, and 2015.
USERRA LEGISLATIVE HISTORY
• House Report No. 103-65—substantial excerpt
available at 1994 United States Code Congressional
& Administrative News pages 2449 through 2515
ROA LAW REVIEW
• Initiated 1997 in The Officer.
• On Reserve Officers Association (ROA) website since
2000.
• www.servicemembers-lawcenter.org
• More than 1,400 articles, mostly about USERRA
• New articles added each week.
LAW REVIEW—CONT.
• Detailed Subject Index and search function
• USERRA numbers start with one
• This PowerPoint refers to ROA Law Review Subject
Index categories
USERRA APPLIES TO EMPLOYERS
•
•
•
•
Federal Government—1.1.1.8
State and local governments—1.1.1.7
Small and large private employers—1.1.1.2
You only need one employee to be covered—Cole v.
Swint, 961 F.2d 58 (5th Cir. 1992).
HIGHER EXPECTATION FOR FEDERAL
GOVERNMENT
• “It is the sense of Congress that the Federal
Government should be a model employer in
carrying out the provisions of this chapter.” 38
U.S.C. 4301(b)
• Federal employee is exempted from the descending
escalator while on duty—5 CFR 353.209(a). See
Law Review 0740.
USERRA EMPLOYERS-Cont.
•
•
•
•
•
Applies to U.S. employers overseas—1.1.1.5
Applies to foreign employers in the U.S.—1.1.1.6
Applies to joint employers and hiring halls—1.1.1.1
Applies to successors in interest—1.1.1.9
Applies to functional successors as well as
transactional successors. Law Review 1296.
USERRA--NOT APPLY
•
•
•
•
•
USERRA applies to all U.S. employers EXCEPT
Religious institutions—1.1.1.3
Indian tribes—1.1.1.4
Foreign embassies
International Organizations—United Nations, World
Bank, etc.
USERRA—KINDS OF JOBS
• Applies to temporary, probationary, and at-will
jobs—1.1.2.1
• Applies to executive employees—1.1.2.5
• Does not apply to partners, independent contractors,
but label is not controlling—1.1.2.2
• Applies to laid-off employees—1.1.2.3
USERRA--STUDENTS
• USERRA does not apply to the relationship between a
student and an educational institution, but in 2008,
Congress enacted 20 U.S.C. 1091c. This section gives
USERRA-type protection to post-secondary students
whose educational programs are interrupted by
voluntary or involuntary service. See Law Review
15038.
USERRA—KINDS OF SERVICE
• Applies to REGULAR military service, as well as
National Guard & Reserve—1.1.3.2
• Applies to voluntary as well as involuntary service—
1.1.3.1
• Applies to exam to determine fitness—1.1.3.7
• Applies to funeral honors duty—1.1.3.8
USERRA—KINDS OF SERVICE—CONT.
• Applies to Public Health Service (PHS) service—
1.1.3.4
• Does NOT apply to National Oceanic & Atmospheric
Administration service—1.1.3.5
• Applies to National Disaster Medical System (NDMS)
service—1.1.3.6
USERRA—KINDS OF SERVICE—CONT.
• Does NOT apply to service in a foreign military
service—1.1.3.10
• Does NOT apply to service by military family
members, but Family Medical Leave Act (FMLA)
applies—1.1.3.9
FMLA Amendments Post 9/11/2001
• Congress has amended FMLA since 9/11/2001.
• New military-related FMLA leave, in addition to
standard FMLA leave for birth or adoption, employee
illness, etc.
• For eligible employee with spouse, son, daughter, or
parent on active duty or on call to active duty status
in National Guard or Reserve.
FMLA Amendments Post 9/11/2001
cont.
• Such employee may use 12-week FMLA leave for
military events, arranging alternative childcare,
addressing financial and legal arrangements,
attending certain counseling sessions and postdeployment reintegration briefings.
• Also, new additional 26 weeks of FMLA leave during a
12-month period for family caregiver of wounded
warrior.
• Standard FMLA applicability thresholds still apply.
USERRA FORBIDS DISCRIMINATION
• Forbids discrimination in hiring, retention, promotion,
benefit—38 U.S.C. 4311
• Because of membership in service, application to join,
performance of service, application or obligation to
perform service—38 U.S.C. 4311(a)
• Because of exercise of right, action to enforce, etc.—
38 U.S.C. 4311(b)
USERRA FORBIDS DISCRIMINATION—CONT.
• Only need to prove protected status or activity was A
MOTIVATING FACTOR—NOT necessarily only
reason—38 U.S.C. 4311(c)
• BURDEN OF PROOF shifts to employer
• 1.2 in Subject Index
PROMOTIONS FOR MOBILIZED EMPLOYEE
• “[Federal] Agency promotion plans must provide a
mechanism by which employees who are absent
because of … uniformed service can be considered
for promotion.” 5 C.F.R. 353.106(c).
• See Law Review 0855.
USERRA REINSTATEMENT
• Only necessary to prove 5 eligibility criteria—don’t
need to prove discrimination
• 38 U.S.C. 4312—distinguish from section 4311
• 1.3 in Subject Index
REINSTATEMENT CRITERIA
• Left for service and gave prior notice—1.3.1.1
• Five-year limit (many exceptions)—1.3.1.2
• Released without punitive or other-than-honorable
discharge—1.3.1.2
• Timely application for reemployment—1.3.1.3
AFFIRMATIVE DEFENSES
• Not required to reemploy if employer’s changed
circumstances make doing so impossible or
unreasonable. 38 U.S.C. 4312(d)(1)(A).
• Not required to train or accommodate disability if
doing so imposes undue hardship on employer. 38
U.S.C. 4312(d)(1)(B).
AFFIRMATIVE DEFENSES—CONT.
• Not required to reemploy if pre-service employment
relationship was brief, non-recurrent, and no
reasonable expectation of continuation indefinitely
or for a significant period. 38 U.S.C. 4312(d)(1)(C).
• Please see Law Review 15094.
AFFIRMATIVE DEFENSES—CONT.
• Employer has burden to raise and establish the
affirmative defense. 38 U.S.C. 4312(d)(2)
• Subject Index 1.3.1.4
REINSTATEMENT ENTITLEMENTS
•
•
•
•
Prompt reinstatement—1.3.2.1
Continuous seniority—1.3.2.2
Continuous pension credit—1.3.2.3
Status—1.3.2.4—Includes location, supervisor vice
supervisee, hours, promotion opportunity, etc.
ESCALATOR PRINCIPLE
• “The returning veteran does not step back on the
seniority escalator at the point he stepped off. He
steps back on at the precise point he would have
occupied had he kept his position continuously
during the war.” Fishgold v. Sullivan Drydock &
Repair Corp., 328 U.S. 275, 284-85 (1946).
ESCALATOR PRINCIPLE—CONT.
•
•
•
•
Escalator principle codified at 38 U.S.C. 4316(a).
Applies to perquisites of seniority.
Escalator can descend as well as ascend.
Federal employee exempted from descending
escalator—5 CFR 353.209(a)
• Subject Index 1.3.2.2
ENTITLEMENTS—CONT.
• Rate of pay upon reinstatement—1.3.2.5
• Health insurance reinstatement and continuation—
1.3.2.6
• Adequate rest, travel, and prep time before and after
service--1.3.2.7
• Training after returning to work—1.3.2.8
DISABLED VETERANS
• Applies to disabled veteran otherwise entitled to
reemployment
• In addition to and broader than Americans with
Disabilities Act (ADA)
• Employer must make reasonable efforts
• Right to ANOTHER job if disability cannot be
accommodated—1.3.2.9
FURLOUGH/LEAVE OF ABSENCE
• Employee away from work for service deemed to be
on leave. 38 U.S.C. 4316(b)
• Entitled to non-seniority benefits like others on
leave of other kinds.
• Escalator principle distinguished.
• Subject Index 1.3.2.10
VACATIONS, HOLIDAYS, DAYS OFF
• 1.3.2.11
• Don’t generally accrue vacation from civilian
employer while away from work for service
• Right to use vacation while away from work for
service—38 U.S.C. 4316(d)
NO DISCHARGE EXCEPT FOR CAUSE
• For one year, if period of service greater than 180
days—38 U.S.C. 4316(c)(1)
• For 180 days, if period of service 31-180 days—38
U.S.C. 4316(c)(2)
• 38 U.S.C. 4311 distinguished
• Subject Index 1.3.2.12
USERRA ENFORCEMENT
• Cases against state, local, and private employers—
forum is Federal District Court—38 U.S.C. 4323—1.4
• 11th Amendment problem when suing a STATE (does
not include local)—1.1.1.7
• No exhaustion of remedies requirement
• Subject Index 1.4
ENFORCEMENT—CONT.
• Cases against Federal Agencies—forum is the Merit
Systems Protection Board (MSPB). 38 U.S.C. 4324
• Appeals to United States Court of Appeals for
Federal Circuit
• Fed Cir not shy about reversing MSPB
• Subject Index 1.1.1.8 and 1.4—Law Review 0755
especially.
USERRA ASSISTANCE
•
•
•
•
•
Employer Support of the Guard and Reserve (ESGR)
DoD organization established 1972
Informal, nonconfrontational, and quick
www.esgr.mil
1-800-336-4590
USERRA ASSISTANCE—CONT.
• U.S. Dept. of Labor, Veterans’ Employment & Training
Service (DOL-VETS)
• Claimant NOT required to exhaust remedies through
DOL-VETS before suing, BUT you must go through
DOL-VETS if you want free legal help
DOL-VETS—CONT.
• Required to assist 38 U.S.C. 4321
• Required to investigate claimed violations—38
U.S.C. 4322
• Has subpoena authority—38 U.S.C. 4326
• Referral to Special Counsel (federal agency) or
Attorney General (state, local, or private)—38 U.S.C.
4322(e)
• Time limits enacted Oct. 2008
OPM ROLE IN USERRA
• Office of Personnel Management responsible for
finding another job within Executive Branch, if
impossible or unreasonable in old agency. Also
applies to Legislative Branch, Judicial Branch,
Intelligence Agencies, National Guard technicians.
38 U.S.C. 4314, 4315
• Law Review 0763.
USERRA STATUTE OF LIMITATIONS
• No Federal or State statute of limitations applies—
38 U.S.C. 4327 (enacted Oct. 2008)
• Equitable doctrine of laches applies
• I don’t recommend you sleep on rights
• Subject Index 1.6
USERRA AND OTHER LAWS/POLICIES
• Does not supersede state law, employer policy,
contract, collective bargaining agreement (CBA), etc.
if greater or additional rights—38 U.S.C. 4302(a)
• Supersedes state laws, employer policies, practices,
contracts, CBAs, etc. that limit USERRA rights or
impose additional prerequisites—38 U.S.C.
4302(b)—1.8
USERRA AND OTHER MATTERS—CONT.
• “No practice of employers or agreements between
employers and unions can cut down the service
adjustment benefits that Congress has secured the
veteran.” Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 285 (1946)
USERRA ARBITRATION
• I believe that 38 U.S.C. 4302(b) overrides
agreements to submit future USERRA disputes to
binding arbitration—unfortunately the 5th Cir. and
6th Cir. disagree
• Need corrective legislation
• Subject Index 1.5
USERRA REGULATIONS
• Director of Office of Personnel Management (OPM)
has authority to promulgate regulations regarding
application of USERRA to Federal agencies—38
U.S.C. 4331(b)
• OPM USERRA Regulations in Title 5, Code of
Federal Regulations (CFR), Part 353
USERRA REGULATIONS—CONT.
• Secretary of Labor has authority to promulgate
regulations about application of USERRA to state
and local governments and private employers—38
U.S.C. 4331(a)
• DOL USERRA Regulations in 20 CFR Part 1002
USERRA REGULATIONS—CONT.
• DOL USERRA Regulations preamble—2005 Federal
Register pages 75246 through 75313 (Dec. 19,
2005). Also available at www.dol.gov/vets.
• Subject Index 1.7