Tens of thousands of reservists have been and are being called to active military duty because of the war in Iraq and the nation’s vigilant effort to combat terrorism. Over 580,000 reservists have been called to active duty through March 2007.1 The absence of servicemembers from the home places their families under great stress, particularly in a time of war. Many of these servicemembers will return home to civilian life and their jobs following their tour (or tours) of duty. As a result, Congress has aimed to provide and expand protective legislation for servicemembers and their families, most notably through passage of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and the recent military leave amendments to the Family and Medical Leave Act of 1994 (“FMLA”). Employers and employees alike have increasingly shifted their focus to these statutes in an effort to understand their rights and obligations under their respective provisions. This article focuses on the reemployment rights of returning servicemembers and the new leave amendments benefiting their family members.

 

USERRA Background

President Bill Clinton signed USERRA into law on October 13, 1994. USERRA protects civilian employment rights, benefits for veterans and reserve members of the military. The concept of providing reemployment rights for military personnel, however, is far from novel. In fact, the Veterans’ Reemployment Rights Act (“VRRA”), USERRA’s immediate predecessor, can be traced back to 1940.2 USERRA was specifically designed to expand and clarify the VRRA.3 The basic purpose of USERRA is to encourage reserve enlistment by minimizing the disadvantages specifically related to the disruption of civilian careers and employment caused by such service.4 Congress accomplishes this goal by mandating prompt reemployment of those who have served and by penalizing employers who discriminate against or deny benefits of employment to individuals due to their military service.5

 

USERRA Coverage

USERRA applies uniformly to nearly every public and private employer, regardless of size, including the federal government and any state.6 Every employee absent from work due to “service in the uniformed services,” is covered by USERRA’s provisions. USERRA defines “service in the uniformed services” to include all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.7 Despite a popular misconception, USERRA is not limited to the National Guard and reserve components of the Armed Forces; it applies equally to individuals serving in active components of the Armed Forces.8

A member of the National Guard may be called up for active duty by his or her respective state governor, however, to perform purely state duty.9 Performance of purely state duty, ordered by the governor without federal funding or involvement, does not trigger USERRA’s protections.10 For example, a call to active duty by a state governor to fight forest fires constitutes purely state duty and would not be covered by USERRA.11

 

Eligibility Under USERRA

Any employee who leaves civilian employment to perform service in the uniformed services is entitled to prompt reemployment upon return from service, provided the employee meets the five (5) eligibility criteria.12 To be eligible, the employee:

• Must have left civilian employment for the purpose of performing service in the uniformed services;
• Must have given prior notice to his or her civilian employer;
• Must not have exceeded the cumulative five-year limit on a period or periods of service;
• Must not have been released from service with a disqualifying discharge;
• Must have reported back to employment in a timely manner or made a timely application for employment.13

First, an employee must establish that he or she left employment for the purpose of performing military service. Where an employee’s absence is required to perform military service, the fact that an employee uses the time away for additional or ulterior purposes does not defeat an employee’s eligibility.14 Second, an employee must notify his or her employer in advance, orally or in writing, that he or she intends to leave to perform military service.15 The notice should be given as far in advance as possible (the Department of Defense recommends at least 30 days), but may be excused if providing notice is precluded by military necessity or is otherwise impossible or unreasonable under the circumstances.16

Third, an employee is not entitled to reemployment where his or her cumulative service exceeds five years.17 The five-year cap on leave renews with each new employer. Therefore, the calculation need only include period(s) of service taken during the employment relationship for which an employee seeks reemployment.18 To calculate the five-year limit, the employer may only consider the duration of the period(s) of service, not the duration of the absence from work.19 USERRA exempts eight (8) specific categories of service from this calculation.20 Fourth, USERRA’s protections are limited to individuals who are released from service under honorable conditions.21

Finally, an employee must report back to work or apply for reemployment in a timely manner. The time period within which an employee must return to work depends upon his or her length of service, as follows:

• Less Than 31 Days – An employee must report back to work “not later than the beginning of the first full regularly–scheduled workday” following completion of the service plus an 8-hour rest period;
• More Than 30 Days, But Less Than 181 Days – An employee must submit an application for reemployment not later than 14 days after completing the period of service;
• More Than 180 Days – An employee must submit an application for reemployment not later than 90 days after completing the period of service.22

These deadlines may be extended by up to two years because of an employee’s hospitalization or recovery from a service-related injury.23 Failure to report back to work or submit a timely application for reemployment does not automatically forfeit an employee’s reemployment rights under USERRA.24 Rather, the employee is subject to the employer’s established policies or rules regarding absence from scheduled work.25 Furthermore, an employer may require an employee, if returning from a period of service more than 30 days, to submit documentation verifying that he or she is eligible for reemployment, i.e. timely applied for reemployment, was honorably discharged, and is not disqualified by the five-year limit.26 However, where the documentation is not “readily available,” the employer must promptly reemploy the employee while awaiting the documentation.27

 

Entitlements Upon Returning From Service

Upon return from service, an eligible employee is entitled to prompt reemployment and seniority-based benefits in accordance with the “escalator principle,” and protection against arbitrary dismissal. Prompt reemployment means “as soon as practicable under the circumstances,” but at most within two weeks of receiving the employee’s application for reemployment, unless unusual circumstances exist.28

 

The “Escalator Principle”

Generally, an eligible employee is entitled to reinstatement in the position (including pay, benefits, seniority and other job perquisites) that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.29 This position is known as the “escalator position,” and operates as the starting place for determining the appropriate reemployment position.30 USERRA specifically prioritizes the reemployment position, as follows: (1) the escalator position (or a position of like seniority, status and pay if period of service greater than 90 days), (2) if the employee is not qualified for the escalator position after reasonable efforts by the employer to help the employee become qualified, the pre-service position (or a position of like seniority, status and pay if period of service greater than 90 days), or (3) if the employee is not qualified for either the escalator position or the pre-service position after reasonable efforts by the employer, the nearest approximation to the escalator position (first) or the pre-service position (second).31

Upon reemployment, an employee is not entitled to any rights greater than he or she would have received if continuously employed. Thus, the escalator principle operates in both directions, such that an employee may be adversely affected.32 For example, if the employee’s seniority or job classification would have resulted in the employee being laid off during the service period, the employee would be reinstated to layoff status.33

The escalator principle applies equally to an employee’s seniority-based rights and benefits.34 A seniority-based right and/or benefit is “one that accrues with, or is determined by, longevity in employment.”35 By way of example, the rate at which an employee earns or accrues vacation – if based on length of service – is a seniority-based benefit. In such a case, while the employee would not accrue vacation time during the period of service, the employee’s period of service would not be considered a break in employment for purposes of determining the employee’s annual vacation entitlement.36

 

Suspension of At-Will Employment

As in most states, the general rule in Texas is that employment may be terminated by either the employer or the employee at will, with or without cause.37 Absent a specific agreement to the contrary, there are very few exceptions to this long-standing rule. Under USERRA, certain returning employees are entitled to a special protection period during which they may only be discharged for cause. Now an employee may only be terminated for cause upon his or her return from a period of service totaling more than 30 days.38 The duration of this protection period is determined by the employee’s most recent period of service, as follows:

• More Than 180 Days – the special period of protection is 1 year;
• More Than 30 Days, But Less Than 181 Days – the special period of protection is 180 days.39

“For cause” may include, (1) discharge due to an employee’s improper conduct, or (2) discharge based on some other legitimate nondiscriminatory reason, i.e. the employee’s position is eliminated or the employee is part of a layoff.40 If an eligible employee is discharged during this special protection period, the employer bears the burden of proving the employee was terminated “for cause.”41

 

FMLA Military Leave Background

While USERRA provides broad protection to uniformed servicemembers, it fails to provide any protection for their family members.42 The increased need for leave by employees with family members in the uniformed services spurred Congress to amend the FMLA to extend its protections.43 Specifically, the law created two new provisions for military family leave entitlement. Under the new legislation, signed by President George Bush on January 28, 2008, workers with family members serving in the military can take up to 26 workweeks of FMLA leave to care for a soldier who is injured or ill,44 and up to 12 workweeks of leave necessitated by a “qualifying exigency” that arises from a family member’s active duty assignment.45

Recognizing the significance of these new leave provisions, as well as the increasing need for military related leave, the U.S. Department of Labor (the “DOL”) has issued a Notice of Proposed Rulemaking, which includes a description of the relevant provisions, unresolved issues identified by the DOL, and a series of questions seeking comments from the public that may be considered in drafting the final regulations.46 The comment period closed on April 11, 2008.47 As such, final regulations are expected in the near future, and should provide necessary guidance to employees and employers alike regarding the application of these new leave provisions.

 

“Servicemember Family Leave”

Under the recent FMLA amendments, an eligible employee who is the spouse, child, parent or “next of kin” of a “covered servicemember” may receive up to 26 workweeks of leave in “a single 12-month period” to care for the servicemember.48 “Covered servicemember” means “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on temporary disability retired list, for a serious injury or illness.”49 The FMLA defines “next of kin” simply as the servicemember’s nearest blood relative.50 The “servicemember family leave” entitlement is, therefore, available to a broader category of employees than the traditional FMLA leave entitlements.

Notably, an employee’s entitlement to 26 workweeks of leave is not in addition to the employee’s traditional 12-week FMLA leave entitlement. Instead, an employee’s combined FMLA leave, including traditional leave and “servicemember family leave,” cannot exceed 26 workweeks in a single 12-month period.51 While the “servicemember family leave” provisions became effective upon their passage in January 2008, the DOL recognizes there are several areas in need of clarification that must be addressed by the issuance of final regulations.

 

“Qualifying Exigency Leave”

As amended, the FMLA permits an eligible employee to take up to 12 workweeks of leave in any 12-month period “because of a qualifying exigency” arising from the fact that a spouse, son, daughter or parent is on active duty status, or is being called to active duty.52 The active duty leave merely creates an additional qualifying reason for an employee to take FMLA leave. Thus, employees remain eligible for only a combined total of 12 workweeks of leave, regardless of the qualifying reason for the leave.

Congress instructed the DOL to define the term “qualifying exigency,” and suspended operation of this section until the DOL does so.53 The DOL has indicated that “qualifying exigencies” may include: (1) making arrangements for childcare; (2) making financial and legal arrangements to address the service member’s absence; (3) attending counseling related to the active duty of the service member; (4) attending official ceremonies or programs where the military requests presence of family members; (5) attending farewell or arrival ceremonies; and (6) attending to affairs caused by missing status or death of service member.54 To a large extent, the application of the “active duty leave” provision is, and will remain, uncertain pending the issuance of final regulations.

 

Conclusion

As reservists and other military servicemembers return from active duty to civilian life, employers and employees alike must seek to understand their respective rights and obligations regarding reemployment under USERRA. The recent FMLA amendments provide valuable leave rights to the families of servicemembers and they also further complicate an already complex area of the law for companies and human resources professionals seeking to comply with the various technical requirements of the FMLA. It is our hope and expectation that final regulations issued by the DOL will provide much needed guidance and clarification regarding these new provisions.

Scott K. Davidson is a partner with the labor and employment practice group of Locke Lord Bissell & Liddell LLP and is board certified in labor and employment law. 
Sara C. Longtain is an associate in the firm’s labor and employment practice group.

 

Endnotes

1. Congressional Budget Office Testimony, The Effect of Reserve Call-Ups on Civilian Employers, before the Commission on the National Guard and Reserves, May 17, 2007, Statement of Heidi Golding – Principal Analyst.   2. 20 C.F.R. § 1002.2.   3. Id.   4. 38 U.S.C. § 4301(a)(1)-(3).   5. Id. at §§ 4311, 4312.  While this article focuses on reemployment rights, USERRA also prohibits discrimination by an employer against an individual based upon the individual’s membership or service in the uniformed services or application for such membership or service, and retaliation by an employer against an individual for seeking protection under USERRA or participating in a proceeding or investigation.  20 C.F.R. §§ 1002.18-1002.19.   6. 38 U.S.C. § 4303(4) (defining “employer” under USERRA); see also 20 C.F.R. § 1002.5(d) (same).   7. 38 U.S.C. § 4303(13), (16); see also 20 C.F.R. § 1002.6.   8. 20 C.F.R. § 1002.6.   9. Tex. Gov’t Code §431.111 (“Calling of Forces by Governor”).   10. 10 U.S.C. § 101(d)(5) (defining “full time National Guard duty” to include performance as member of National Guard of State, only when performed under various sections of Title 32 of the United States Code).   11. Example drawn from an inquiry published in USERRA and SSCRA Coverage for National Guard Members, Reserve Officers Association, Law Review No. 45, June 2002.   12. 38 U.S.C. § 4312(a); see also 20 C.F.R. §1002.32.   13. Id.   14. 20 C.F.R. § 1002.73.   15. 38 U.S.C. § 4312(a)(1); see also 20 C.F.R. § 1002.85.   16. 38 U.S.C. § 4312(b); see also 20 C.F.R. § 1002.86.   17. 38 U.S.C. § 4312(a)(2); see also 20 C.F.R. § 1002.32(2).   18. 20 C.F.R. § 1002.101.   19. Id. at § 1002.100.   20. 38 U.S.C. § 4312(c); see also 20 C.F.R. § 1002.103.   21. 38 U.S.C. § 4304; see also 20 C.F.R. §§ 1002.134-1002.138.   22. 38 U.S.C. § 4312(e)(1); see also 20 C.F.R. §1002.115.   23. 38 U.S.C. § 4312(e)(2); see also 20 C.F.R. § 1002.116.   24. 38 U.S.C. § 4312(e)(3); see also 20 C.F.R. §1002.117(a).   25. Id.   26. 38 U.S.C. §4312(f)(1); see also 20 C.F.R. §1002.121   27. 38 U.S.C. § 4312(f)(3)(A); see also 20 C.F.R. §1002.122.   28. 20 C.F.R. § 1002.181.   29.Id. at §1002.191.   30. Id.; see also Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946) (“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 [his military service].”).   31. 38 U.S.C. § 4313(a)(1)-(2); see also 20 C.F.R. §§ 1002.196-1002.197.   32. 20 C.F.R. §1002.194.   33. Id.   34. 38 U.S.C. § 4316(a).   35. 20 C.F.R. § 1002.212; see also 38 U.S.C. § 4303(12) (defining “seniority”).   36. 20 C.F.R. § 1002.210.   37. Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993) (per curiam); Schroeder v. Texas Iron Works, 813 S.W.2d 483, 489 (Tex. 1991); Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 723 (Tex. 1990); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734-35 (Tex. 1985); East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888).   38. 38 U.S.C. § 4316(c); see also 20 C.F.R. § 1002.247.   39. Id.   40. 20 C.F.R. § 1002.248.   41. Id.   42. Does USERRA Apply to Spouses?, Reserve Officers Association, Law Review No. 98, December 2003.   43. 29 U.S.C. § 2612(a)(1)(E), (a)(3).   44. Id. at § 2612(a)(3),   45. Id. at § 2612(a)(1)(E).   46. 73 Fed. Reg. 7876, 7876 (Feb. 11, 2008) (to be codified at 29 C.F.R. Pt. 825).   47. Id. at 7876.   48. 29 U.S.C. § 2612(a)(3).   49. Id. at § 2611(16).   50. Id. at § 2611(18).   51. Id. at § 2612(a)(4).   52. Id. at § 2612(a)(1)(E)   53. 73 Fed. Reg. 7876, 7927 (Feb. 11, 2008) (to be codified at 29 C.F.R. Pt. 825).   54. Id.

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