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Understanding the protections provided to military workers under USERRA – III

| May 16, 2017 | Employment Law |

In today’s post, we’ll conclude our ongoing discussion of the Uniformed Services Employment and Reemployment Rights Act, the groundbreaking federal law that provides re-employment rights to all workers who temporarily leave their positions to perform some manner of military service.

Having already examined USERRA’s coverage and escalator provisions, today’s post will naturally focus on two issues of importance to any employer: notice and grace period. 

Are employees who report back after completion of the military service entitled to any sort of grace period under USERRA?     

USERRA dictates that for military service of 181 days of more, a returning employee/servicemember cannot be terminated, except for cause, for one year. For military service of 31 to 180 days, a returning employee/servicemember cannot be terminated, except for cause, for 180 days.

Does USERRA only cover employee-issued written orders?

USERRA makes no distinction between written and verbal orders. Both are considered valid when issued by a competent military authority, and both must be followed by the employee/servicemember.

An example of a scenario in which written orders might not be issued would include the ongoing requirement to perform inactive duty training (i.e., drills).

Can employers request documentation?

Employers are granted the right to request documentation to establish an employee/servicemember’s USERRA eligibility after a military leave of over 30 days. Indeed, National Guard and reserve personnel are encouraged to share annual drill schedules, copies of orders and other documentation with employers as soon as possible.

It’s important to note, however, that an employer cannot demand documentation for notification prior to any military leave.

Can an employer ever request that an employee/servicemember’s military leave be rescheduled?

An employer can contact the commander of an employee/servicemember’s unit to inquire as to whether an upcoming leave could be rescheduled or performed by another if:

  • The military leave would result in the employee/servicemember being gone for an extended period during a time of acute need
  • The requested military leave is cumulatively burdensome considering previous leaves

If the commander determines this is not possible, the employer must allow the employee/servicemember to proceed and abide by USERRA.

Here’s hoping the foregoing discussion has proven helpful.

If you are an employer with questions about USERRA compliance or an employee who believes their USERRA rights were violated, consider speaking with a skilled legal professional.