Reinstatement With Seniority, Rights And Benefits Upon Return To Work
USERRA generally provides that eligible employees must be reinstated to the position and pay the employee would have held if continuous employment had not been interrupted by military service. The statute appears to limit reemployment rights to a period of five years, but also contains various exceptions to the five-year period. Generally, to be covered, employees must provide advance notice of the leave, receive a favorable discharge, and seek reinstatement in a timely manner. Eligible employees cannot waive reemployment rights until after completing military service.
There are limited exceptions to the requirement to reemploy returning service members. For example, the regulations recognize that an employee may be reemployed in a lower position, laid off, or even terminated depending on the particular circumstances, such as an intervening reduction in force that would have affected that employee. In addition, there is no obligation to reemploy someone who had worked for a brief, nonrecurring period in which there was no expectation that work would continue. It should be noted that the need to terminate a replacement employee is not a basis to refuse reemployment. Decisions not to reinstate an employee must be made on a case-by-case basis. Consult legal counsel before making such a decision.
Employees must be reinstated to the position they would have attained if his or her employment had not been interrupted. The employee is also entitled to the seniority, status and rate of pay that the employee would ordinarily have attained if continuously employed. In some cases, the position, status and rate of pay are easily determined. In many other cases, the regulations recognize employers will be required to evaluate a number of factors. For example, an employee may need additional time to train for skills for a promotion that the employee “missed” during service, or an employee’s status may involve missed opportunities for advancement, responsibility, general working conditions or even job location.
The regulations provide guidance on how an employee’s rate of pay is determined upon return from service taking into account any pay increases, step increases, merit increases, or periodic increases that the employee would have attained with “reasonable certainty” if continuously employed. The regulations note that when considering whether merit or performance increases would have been attained with reasonable certainty, an employer may examine work history, merit increase history, and the work and pay history of employees in the same or similar position.
USERRA requires an employer provide an employee with all seniority-based rights and benefits as if the employee had been continuously employed. For example, the period of military leave counts towards seniority for a higher tier of vacation accrual and FMLA eligibility requirements. Employers are not required to use a formal seniority system, but the regulations require employers to determine an employee’s entitlement to employee benefits by looking at the actual custom and practice based on longevity and employment.