The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that applies to employers in South Carolina. It establishes various protections for employees who are military service members, members of the National Guard, and reservists.
In a previous article, we provided an overview of USERRA, including how it works, when it applies, and what employers need to do to comply. In this article, we will cover two specific issues that tend to lead to confusion amongst both employers and employees: (i) the exceptions to the five-year limit on employee absence, and (ii) USERRA’s “escalator” principle.
The 5-Year Limit Under USERRA
Under USERRA, employers are required to reemploy employees who leave work for military service for up to five years. As summarized by the U.S. Department of Labor (DOL):
“USERRA protects civilian job rights and benefits for veterans and members of Reserve components. . . . [It] establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years …”
As stated by the DOL, the five-year reemployment period is cumulative. This means that an employee who leaves work for two years of military service and then subsequently leaves for another three-year period of active duty would exhaust his or her reemployment rights under USERRA.
Exceptions to USERRA’s 5-Year Limitation on Military Employees’ Reemployment Rights
This, however, assumes that the general rules under USERRA apply. There are various circumstances under which employees who are service members, members of the National Guard, and reservists can retain their reemployment rights under USERRA beyond five years of cumulative military service. Under 20 C.F.R. § 1002.103, the exceptions to the five-year limitation under USERRA include:
- “Service that is required beyond five years to complete an initial period of obligated service.” This applies if the employee serves in a specialty department of the military and is required to serve longer than five years due to the need for extensive training. The employee’s USERRA reemployment rights expire after his or her military service obligation ends.
- “If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee’s fault.”
- “Service performed to fulfill periodic National Guard and Reserve training requirements. .[or] to fulfill additional training requirements determined and certified by the proper military authority.”
- “Service performed in a uniformed service if the employee was ordered to or retained on active duty (other than for training) under any provision of law because of war or national emergency declared by the President or the Congress.” There are similar exceptions for employees who are ordered to active duty in support of operational and critical missions.
- “Service performed to mitigate economic harm where the employee’s employer is in violation of its employment or reemployment obligations.”
USERRA also contains specific exceptions for employees who are ordered to active duty in a uniformed service involuntarily or who are retained on active duty while in captive status. In addition, employees who are injured while serving in the military have up to two additional years to seek reemployment (and this can be extended even longer if additional time is required, “to accommodate a circumstance beyond [the employee’s] control that would make reporting within the two-year period impossible or unreasonable”).
As a result, while the five-year cumulative limitation may initially appear fairly straightforward, calculating an employee’s reemployment eligibility will often prove to be challenging. For this reason, employers seeking to terminate employees who are serving, who have served, or who are preparing to serve in the military must be extremely careful to avoid running afoul of USERRA’s five-year limitation exceptions.
Understanding the Escalator Principle Under USERRA
The basic concept behind USERRA’s escalator principle is that employees should not be disadvantaged as a result of serving in the military. It states that not only are employees who serve entitled to reemployment (subject to the five-year limitation and its various exceptions), but they are also entitled to any advancement, “that they would have attained had they not been absent for military service.” Once again in the words of the DOL:
“USERRA  requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the ‘escalator’ position.”
Similar to the five-year reemployment rule, while this may seem straightforward enough in concept, it often proves exceedingly difficult to implement in practice. Who is to say what level of advancement an employee would have achieved had he or she not been absent for a period of years? How can this determination be made with any level of certainty? When it comes to complying with USERRA, these are not just rhetorical questions. The DOL advises that returning employees must receive “the same seniority, status, and pay, as well as other rights and benefits determined by seniority” as they would have otherwise received. This can become complicated when these are terms are set on a case-by-case basis and determined by individual employees’ qualifications and contributions.
USERRA is an important law that provides important protections for men and women who choose to serve their country. However, it presents some practical and legal challenges for employers. If you have questions about your company’s obligations and your employees’ rights under USERRA, we encourage you to contact us for a confidential consultation.
Speak with an Employment Law Attorney in South Carolina
Gignilliat, Savitz & Bettis, LLP is a employment and labor law firm providing employer counseling in all of South Carolina. Our attorneys have decades of experience advising employers regarding USERRA and other federal compliance matters. To discuss your company’s obligations under USERRA, give us a call at 803-799-9311 or tell us how we can help online today.