When Johnny Comes Marching Home: The Rights of an Employee who has Returned from Military Service and the Rights of all Veterans under USERRA
By Ryan T. Neumeyer
We are all concerned about our troops who are fighting overseas and we sincerely hope that they all make it home safely. Many of us personally know at least one soldier that has shipped out to perform their duty for our country. Some of you may even have an employee who was obligated into service. If that is the case, you should be cognizant of a service person’s rights under the Uniformed Service Employment and Reemployment Rights Act (USERRA).
USERRA provides that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled” to reemployment. To ultimately be eligible for reemployment, a service person must comply with certain requirements. For example, a service person must give their employer notice of their service requirements before deploying and must submit certain documentation upon return. Although there are more requirements than just these two examples, most returning service persons will meet the requirements for reemployment.
When a service person comes home and returns to work, USERRA provides that the service person must be returned to a position that they would have been in had their employment not been interrupted by military service. The position must have like seniority, status, pay and duties of which the returning employee is qualified to perform. Courts have consistently interpreted USERRA liberally for the benefit of “those who left private life to serve their country.” Thus, a reduction in duties or diminished role upon the service person’s return to work will likely violate USERRA.
Further, once a service person is reemployed, under most circumstances an employer may not terminate that person for one year unless the company has just cause to do so. Just cause under USERRA has been defined by various courts in a number of different ways. However, it generally means a reasonable cause which is not arbitrary or taken with a purpose to avoid the statute. Accordingly, the returning service person is no longer an at-will employee under the law.
Finally, USERRA provides that a service person or former service person may not be discriminated against on the basis that he or she served in the armed forces. While this portion of the act may sound like an absurd vestige from another time in our country’s history, an employer must still be aware of the protections afforded to all who have served in the military, and not just those who have recently served.
Do you employ veterans and/or persons in the reserves? If so, it is important to know both service persons’ reinstatement rights and your own rights under USERRA. Please do not hesitate to contact Lynn Schonberg or Ryan Neumeyer with any questions concerning USERRA.