Employers may be surprised to learn that certain employees with greater than five years of military leave may still have reemployment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA has numerous exemptions to the statute's five-year service limit, and employers may need to consult an employees' orders and discharge documents (DD-214 or NGB 22) before denying an employee reemployment rights under USERRA. While the burden of proving entitlement to reemployment (including service not in excess of five years) rests with the employee, USERRA also requires employers to treat employees as if they are on a furlough or leave of absence during a period of service. Tracking cumulative leave, and understanding the exemptions, may inform both the employee and employer as to where an employee stands with respect to the limit, and what actions may be appropriate once an employee reaches the service limit. Here are some tips and suggestions for employers interpreting military orders to determine whether leave is counted toward USERRA's five-year limitation.
Step One: Getting Familiar with Orders and Training Schedules
The appearance of orders varies by branch but tends to follow a similar format. At a minimum, orders should contain the issuing authority (i.e., the specific branch of the armed forces, whether Army,
For routine drill periods, reservists typically have a training schedule for each fiscal year. Orders are not typically issued for routine drill periods, and so the training schedule is the document employers can rely on to verify an employee's military service. Drill periods, like annual training, are exempt from USERRA's five-year limit.
The next step is to identify the statutory authority for the orders. This reference will generally contain "10 U.S.C." or "32 U.S.C." followed by the specific code section. If the orders contain reference to any of the statutory sources under 38 U.S.C. § 4312(c)(1)-(4) (such as service from which a person cannot obtain a release within the five-year limit, certain involuntary orders to active duty, drill and annual training periods, and full-time
Step Three: Doing the Math
The sample chart below assumes the employee is a member of the
Sample Five-Year Limit Service Chart
Order Number/Document Verifying Service | Service Period | Service Length | Statutory Authority or Service Type | Statutory or Branch-Specific Exemption? | Exempt from 5-Year Cap |
XYZ0001 | 14 days | Annual Training 32 | Yes | Yes | |
XYZ0002 | 402 days | 32 | No | No | |
Drill Schedule | 24 days (reflecting one weekend drill per month, 2 days each drill for the 2018 calendar year) | Weekend Drill Periods 32 | Yes | Yes | |
XYZ0003 | 14 days | Annual Training 32 | Yes | Yes | |
XYZ0004 | 182 days | 10 | Yes | Yes | |
XYZ0005 | 94 days | 10 | Yes (Per Secretary of the Army Memo) | Yes |
The employee in this example has performed service in the uniformed services with her current employer for a cumulative total of 760 days through
Key Takeaways
Employees with over five years of cumulative leave with a given employer may still have reemployment rights under USERRA. Before assuming that an employee no longer has USERRA reemployment protections, employers may want to carefully consider USERRA's many exemptions to the five-year cap. Civilian employers have several resources for confirming whether service is counted toward USERRA's five-year limit, including the employee's military chain of command and ESGR.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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