Requirement to rehire
USERRA, 38 USC §§ 4301 to 4312, generally requires employers rehire former employees who left to perform military service even when their return occurs several years later (up to 5, with some periods not counted toward the absence).
Limits on obligation to rehire
Under § 4312(d)(1) an employer is NOT required to reemploy a person IF:
- the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable
- reemployment would impose an undue hardship on the employer, or
- the employment the person left was temporary.
The employer has the burden of proof.
Position to be provided
Under § 4313:
- if uniformed period of service was less than 91 days the person must be reemployed;
- if they are qualified to perform the duties, in the position they would have been employed if they had continuous employment not interrupted by service, or
- in the position employed in on the date of the commencement of the service if not qualified to perform those duties of such position after reasonable efforts by the employer to qualify the person.
- If uniform service was for more than 90 days the person must be reemployed:
- in the position they would have been employed if they had continuous employment not interrupted by service, or a position of like seniority, status and pay, which they are qualified to perform, or
- a position of like seniority, status and pay, which duties the person is qualified to perform, after employer’s reasonable efforts by the employer to qualify the person.
Service related disability
If the person has a disability incurred in or aggravated during service, and (after reasonable efforts by the employer to accommodate the disability) is not qualified due to such disability to be employed in the position they would have been employed if continuously employed not interrupted by service, they must be reemployed:
- in any other position equivalent in seniority, status, and pay, which they are qualified to perform, or
- the nearest approximation.
If a person is not qualified to be employed in such a position for any reason (other than disability incurred in, or aggravated during, service in the uniformed services), and cannot become qualified with the employer’s reasonable efforts, then the nearest approximation to such position the person is qualified to perform, with full seniority.
Competing applicants for a position
If two or more persons entitled to reemployment under § 4312 in the same position apply for reemployment, the first person to leave the position has a prior right to reemployment in that position. Any other person not reemployed for this reason is entitled to be reemployed in any other position as provided in § 4313, that provides a similar status and pay, with full seniority.
Seniority and other rights and benefits
Under § 4316, persons reemployed are entitled to the seniority and other rights and benefits determined by seniority on the date of commencement of uniformed service plus additional seniority and rights and benefits that they would have attained if the person had remained continuously employed.
Right to use vacation or leave
Person whose employment is interrupted by uniformed service is permitted to use any vacation or similar leave with pay accrued by the person before commencing service. No employer may require any such person to use vacation, annual, or similar leave during such period of service. § 4316.
Limits on discharge
A reemployed person cannot be discharged except for cause within one year of reemployment, if uniformed service before the reemployment was more than 180 days, or within 180 days after the date of such reemployment, if the person’s period of service before the reemployment was more than 30 but less than 181 days.
Benefits and retirement contributions accrue during uniformed service
Under § 4318, a reemployed person’s period of uniformed service constitutes service with the employer to determining the nonforfeitability of the person’s accrued benefits and accrual of benefits under the plan.