A DISCUSSION OF EMPLOYER OBLIGATIONS UNDERS USERRA BY A VETERAN FAIRFAX, VA BUSINESS LITIGATOR
With the recent reduction of overseas operations in Iraq and Afghanistan, tens of thousands of servicemen and servicewomen are returning to the U.S.—many of them to northern Virginia. Consequently, some of our law firm’s business clients have concerns about the implications of the Uniformed Services Employment and Reemployment Rights Act of 1994. Although USERRA is a well-intentioned law that undoubtedly aids thousands of members of the military, it can be an enormous impracticality for the employer. However, some employers may find relief in the fact that they are not always required to rehire returning employees.
When Are Employers Excused From USERRA Rehiring?
In order to be rehired by a former employer under USERRA, the employee must meet all of the following criteria:
- Employee must provide advance notice of his or her intent to return to work
- Employee’s return to work must be done in a timely fashion in conjunction with his or her release from the military
- Returning employee must not have served more than five years (cumulatively) in the military after leaving employment with this employer
- He or she must not have been dishonorably discharged from the military
If the returning employee fails to meet any of these standards, the employer is under no obligation to hire him or her back.
Even if the employee does qualify to return to work under USERRA, employers may still qualify to be excused from the mandate. An employer may be excused from the mandatory rehiring of an employee under USERRA if he or she can show by a preponderance of evidence that:
- There have been reductions in staffing at the business, which—if the returning service member had remained—still would have caused him or her to lose the job. In other words, the position itself no longer exists because of staff reductions.
- Training or otherwise assisting the returning employee to re-qualify for his or position would cause an undue hardship for the business.
- The position that the employee is trying to return to was only intended to be temporary and no longer exists. The employee should have had no reasonable expectation that the position would have continued for a significant length of time.
Once again, the burden of proof will be on the employer in these cases.
If you are the manager or owner of a business in Fairfax, Alexandria, Prince William, Loudoun, or anywhere else in the Commonwealth of Virginia, and you want to know how USERRA affects your company, contact a reputable business and labor attorney for legal advice.
