The employer must promptly reemploy the employee when
he or she returns from a period of service if the employee meets the
law's eligibility criteria, described below. "Prompt reemployment"
means as soon as practicable under the circumstances of each case.
Absent unusual circumstances, reemployment must occur within 2 weeks
of the employee's application for reemployment (20 CFR 1002.181).
As a general rule, the employee is entitled to reemployment
in the job position that he or she would have attained with reasonable
certainty if not for the absence due to uniformed service. This is
known as the "escalator position." The principle behind the escalator
position is that, if not for the period of uniformed service, the
employee could have been promoted (or, alternatively, demoted, transferred,
or laid off) due to intervening events. The escalator principle requires
that the employee be reemployed in a position that reflects with reasonable
certainty the pay, benefits, seniority, and other job perquisites,
that he or she would have attained if not for the period of service
(20 CFR 1002.193).
Timing for returning or reapplying. The amount of time a returning employee has to return to his or
her position or reapply for work depends on his or her period of service
(38 USC 4312(e)(1)).
• Period of service for less than 31 days or
for a fitness examination. If the employee's period of
service is less than 31 days or for a period of any length for the
purpose of a fitness examination, the employee must report to the
employer not later than the beginning of the first full regularly
scheduled work period on the first full calendar day following the
completion of the period of service, and following the expiration
of 8 hours after a period allowing for safe transportation from the
place of that service to the employee's residence.
• Period of service for more than 30 days but
less than 181 days. If the employee's period of service
in the uniformed services is for more than 30 days but less than 181
days, he or she must submit an application for reemployment (written
or verbal) with the employer not later than 14 days after completing
service. If it is impossible or unreasonable for the employee to apply
within 14 days through no fault of his or her own, the employee must
submit the application not later than the next full calendar day after
it becomes possible to do so.
• Period of service for more than 180 days. If the employee's period of service in the uniformed services is
for more than 180 days, he or she must submit an application for reemployment
(written or verbal) not later than 90 days after completing service
(20 CFR 1002.115).
These time limits may be extended for up to 2 years if
an individual is hospitalized or convalescing from an injury caused
by active duty. This period for recuperation and recovery extends
the time period for reporting to or submitting an application for
reemployment to the employer and is not applicable following reemployment
(20 CFR 116).
Required documentation on application for reemployment. The employee may be required to submit documentation to the employer
in connection with an application for reemployment if the period of
service exceeded 30 days. If the employee submits an application for
reemployment after a period of service of more than 30 days, the employer
may require the employee to provide documentation to establish that:
• The reemployment application is timely;
• The employee has not exceeded the 5-year limit on duration
of service; and
• The employee's separation or dismissal from service was
not dishonorable, based on bad conduct, or “other than honorable”
(20 CFR 1002.121).
Reemployment position (less than 91 days of
service). Following a period of service of less than 91
days, the employee must be reemployed in the escalator position. He
or she must be qualified to perform the duties of this position. If
the employee is not qualified to perform the duties of the escalator
position after reasonable efforts by the employer, the employee must
be reemployed in the position in which he or she was employed on the
date that the period of service began.
If the
employee is not qualified to perform the duties of the escalator position
or the pre-service position, after reasonable efforts by the employer,
he or she must be reemployed in any other position that is the nearest
approximation first to the escalator position and then to the pre-service
position. The employee must be qualified to perform the duties of
this position.
Reemployment position (more than 90 days of
service). Following a period of service of more than 90
days, the employee must be reemployed in the escalator position or
a position of like seniority, status, and pay. He or she must be qualified
to perform the duties of this position.
If the employee is not qualified to perform the duties
of the escalator position or a like position after reasonable efforts
by the employer, the employee must be reemployed in the position in
which he or she was employed on the date that the period of service
began or in a position of like seniority, status, and pay. The employee
must be qualified to perform the duties of this position.
If the employee is not qualified to perform the duties
of the escalator position, the pre-service position, or a like position,
after reasonable efforts by the employer, he or she must be reemployed
in any other position that is the nearest approximation first to the
escalator position and then to the pre-service position. The employee
must be qualified to perform the duties of this position. The employer
must make reasonable efforts to help the employee become qualified
to perform the duties of each of the positions described above.
Missed skills tests or examinations. If an opportunity for promotion or eligibility for promotion that
the employee missed during service is based on a skills test or examination,
the employer should give the employee a reasonable amount of time
to adjust to the employment position and then give a skills test or
examination. If the employee is successful on the makeup exam and,
based on the results of that exam, there is a reasonable certainty
that he or she would have been promoted or made eligible for promotion
during the time that the employee served in the uniformed service,
the promotion or eligibility for promotion must be made effective
as of the date it would have occurred had employment not been interrupted
by uniformed service.
Termination. Individuals who serve
more than 180 days cannot be discharged without cause for 12 months
after reemployment (38 USC 4316(c)). Those who serve for 31 to 180 days cannot
be discharged without cause for 6 months after reemployment. Individuals
who serve for 30 days or less have no protected period.
Rate of pay. When the employee returns
from service, his or her rate of pay is determined by the same escalator
principles that are used to determine the reemployment position. If
the employee is reemployed in the escalator position, the employer
must compensate him or her at the rate of pay associated with the
escalator position. The rate of pay must be determined by taking into
account any pay increases, differentials, step increases, merit increases,
or periodic increases that the employee would have attained with reasonable
certainty had he or she remained continuously employed during the
period of service.
When considering whether merit or performance increases
would have been attained with reasonable certainty, an employer may
examine the returning employee's own work history, his or her history
of merit increases, and the work and pay history of employees in the
same or similar position. The escalator principle also applies in
the event a pay reduction occurred in the reemployment position during
the period of service. Any pay adjustment must be made effective as
of the date it would have occurred had the employee's employment not
been interrupted by uniformed service (20 CFR Part 2001.236).
Seniority. Returning service personnel
are to be regarded as having been on a leave of absence or furlough
during their period of military service. Upon return, they are eligible
for like seniority, status, and pay. Specifically, this means that
returning service personnel will count their period of military service
as part of their total seniority within the company for such benefits
as pension eligibility and long-service vacation. Similarly, across-the-board
increases, improvements in insurance or other benefits, and all the
other rights or benefits that would probably have been derived from
continued employment must be given to them on the same terms as if
they had been working for the company during the military service
period (38 USC 4316(a)).
Disability. USERRA provides that
an individual with service-connected disabilities who is not qualified
for employment in the position he or she would have attained if continuously
employed (even after reasonable accommodation as required by the Americans with Disabilities Act of 1990 (ADA)) must be
reemployed promptly in any other position of similar seniority, status,
and pay for which he or she qualified or would become qualified with
reasonable efforts by the employer or otherwise in a position that
is the nearest approximation to the equivalent position, consistent
with the circumstances of the employee's case in terms of seniority,
status, and pay.
A position that is the nearest approximation to the equivalent position may
be a higher or lower position, depending on the circumstances (38 USC 4313(a)(3); (20 CFR 1002.225). As with the ADA, the employer is not required to reemploy the
disabled individual if doing so would be of such difficulty or expense
as to constitute an undue hardship (38 USC 4312(d)(1)(B)).
Notice of intent to return. When
the employee leaves his or her job to begin a period of service, the
employee is not required to tell the civilian employer whether he
or she intends to seek reemployment. Even if the employee tells the
employer before entering or completing uniformed service that he or
she does not intend to seek reemployment, the employee does not forfeit
the right to reemployment after completing service. The employee is
not required to decide in advance of leaving the civilian employment
position whether he or she will seek reemployment after completing
uniformed service (20 CFR 1002.88).
Failure to reapply for or return to work. If the employee fails to report for work or apply for reemployment
on time, he or she does not automatically forfeit entitlement to USERRA's
reemployment and other rights and benefits. Rather, the employee becomes
subject to the conduct rules, established policy, and general practices
of the employer pertaining to an absence from scheduled work (20 CFR 1002.117).
If reporting or submitting an employment application
to the employer is impossible or unreasonable through no fault of
the employee, he or she may report to the employer as soon as possible
(in the case of a period of service less than 31 days) or submit an
application for reemployment to the employer by the next full calendar
day after it becomes possible to do so (in the case of a period of
service from 31 to 180 days), and the employee will be considered
to have timely reported or applied for reemployment.
Under the VOW to Hire Heroes Act, employers that hire
veterans who have been unemployed for more than 4 weeks (but less
than 6 months) are eligible for a $2,400 tax credit. For veterans
who have been unemployed for more than 6 months, employers are eligible
for a tax credit of up to $5,600. Tax credits of up to $9,600 are
available for hiring veterans with service-connected disabilities
who have been looking for a job for more than 6 months.
Employers may apply for VOW to Hire Heroes Act credits
within 28 days of hiring a veteran. Employers (including both for‐profit
and not‐for-profit organizations) must submit IRS Form 8850 and either
ETA Form 9061 or 9062 to their local state Work Opportunity Tax Credit
coordinator for certification. ETA is working to revise and issue
ETA Form 9061, and update all other program‐related materials, to
reflect these new tax credits. During this transition period, until
revised forms are issued, employers are instructed to continue to
use the current ETA Form 9061.
Once an employer receives
a certification letter from the state workforce agency, the employer
may then claim the tax credit for certified workers on the employer's
annual income tax returns. For tax purposes, this tax
credit is considered a general business credit. To the extent that
general business credits claimed exceed taxable liability for a given
year, the excess general business credits can be carried back to prior
years or carried forward to future years.