The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer.  For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back.  Instead, the employer must place the employee in the position he or she likely would have had but for the military service.  So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position.  Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service.  This is known as the “escalator” position. 

In addition, if for some reason, the employee is not qualified for the escalator position, the employer cannot refuse to rehire the employee into the escalator position. The employer must make reasonable efforts to qualify the employee.  If the person remains unqualified for the escalator position after reasonable efforts by the employer to qualify the person, then the employer may rehire the person in either the position he had before leaving for military service or a position of like seniority, status, and pay.   A recent case out of New Jersey serves as a good lesson in how an employer can run afoul of USERRA by not rehiring a returning veteran into a position for which he is not qualified.

The employee in Toliver v. Healthcare Commons, Inc. was a mental health screener for a non-profit community mental health agency.  She was also a Sergeant in the Army National Guard.  According to the complaint, when she was hired by Healthcare Commons, Inc. (“HCI”), Toliver did not have a mental health screener certification but was permitted to work without the certification until she completed the necessary course to gain the certification.

In October 2012, Toliver left work for an active duty tour of about 18 months.  Prior to being released, Toliver e-mailed HCI about her anticipated return to work.  HCI informed her that she could not return to work unless she renewed her mental health screener certification, which required fifteen credits of continuing education.  Toliver was unable to get recertified before leaving active duty.  When she was released and requested reemployment, HCI’s attorney sent her a letter informing her that she was not going to be rehired because her screening certification had lapsed.

While it may sound reasonable not to employ someone for a position for which she is not qualified, USERRA requires more.  According to the complaint, HCI did not offer Toliver any assistance in getting her recertification and made no effort to employ her in a position that did not require the certification.

Toliver filed a complaint with the Department of Labor’s Veterans’ Employment and Training Services (“VETS”).  VETS investigated her complaint and determined that it had merit.  Accordingly, VETS referred the claim to the Department of Justice, which instituted the lawsuit on her behalf.  The complaint alleged that HCI violated USERRA by failing to reemploy Toliver in either her escalator position, her pre-service position, or a position of similar seniority and status.  The complaint further alleged that HCI also violated USERRA by failing to make reasonable efforts to qualify Toliver for reemployment.

Toliver and HCI recently settled the case by entering into a consent decree.  Although HCI does not admit to violating USERRA, it nevertheless agreed to pay Toliver $18,500 to resolve the claim.

As the Toliver case should make clear, under USERRA, employers have an obligation to assist employees returning from military service in qualifying for their reemployment position, which is not necessarily the position the employee had before leaving for military service.  And even if the employee cannot qualify for the escalator position after reasonable efforts by the employer to assist her, the employer must nevertheless rehire the employee into her pre-service position or a position of similar seniority, status, and pay.  If you have any questions about your obligations under USERRA, it is a good idea to contact your legal counsel.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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