Ogletree’s Military Workforce Practice Group has highlighted five of the most common legal pitfalls employers face when managing military leave obligations under federal law.
The Uniformed Services Employment and Reemployment Rights Act of 1994, widely known as USERRA, governs the employment rights of workers who serve in the military and places significant obligations on employers.
Jay Patton and Amy Glenos, co-chairs of Ogletree’s Military Workforce Practice Group based in Birmingham, have examined the key areas where employers most frequently go wrong.
The pair cover a range of problem areas, from documentation missteps and paid leave disputes to reduction in force decisions and reemployment position determinations.
Documentation errors are among the most common triggers for USERRA-related claims, with employers often failing to maintain adequate records of military leave requests and approvals.
Paid leave disputes represent another significant area of concern, with confusion frequently arising over whether employees on military leave are entitled to receive the same paid leave benefits as other workers.
Reduction in force decisions involving employees who are on or have recently returned from military service carry particular legal risk, as USERRA provides strong anti-discrimination protections in this context.
Determining the correct reemployment position for a returning service member is another area that catches employers off guard, requiring careful analysis of what role the employee would have attained had they remained continuously employed.
The speakers draw on real settlement figures and controlling case law, including the Supreme Court’s escalator principle established in Fishgold v. Sullivan Drydock, to walk through practical guidance for both voluntary and involuntary military leave situations.
The escalator principle holds that returning service members must be placed in the position they would have occupied had their employment not been interrupted by military service, rather than simply returned to the role they held before leaving.
Patton and Glenos also address USERRA’s statute of limitations, a detail they note catches even experienced HR professionals off guard and one that can significantly affect an employer’s legal exposure.
Employers are advised to ensure HR teams and line managers receive regular training on USERRA requirements, given the complexity of the law and the serious consequences of non-compliance.
The legal risks associated with USERRA violations can be substantial, with employers potentially facing liability for lost wages, benefits, and liquidated damages in cases where violations are found to be wilful.
With the number of employees balancing civilian careers and military service continuing to remain significant across the UK and US workforces, ensuring robust policies are in place has never been more important for employers.