Jan 6

How a Service Member Can Ride the USERRA Escalator to the Top

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If your employer can't handle the truth about USERRA, you can order a "Code Red" and get up to double your lost wages and benefits.

If your employer can’t handle the truth about USERRA, you can get double damages.

If an employer wants to know the truth, the Uniformed Services Employment and Re-Employment Rights Act (USERRA) prohibits him from failing to promptly reemploy a returning service member after he timely reports back to work. Generally, that means the employer must reemploy him in the position that he would’ve attained had his military service not interrupted his employment – i.e., the escalator position. If the employer can’t handle the truth, the service member can order a “Code Red” and get double his lost wages and benefits.1 If you’re in the service, here’s how to ride the USERRA escalator all the way to the top.

When Johnny Comes Marching Home, He Has a Right to Reemployment

USERRA generally entitles a returning service member to an

USERRA generally entitles a returning service member to an “escalator” position.

If a service member timely reports back to work or applies for re-employment, his employer must “promptly” reemploy him, i.e., as soon as is practicable.2 How soon employer may “practicably” reemploy a service member depends on the circumstances of each case. In the case of a short-term deployment, an employer must generally reemploy a service member within two weeks after he reports back to work.3 For example, prompt reemployment after weekend Guard duty generally means the “next scheduled working day.”4 In contrast, prompt reemployment after several years of active duty might be two weeks – enough time for the employer to find the service member’s replacement another job.5 

But an employer can’t just reemploy a service member in his old job. The exact reemployment position the service member will end up in largely depends on the length of his most recent military service.6 If a service member’s service lasts 90 days or less, his employer must reemploy him in the position that he would’ve been reasonably certain to attain if his military service hadn’t interrupted his employment – i.e., the escalator position.7 That’s true even if the service member is unqualified for the job when he reports back to work. That’s because USERRA requires an employer to make all reasonable efforts to help qualify the service member for the escalator position.8

Failure isn’t an option. Even if an employer’s reasonable efforts fail to qualify a service member for the escalator position, the employer must reemploy the service member in his pre-deployment position, provided that he’s qualified or, with the employer’s reasonable efforts, could become qualified.9 If even those efforts also fail, however, his employer can’t just terminate him. Instead, the employer must still reemploy him in “any other position” that most “nearly approximates” the escalator position or pre-deployment position (in that order) if he’s qualified or, with his employer’s reasonable efforts, could become qualified for that position.10

Service members who return from longer deployments face different rules. If a service member’s service lasts 91 days or more, his employer must reemploy him in either the escalator position or a position of like status, seniority, and pay – a “like position.”11 If the employer’s efforts fail, he must still reemploy the service member in either his pre-deployment position or a like position.12 If those efforts fail, the employer must reemploy the service member in any other position that most nearly approximates the escalator position or pre-deployment position – in that order. For each of these positions, the service member must be qualified or, with his employer’s reasonable efforts, able to become qualified for the position.13

Many employers think they can fire a returning service member if all reasonable efforts fail to qualify a service member. Not so fast. To be “qualified,” a service member need only be able to perform the “essential tasks” of the job.14 Whether a task is essential depends on several factors: (1) the employer’s judgment; (2) written pre-hiring job descriptions; (3) the time it takes to perform the function; (4) the consequences of not requiring the service member to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of the service member’s predecessors in that job; and/or (7) the current work experience of his co-workers in similar jobs.15

How an Employer Can Dodge His Duty to Reemploy a Returning Service Member

USERRA carves out three narrow exceptions to the duty to reemploy.

USERRA carves out three narrow exceptions to the rule that an employer must reemploy a returning service member.

But USERRA doesn’t require an employer to reemploy a service member if circumstances have changed so much that reemployment would be “impossible or unreasonable.”16 The purpose of this exception is to save employers from creating useless jobs.17 This exception thus applies when a reduction in force would’ve included the service member.18 But reemployment must be more than inconvenient or undesirable.19 For example, reemployment isn’t unreasonable just because an employer would have to fire a junior nonveteran replacement.20 Similarly, the exception doesn’t apply just because no opening exists when the service member reports back to work.21

USERRA also doesn’t require an employer to reemploy a service member if making reasonable efforts to qualify him for a position would be an “undue hardship.”22 But the “undue hardship” exception only applies if the employer’s action would be “significant[ly]” difficult or expensive.23 Factors to determine whether an action is an undue hardship include: (1) its nature and cost; (2) the facility’s overall financial resources and the number of persons employed there; (3) the employer’s overall financial resources and the number, type, and location of his facilities; and (4) the employer’s type of operation(s) and the facility’s geographic separateness and administrative or fiscal relationship to the employer.24

Finally, USERRA doesn’t require an employer to reemploy a service member if: (1) his employment is for a “brief, non-recurrent period”; and (2) he doesn’t reasonably expect that it will continue “indefinitely or for a significant period.”25 USERA doesn’t define “brief,” but in one case, a federal court held that a four-year employment term wasn’t “brief.”26 Similarly, USERRA doesn’t define “significant period,” but in one case, a federal court held that a significant period was one that would give an employee “some semblance of security or offer the ability to engage in long-term planning.”27 Thus, an employment term lasting weeks or months likely isn’t a “significant period.”28


  1. 38 U.S.C §4323(d)(1)(B), (C). 

  2. 20 C.F.R. §1002.180. 

  3. 20 C.F.R. §1002.181. 

  4. Id

  5. Id

  6. 20 C.F.R. §1002.195. 

  7. 20 C.F.R. §1002.191. 

  8. 20 C.F.R. §§1002.191, 1002.192, 1002.196(a). 

  9. 20 C.F.R. §1002.196(b). 

  10. 20 C.F.R. §1002.196(c). 

  11. 20 C.F.R. §1002.197(a). 

  12. 20 C.F.R. §1002.197(b). 

  13. 20 C.F.R. §1002.197(c). 

  14. 20 C.F.R. §1002.198(a)(1). 

  15. 20 C.F.R. §1002.198(a)(2). 

  16. 20 C.F.R. §1002.139(a). 

  17. Davis v. Crothall Services Group, Inc., 961 F.Supp.2d 716, 728 (W.D. Penn. 2013). 

  18. Id

  19. Kay v. General Cable Corp., 144 F.2d 653, 655 (3rd Cir.1944). 

  20. Goggin v. Lincoln St. Louis, 702 F.2d 698, 703-04 (8th Cir.1983). 

  21. Fitz v. Bd. of Educ. of the Port Huron Area Sch., 662 F.Supp. 1011 (E.D. Mich. 1985). 

  22. 20 C.F.R. §1002.139(b). 

  23. 20 C.F.R. §1002.5(n). 

  24. Id

  25. 20 C.F.R. §1002.139(c). 

  26. United States v. Nevada, 817 F. Supp. 2d 1230, 1245-46 (D. Nev. 2011). 

  27. Slusher v. Shelbyville Hospital Corp., No. 15-‐5256 (6th Cir. 2015). 

  28. Id. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.