Jan 15

How Service Members Can “Turn Back Time” on USERRA’s Five-Year Limit

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Sailors can cheer: USERRA's five-year limit has many exceptions.

Sailors can cheer: USERRA’s five-year limit has many exceptions.

If Cher could turn back time, Chaz Bono would still be Chastity. In the real world, Reservists and Guardsmen can’t turn back time on the five-year limit of the Uniformed Services Employment and Re-Employment Rights Act (USERRA) – at least not without an exception. Finding an exception to the five-year limit is important because USERRA doesn’t require an employer to reemploy a returning service member if the cumulative length of all of his leaves of absence for “service in the uniformed services” exceeds five years.1 Fortunately, three major categories of “service in the uniformed services” are exempt from the five-year rule.

The Three Major Categories of Exceptions to USERRA’s Five-Year Limit

The right to reemployment under USERRA extends to employees who have been absent from their civilian employment by reason of service in the “uniformed services.” The “uniformed services” break down into several categories: (1) the five active duty branches (Army, Navy, Marine Corps, Air Force, and Coast Guard); (2) the seven part-time branches (the five active duty branches’ reserve components, Army National Guard, and Air National Guard); (3) the Commissioned Corps of the Public Health Service (i.e., the Surgeon General); and (4) any other category that the President may designate in a time of war or emergency.

Just about any occasion that requires a service member to don a uniform will qualify as “service.” Everything from inactive duty for training and full-time Guard duty to a fitness-for-duty exam and funeral honors duty is “service.”2 Three categories of service are exempt from the five-year limit: (1) service to fulfill an initial period of obligated service or inability to obtain release from service that exceeds five years; (2) mandatory drill and annual training that the military certifies as necessary for professional development or skill training; and (3) service during time of war or national emergency or for other critical missions/contingencies/military requirements.

The first category of exempt service arises in two situations. The first situation is when a service member must serve more than five years to complete an initial period of obligated service.3 For example, Marine Aviation, the Navy Nuclear Power Program, and certain other military occupational specialties require more than five years of initial active service. The second situation is when a service member is unable to obtain a release before the end of the fifth year of service. But his inability to get a release can’t be his fault. Thus, a sailor’s who can’t obtain a release only because a storm threw his ship off course can sail into this safe harbor.

The second category of exempt service is for mandatory drill and annual training and any additional training requirements that the relevant service secretary certifies in writing as necessary for professional development or skill training/retraining.4 Significantly, the two-week annual training sessions and monthly weekend drills that Guardsmen and Reservists must participate in are exempt from the five-year limit. But Guardsmen and Reservists should be careful not to confuse the second category as an exemption for all Guard or Reserve duty. In most cases, service in the Active Guard Reserve (AGR) program and similar non-training programs is non-exempt.5

The third category of exempt service is for service during time of war or national emergency or for other critical missions/contingencies/military requirements.6 This broad category became especially important for Guardsmen and Reservists in the wake of Executive Order No. 13224 (which declared a national emergency in response to the September 11, 2001 terrorist attacks) and Executive Order No. 13303 (which declared a national emergency in response to the “threat of attachment” and “other judicial process” against “Iraqi petroleum” and other interests). The effect of these orders is to make AGR duty exempt if it sufficiently relates to the War on Terrorism and/or Iraq.

What Can a Service Member Get If His Employer Fails to Promptly Reemploy Him?

In any USERRA case, an employee can recover generous compensation. In an ordinary case, he can recover lost benefits, back pay, and, if there’s too much water under the bridge for reinstatement to be a viable remedy, front pay.7 If, however, his employer “willfully” (i.e., knowingly or recklessly) refuses to reemploy him or otherwise violates USERRA, the employee can recover liquidated damages in an amount equal to double his lost benefits and back pay (unless his employer is the federal government).8 Moreover, a prevailing employee, but not a prevailing employer, may recover attorney’s fees, expert witness fees, and other expenses and costs.9

But a service member can’t just sit around and let his lost wages pile up so he can sue his employer for more.10 He must mitigate his damages by making reasonable efforts to seek suitable work.11 For a service member who is at or near the five-year mark, the duty to mitigate damages appears to create a dilemma: either work and go over the five-year limit or don’t work and fail to mitigate damages. USERRA solves the problem by exempting service that exceeds the five-year limit if the service member performed such service to “mitigate economic harm where the…employer is in violation of its employment or reemployment obligations…”12

  1. 38 U.S.C §4312(a). 

  2. 38 U.S.C. §4303. 

  3. 38 U.S.C §4312(c)(1), (2). 

  4. 38 U.S.C §4312(c)(3). 

  5. See, e.g., 5 C.F.R. §353.203(b). 

  6. 38 U.S.C §4312(c)(4). 

  7. See Graham v. Hall-McMillen Co., 925 F.Supp.437, 443-446 (N.D. Miss. 1996). 

  8. 38 U.S.C. §4323(d)(1)(C). 

  9. 5 C.F.R. §1201.202(a)(7). 

  10. Serricchio v. Wachovia Securities, LLC, 606 F.Supp.2d 256, 262 (D. Conn. 2009). 

  11. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). 

  12. 20 C.F.R. §1002.103(b). 

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.