Increase in USERRA Issues Likely to Continue in 2025 and Beyond

Uniformed Services Employment and Reemployment Rights Act of 1994 issues are almost certain to increase under the incoming Trump-Vance administration, which has promised greater border enforcement and signaled that the National Guard may play a role in that function. As a result, employers should take a fresh look at their leave policies to ensure compliance with the current law and anticipated future legal trends.

Employers have seen an uptick in issues related to USERRA due, in part, to the mobilization of Federal Emergency Management Agency reservists to respond to the recent natural disasters in North Carolina and Florida.

EXPANSION OF PAID MILITARY LEAVE

Employers should continue to follow closely the issue of paid leave for uniformed service members. A series of decisions from federal Circuit Courts of Appeals confirmed that employers must offer paid military leave to the same extent they provide paid leave to employees on “comparable,” non-military leave types, including potentially bereavement leave, jury duty, and sick leave, leaving trial courts to grapple with the “comparability” analysis on summary judgment.[1]

Of course, USERRA does not expressly grant service members a right to paid military leave, but rather the right to the same benefits as other similarly situated employees.[2] Service members have sued their civilian employers seeking payment for military leave under the theory that, if the employer offers paid leave for other subsets of employee leave, and that leave is comparable to military leave, the employer is violating USERRA by not offering paid leave to military personnel.

Trial court decisions on the paid leave issue should provide additional guidance to employers to conduct the “comparability” analysis. And we expect these decisions to be appealed, further fleshing out what employers should consider when determining whether military leave is comparable to non-military leave types.

Additionally, on February 19, 2023, the City of San Francisco’s Military Leave Pay Protection Act took effect, which requires employers with 100 or more employees to supplement a covered employee’s military pay during a qualifying military leave by paying the employee the difference between their gross military pay and gross civilian pay (San Francisco, Cal., Labor and Employment Code § 221-23). The covered employee is eligible to receive supplemental pay for up to 30 days each calendar year.

We anticipate this trend of expanded paid leave will continue. To ensure compliance and minimize future risk, employers should evaluate their paid leave programs offered to service members, including to FEMA reservists and other emergency response personnel.

EXPANDED ELIGIBILITY FOR FEMA AND NATIONAL GUARD MEMBERS

Employers should ensure they are providing USERRA benefits and protections not only to employees serving under federal military orders, but also to FEMA reservists and National Guard members. As a reminder, FEMA reservists became eligible for USERRA protections pursuant to the Civilian Reservist Emergency Workforce Act of 2021 (the CREW Act), which President Biden signed into law on September 29, 2022.

Pursuant to the CREW Act, when FEMA reservists are called to respond to a presidentially declared disaster, they are eligible for the same USERRA protections provided to other service members, including protection from termination because of leave. These protections also extend to the training that FEMA reservists attend in preparation for their deployment. In this regard, “military” leave is really a misnomer.

Additionally, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 extended USERRA protections to National Guard members who perform state active duty, including responses to natural disasters. Previously, USERRA excluded call-ups by state governors.

Because many company leave policies do not account for these changes, employers should revisit the scope of their policies to ensure compliance.

A NEW RESOURCE FOR EMPLOYERS

Next, thanks to amendments to Department of Defense Instruction 1205.12, effective November 15, 2024 (the Instruction), employers will have a new resource to verify military leave. The Instruction, which does not apply to non-DoD uniformed services, requires the Reserve Components of the Military Departments and the US Coast Guard to designate an “office of responsibility” to answer employers’ questions related to leaves and service history.[3] The Instruction also permits the office to send documentation to employers to verify dates and length of service and whether the service is exempted from USERRA’s five-year limit on cumulative duration of military leave.[4]

This new resource should be helpful to employers, but it cannot be relied on for all USERRA-related issues. Indeed, several categories of service personnel are excluded from the Instruction, including FEMA reservists.[5]

In addition, the Instruction directs military units to designate representatives to respond to employer concerns regarding the timing, frequency, and duration of employee military service.[6] Although the military retains the discretion to delay, defer, cancel, or reschedule military service, these new points of contact could be beneficial in limiting the impact that increased mobilizations will have on business operations.

IMPLICATIONS

Employers are likely to be grappling with these issues as more and more of their employees are called to serve. The time to prepare is now. Accordingly, employers should confirm their policies and practices comply with USERRA and its latest legal developments. Employers may prepare by developing, or closely reviewing, existing policies, protocols, and forms, in consultation with counsel, to best mitigate legal risk. Now may also be a good time to train managers and HR—and anyone else who might handle USERRA-related issues—on the basic requirements of the law and how such issues should be addressed going forward.