Iran Conflict Could Cause Surge in Military Leave Requests

Quick Hits

• USERRA requires employers to provide military leave to service members without discrimination or retaliation.
• It is unlawful for private employers to discharge employees within a certain period after returning from military leave.
• Private employers may expect some service members to take military leave this year due to the conflict with Iran.

Employment Protections for Military Leave

Under USERRA, employers are prohibited from discriminating or retaliating against service members for taking military leave. Service members can take a cumulative total of five years of military leave, with certain service types being exempt from this time limit. The United States has about 760,000 reservists and about 450,000 National Guard members.

USERRA is especially nuanced and frequently misunderstood. It covers members of the Army, Navy, Air Force, Marines, Coast Guard, National Guard, Reserves, and Commissioned Corps of the Public Health Service. It requires no advance documentation verifying military service. It protects from discharge for returning service members for up to one year after military leave greater than 180 days and for up to six months after military leave between 31 and 180 days. During these periods, employers may only terminate returning service members for cause.

Compensation and Benefits for Military Leave

A key part of USERRA is the protection of job benefits. The law requires employers to maintain retirement benefits and seniority for service members on military leave. It also requires the continuation of health insurance with certain limitations.

Military leave is generally unpaid.  However, if an employer offers paid leave for comparable non-military absences, such as jury duty, bereavement leave, or sick leave, it may be obligated to pay for short-term military leave, as well.

Upon a request for reemployment, the service member has the burden of proving eligibility for reemployment, including: (i) advance notice of the need for leave, (ii) service not in excess of five cumulative years per employer, (iii) timely application for reemployment, and (iv) a non-disqualifying characterization of service upon release from duty.

Potential Liability for Noncompliance

Legal missteps can result in large penalties for private employers. For example, adverse findings from Employer Support for Guard and Reserve (ESGR) and the Department of Labor Veterans’ Employment Training Service (DOL/VETS) often have negative effects in subsequent litigation if an employer’s refusal to follow the agencies’ advice supports a basis for liquidated damages, now set at a $50,000 floor per USERRA’s January 2025 amendment through the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act (Dole Act).

Similarly, USERRA claims can be well-suited for class-action litigation, particularly on the issue of paid leave. Given USERRA’s construction in favor of the service member and absence of a statute of limitations, class litigation carries the potential for substantial liability.

Additionally, severance and settlement agreements releasing USERRA claims are especially ripe for legal challenges because certain language is required for courts to be convinced of their enforceability, due to USERRA’s broad construction in favor of the service member. Under USERRA, employees can waive past claims, but they cannot waive future rights in a severance agreement.

Next Steps

With conflict in the Middle East continuing, many employers, particularly those in industries that tend to employ high numbers of service members, likely feel a sense of urgency to plan for the potential that their employees could be called up for active duty. As such, employers may want to review and update their written policies to ensure they comply with USERRA. Furthermore, training supervisors to understand USERRA may help to avoid future lawsuits from service members.

Clearly documenting and keeping a record of all military leave requests, records of payment (if applicable), and any subsequent request for reemployment may mitigate legal risk. Further, employers may want to consider legal risks associated with temporarily employing someone to fill the service member’s position while on leave.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and will post updates on the Employment Law and Leaves of Absence blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers new laws and developments in Military Leave. All client-users have access to Snapshots and Updates. Premium subscribers have access to details, updated templates, and other resources. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

James A. Patton, Jr., is a shareholder in Ogletree Deakin’s Birmingham office.

Kimberly S. Davis is an associate in Ogletree Deakin’s Birmingham office. 

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts