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USERRA can’t protect against all layoffs

It’s a tough time for our economy. Unfortunately, layoffs come hand in hand with an economic downturn. And if you’re a reserve-component member at a company looking to cut costs through layoffs, this could be an even more troubling time for you.

It must have crossed your mind that an impending call-up could push your job to the top of your civilian employer’s list for potential cuts — especially if the layoffs take place while you’re away on duty.

However, under the Uniformed Services Employment and Reemployment Rights Act, you may be eligible for protection against the elimination of your position during a mass layoff and may be entitled to your re-employment rights upon return.

First, assuming that you meet the basic eligibility criteria under USERRA, you are entitled to be treated as if you had been continuously employed upon your return to civilian employment. This is often referred to as the “escalator principle.”

Basically, the escalator principle means that when you return to your job, you do not step back on the seniority escalator at the point you stepped off to report for duty. Instead, you step back on at the point you would have occupied had you kept your position continuously during military service.

The question that comes into play if layoffs occur at your company while you’re on active duty is whether you would have been affected by the layoff if you had not left your job for military service. If the answer is yes, your re-employment rights are unlikely to apply.

USERRA does not entitle you to continued employment that you would not have been allowed even if your civilian career had not been interrupted by military service.

The best way to determine what would have happened to your job is to look at what happened to other employees whose employment tenure and status were as similar to your own as possible.

If their positions were eliminated during your service, it gives us a better barometer of establishing the status of your own job.

Establishing this can be complicated, but it is your best option in determining if your USERRA rights hold up.

Eligible for a different job?

But what if you return from active duty and find that not only were you laid off, but also that the position you held no longer exists? This situation provides a bit more room for your re-employment rights to take effect.

It is possible that if you had not been on active duty, you would have been able to find a vacant position for which you were qualified. It is also possible that you would have been able to use your rights through seniority to displace another employee with less seniority whose position you were qualified for.

If the layoffs at your company are not decided by seniority, you are entitled to re-employment unless your employer can establish that your employment would have been eliminated even if you had not been called to active duty. If your division was laid off, it’s likely that regardless of your service, your position would have been cut as well.

Even if you cannot prove that you wouldn’t have been a casualty of the layoffs through the above possibilities and your position is abolished while you are away for service, you still are entitled to any severance package issued by your employer as if you had been continuously employed upon your return.

If you sense a layoff is coming at your company, take the time to review the rights afforded to you through your service under USERRA. It’s possible that your re-employment rights may come into play in protecting your position in these tough economic times.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.