Return to Work

Reemployment Position
Under USERRA’s “escalator principle,” a returning service member generally must be reemployed in the position the employee would have attained with reasonable certainty if the employee had remained continuously employed, rather than simply the exact position held before military service. The appropriate position may involve a promotion, a demotion, a layoff, or another change that would have occurred if the employee had not left for uniformed service.

For an employee whose most recent period of uniformed service was less than 91 days, the city must apply the following reemployment priority:

• Reemploy the employee in the escalator position, if the employee is qualified to perform its duties.
• Make reasonable efforts to help the employee become qualified for the escalator position.
• If the employee cannot become qualified for the escalator position after reasonable efforts, reemploy the employee in the position the employee held when military service began, if the employee is qualified.
• If the employee cannot become qualified for either the escalator or pre-service position after reasonable efforts, reemploy the employee in the position that most nearly approximates the escalator position and then, if necessary, the pre-service position, with full seniority.

For an employee whose most recent period of uniformed service was more than 90 days, the city generally must reemploy the employee in the escalator position or, when permitted by USERRA, a position of like seniority, status, and pay. If the employee is not qualified for the escalator position after reasonable efforts, the city must place the employee in the nearest approximation to the escalator position for which the employee is qualified. If no such position is available, the city must use the nearest approximation to the pre-service position.

The city must make reasonable efforts, including training or retraining, to help the returning employee qualify for the appropriate reemployment position. Reasonable efforts must be made at no cost to the employee and do not include actions that impose an undue hardship on the city. An employee is qualified when the employee can perform the essential tasks of the position; inability to perform nonessential duties does not make the employee unqualified.

If the employee cannot become qualified for the appropriate position even after the city has made reasonable efforts, the city may be excused from reemployment only as permitted by USERRA’s limited exceptions. The city should consult legal counsel before concluding that no appropriate reemployment position exists.

Promotions and Qualifications
A returning employee may be entitled to a promotion that would have occurred during military service if it is reasonably certain the employee would have received the promotion had employment not been interrupted.

For a promotion based on a skills test, examination, or other qualification requirement, the city must provide the employee a reasonable period to adjust to reemployment and then provide the employee an opportunity to take the test or examination. The amount of adjustment time depends on the circumstances, including the length of military service, the nature of the position, and the employee’s qualifications.

For discretionary promotions, the city must evaluate whether the employee would have received the promotion with reasonable certainty had the employee remained continuously employed. The fact that the promotion involved discretion does not automatically defeat the employee’s escalator-position rights.

Intent to Return and Other Work
An employee leaving employment for military service is not required to decide at the time of departure whether the employee intends to seek reemployment after service. A city may not deny USERRA rights based on an employee’s stated intent not to return unless the employee clearly and unequivocally provides written notice of intent not to seek reemployment. Even such notice does not eliminate the employee’s right to later seek reemployment if the employee otherwise meets USERRA’s requirements.

A returning service member may seek or obtain employment with another employer during the period allowed for reporting to work or applying for reemployment without automatically losing USERRA reemployment rights with the pre-service city employer. However, the employee remains subject to neutral city policies—such as a lawful outside-employment or conflict-of-interest policy—that would constitute cause for discipline or discharge if applied uniformly.

Disqualifying Separation
A service member generally is not entitled to USERRA reemployment rights if the military service ended because of:

• A dishonorable discharge or discharge for bad conduct.
• Separation under other than honorable conditions.
• Dismissal by general court-martial.
• A commuted sentence of general court-martial or, in time of war, separation by order of the President.
• Being dropped from the rolls for an absence without authority for more than three months.
• Separation because of a court-martial confinement sentence or confinement in a federal or state penitentiary or correctional institution.

Pay and Benefits During Leave
USERRA requires the city to treat an employee on military leave as being on furlough or leave of absence. During military leave, the employee is entitled to the non-seniority rights and benefits the city provides to employees on comparable nonmilitary leaves of absence with similar seniority, status, and pay.

USERRA does not require a city to continue the employee’s regular civilian salary during military leave. A city may choose to provide military differential pay, which is typically the difference between the employee’s regular civilian compensation and military compensation. Providing differential pay does not replace or reduce the city’s other USERRA obligations.

Tennessee Paid Leave
Tennessee law provides additional benefits for qualifying public employees. Under T.C.A. § 8-33-109, a city employee who is a member of a reserve component of the U.S. Armed Forces, including the Tennessee Army or Air National Guard, is entitled to leave for qualifying duty or training under competent orders without loss of time, pay, regular leave, vacation, efficiency rating, or other rights and benefits.

The city must pay the employee’s regular salary or compensation for up to 20 working days in each calendar year, plus additional paid days resulting from a call to active state duty under T.C.A. § 58-1-106. After the 20 working days of full pay are exhausted, a city may provide partial compensation or differential pay, but Tennessee law does not generally require the city to do so.

A city should review its personnel policy, any collective-bargaining agreement, and applicable state and federal law before determining military-leave pay or a returning service member’s reemployment position.