11th Cir. Pattern Jury Instr. (Civil) 4.20

In this case, [name of plaintiff] makes a claim under the Uniformed Services

Employment and Reemployment Rights Act, also called USERRA.

Under USERRA, employees who leave civilian jobs to serve in the military

are entitled to reemployment rights and benefits upon their return from service.

[Name of plaintiff] claims [he/she] was entitled to be reemployed by [name of

defendant]. [Name of defendant] denies [name of plaintiff] was entitled to such a

right.

To succeed on [his/her] claim, [name of plaintiff] must prove each of the

following facts by a preponderance of the evidence:

First: [Name of plaintiff] left employment with [name of

defendant] to perform service in a uniformed service;

Second: [Name of plaintiff] gave [name of defendant] advance notice

of the service – unless it was impossible or unreasonable to

give notice;

[Third: The cumulative length of [name of plaintiff]’s absences from

employment with [name of defendant] due to periods of

military service was not more than five years;]

Fourth: After completing the service, [name of plaintiff] timely

returned to [name of defendant] or applied for reemployment

with [name of defendant]; and

Fifth: [Name of plaintiff] was separated from the service under

honorable conditions.

[Name of Armed Forces Branch/Army National Guard/Air National Guard]

is a “uniformed service.”

For the first element, “service in a uniformed service” means the voluntary

or involuntary performance of duty. It includes:

(a) active duty;

(b) active duty for training;

(c) initial active duty for training;

(d) inactive duty training;

(e) full-time National-Guard duty;

(f) a person’s absence from a position of employment for an

examination to determine the person’s fitness to perform any of

these duties; and

(g) a person’s absence from employment for performing funeral -

honors duty.

For the second element, if you find that [name of plaintiff] left employment

with [name of defendant] to perform service in a uniformed service, you must

decide whether [name of plaintiff] gave [name of defendant] advance notice of

[his/her] obligation [or was excused from giving notice because it was impossible

or unreasonable]. The advance notice to [name of defendant] of [name of

plaintiff]’s obligation or intention to perform military service can be written or

oral, and it may be informal.

[For the third element, add up the number of days or months that [name of

plaintiff] was absent from his employment with [name of defendant].]

For the [third/fourth] element, a “timely return” depends on how long [name

of plaintiff]’s period of service was.

[Period of service less than 31 days or for a period of any length for the

purpose of a fitness examination: To establish a timely return for purposes of

reemployment, [name of plaintiff] must prove by a preponderance of the evidence

that [he/she] reported to [name of defendant] no later than the start of the first full

regularly scheduled work period on the first full calendar day after [he/she]

completed service – except that [he/she] is not required to report before eight hours

past the time needed for safe transportation from the place of service to [his/her]

home. For example, if [name of plaintiff] completes [his/her] service, travels home,

and arrives at ten o’clock in the evening, [he/she] cannot be required to report to

[name of defendant] earlier than six o’clock the next morning- eight hours after

arriving home.

If it is impossible or unreasonable for [name of plaintiff] to report within that

period through no fault of [his/her] own, [he/she] must report to the employer as

soon as possible after the eight-hour period.]

[Period of service more than 30 days but less than 181 days: To establish

a timely return for purposes of reemployment, [name of plaintiff] must prove by a

preponderance of the evidence that [he/she] applied to return to work no later than

14 days after [he/she] completed the military service. The application that [name of

plaintiff] submitted does not need to follow any particular format and [he/she] may

make it orally or in writing. If it is impossible or unreasonable for [name of

plaintiff] to apply within 14 days through no fault of [his/her] own, [he/she] must

submit the application to [name of defendant] not later than the next full calendar

day after it becomes possible to do so.]

[Period of service more than 180 days: To establish a timely return for

purposes of reemployment, [name of plaintiff] must prove by a preponderance of

the evidence that [he/she] applied to return to work no later than 90 days after

[he/she] completed the military service. The application that [name of plaintiff]

submitted does not need to follow any particular format and [he/she] may make it

orally or in writing.]

[Prompt reemployment: To prove that [name of defendant] violated the

reemployment requirement of USERRA, [name of plaintiff] must prove by a

preponderance of the evidence that [name of defendant] failed to offer [him/her]

reinstatement as soon as was practicable under the circumstances. Uncertainty or

mistake about what rights USERRA grants – on the part of either [name of

plaintiff] or [name of defendant] – does not affect USERRA’s prompt

reinstatement requirement. [Name of defendant] must prove that unusual

circumstances justified or excused any delay in [name of plaintiff]’s

reemployment.]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff] left employment with [name of defendant]

to perform service in a uniformed service?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

2. [That [name of plaintiff] gave [name of defendant] advance notice

of the service/That it was impossible or unreasonable for [name of plaintiff]

to give advance notice of the service]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

[3. That the cumulative length of [name of plaintiff]’s absences from

employment with [name of defendant] because of military service does not

exceed five years?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.]

4. That [name of plaintiff] timely returned to [name of defendant] or

timely applied for reemployment with [name of defendant] after completing

the service?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your

foreperson should sign and date the last page of this verdict form. If your

answer is “Yes,” go to the next question.

5. That [name of plaintiff] was separated from the service under

honorable conditions?

Answer Yes or No _____________

SO SAY WE ALL.

___________________________

Foreperson’s Signature

DATE: ___________________