The Uniformed Services Employment and Reemployment Rights Act - commonly known as USERRA - is a federal law that provides service members and former service members protections related to the civilian jobs they held before being called up for active duty. The law encourages non-career military service by minimizing civilian employment problems resulting from such service. It also prohibits discrimination and acts of reprisal against members who serve in the uniformed services.
Under USERRA, an employer including any government or private entity, regardless of size, may not deny a person initial employment, promotion, or any benefit of employment because the person performed or is obliged to perform service in a uniformed service. The law applies to all public and private employers in the United States, regardless of size, and applies to any foreign company with a physical branch or location in the United States. Public employers include all federal and state government offices and political subdivisions. You qualify for USERRA protection if you left a civilian job to enter the military service for duty.
The law covers all categories of military training and service, and applies to both National Guard and Reserve military personnel as well as active component personnel. Certain types of service by members of the National Disaster Medical System are also covered by USERRA. Being a member of one of these groups does not, by itself, ensure that you are covered by USERRA's reemployment protections.
To have reemployment rights following a period of uniformed service, a person must meet all of the following eligibility criteria:
- Employment. You must have held a civilian job, which may include temporary jobs.
- Advance notice. You must give advance notice that you will be going on active duty unless such notice is impossible or unreasonable. Advance notice may be given by sending a letter by certified mail, hand-delivering a letter, or by verbal means. An appropriate military representative can also give notice for the service member. If you cannot give advance notice because of military necessity or if advance notice is impossible or unreasonable under the circumstances, you may still be covered by USERRA's protections.
- Maximum period of absence. You cannot be absent from your employer for more than five years. All of your absences from your employer are combined to get this total, as long as you are employed by or seeking reemployment with the same employer. Some periods of military service are exempt from USERRA's five-year cumulative limit, however, such as most periodic and special Reserve and National Guard training, most service in time of war or emergency, and involuntary extensions on active duty. When you start a new job with a new employer you receive a new five-year entitlement.
- Honorable service. Your period of service has to be honorable, as confirmed by discharge certificate or a letter from an appropriate military authority. You may lose your entitlement to USERRA if you are separated under anything but honorable circumstances.
- Prompt return to work. You must return to work promptly or make a timely application for reemployment. The definition of "prompt" depends on the length of your absence. If you are gone up to 30 days, you must report back to the first shift that begins after your military duty ends, allowing for appropriate time for rest and travel. If you are gone 31 to 180 days, you must apply for work not later than 14 days after completing military service. If you are gone 181 days or more, you must apply for work not later than 90 days. If you are late returning to work, you do not necessarily lose the right to your job.
Basic protections provided under USERRA include:
- Anti-discrimination protection. Employers may not discriminate against you in hiring, employment, reemployment, retention, or promotion, or deny you other employment benefits because of your military service.
- Anti-retaliation protection. Your employer may not retaliate against you if you take action to enforce a protection, testify or make a statement in or in connection with a proceeding, participate in an investigation, or exercise a right provided by USERRA.
- Rights and benefits when mobilizing/deploying. Your employer must treat time away from work as furlough or leave of absence and cannot require you to use your vacation, annual leave, or similar leave for time away for military duties. You may opt to use your vacation time to continue receiving paychecks, but your employer cannot require it.
- Rights and benefits while mobilized/deployed. Because employers are required to treat time away as a furlough or leave of absence, non-seniority benefits provided to other employees on furlough or leave of absence must be extended to you as well. For seniority benefits, generally based on time with the company, your employer must treat the time away for military duties as if you were continuously employed. Your employer must provide you the option to elect to continue your health coverage if you wish, however, you may be required to pay more than the full premium.
- Reemployment and reinstatement of health plans. Upon return, you are entitled to reemployment in a position that reflects with reasonable certainty the pay benefits, seniority, and other job prerequisites that you would have attained if you had not left for military service. Your employer is not required to give you your old job back.
Your employer may need time to reassign or give notice to someone who has occupied your position in your absence. If you are no longer qualified to hold a position, your employer must provide training to return you to a qualified status, if such training would not present an undue hardship for the employer. If you choose to return to your company health plan, your employer must reinstate you immediately upon reemployment. There can be no waiting periods or exclusion due to pre-existing conditions, other than for Department of Veterans Affairs-determined service-connected conditions.
- Discharge protection. After returning from deployment, your employer may not terminate you without just cause, if your period of service was beyond 30 days. If your period of service was 181 days or more, you are protected from discharge, except for cause, for one year. If your service was 31 to 180 days, you are protected from discharge, except for cause, for 180 days.
Your employer is not required to pay you for time that you are absent from work for military service. Federal law gives federal civilian employees 120 hours per year of paid military leave. About forty states have similar laws for state and local government employees. And while it isn't a requirement, some private employers offer pay or partial pay during periods of military service. Check with your employer to find out about its paid military leave policy.
Additional Rights and Benefits Under USERRA
Individuals who meet the eligibility criteria under USERRA have seven basic entitlements:
- Prompt reinstatement
- Accrued seniority, as if the person had been continuously employed. This is the "escalator principle," meaning the returning veteran does not step back on the seniority escalator at the point he stepped off, but at the point he would have occupied had he kept his position continuously during his military service
- The "status" the person would have attained if continuously employed includes, for example, location, opportunity to work during the day instead of at night, and the opportunity to work in a department or at such times when there are better opportunities to earn commissions or to be promoted
- Immediate reinstatement of civilian health insurance coverage, if the member does not elect to continue it during service
- Other non-seniority benefits, as if the person had been on a furlough or leave of absence, such as holiday pay or bonuses
- Training or retraining and other accommodations
- USERRA requires an employer to make reasonable efforts to qualify the returning person for work, including training on new equipment or methods. An employer must also make a reasonable effort to accommodate a returning disabled service member otherwise entitled to reemployment. The disability does not need not be permanent in order to confer rights (for example, a broken leg). If disability is such that it cannot be accommodated and disqualifies the person from their pre-service job, the employer is required to reemploy the person in some other position which is most similar to the position to which they are otherwise entitled in terms of seniority, status, and pay.
Potential barriers to reemployment
Under USERRA, if your military service was longer than 30 days, your employer may request documentation that verifies the length and character of your service. Even if such documentation does not exist or is not readily available, reemployment cannot be delayed. This documentation can include discharge papers, leave and earnings statements, a school completion certificate, endorsed orders, or a letter from a proper military authority. In some cases, your employer is not required to reemploy you.
In such cases, it is the employer's responsibility to prove at least one of the following:
- The employer's circumstances have changed so much that reemployment is impossible or unreasonable
- Assisting you in becoming qualified for reemployment would constitute an "undue hardship" on your employer
- The position you held prior to military service was for a brief, non-recurrent period with no reasonable expectation that employment would continue indefinitely
- If you feel you are not being treated fairly
Additional Assistance and Enforcement
Employers may provide greater rights and benefits than USERRA requires, but they cannot refuse to provide any right or benefit guaranteed by USERRA. It is a good idea to learn about the protections under the law well before your separation.
In discrimination cases covered by USERRA, the burden of proof falls on the individual claiming discrimination has occurred. If you feel you are not being treated fairly or in accordance with the law, you may seek resolution through the following methods:
- Employer Support of the Guard and Reserve Ombudsman Services. The ombudsman services assist in preventing and resolving conflicts related to USERRA. The Ombudsman Services Program can offer informal mediation services and referrals to resolve employer conflicts. You can submit questions or request assistance from ESGR through the ESGR Customer Service Center. To find out more about these, speak to your unit's legal office or contact ESGR Ombudsman Services Customer Service Center at 800-336-4590. Resources reference USERRA can also be obtained via the ESGR website
- Department of Labor's Veterans' Employment and Training Service - ‘VETS' provides assistance to persons with respect to employment and reemployment rights and benefits under USERRA. The wide range of services includes outreach activities, USERRA briefings, the USERRA advisor, the e-VETS Resource Advisor, and other web-based materials.
- File action with a court. You can file a court action directly, without filing a complaint with ESGR or with VETS.
NOTE: This article is intended to provide general information only and reflects the law at the time of publication. To find out how the law applies to your individual situation, or how to provide notice in the appropriate way, contact your legal assistance office and or ESGR.