Employment Law

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law designed to ensure that people who serve their country through military service are not disadvantaged in the civilian workforce. Historically, there have been employment issues when individuals were drafted or when Reservists and National Guard troops were called to active duty. They would return home and find they had been replaced, and no comparable jobs were available. USERRA was passed to hold employers accountable and prevent service members from being penalized for serving in the armed forces.

Enacted in 19941, USERRA provides employees who voluntarily or involuntarily take time off from work to serve in the uniformed services with up to five-years of job and benefits protection2. This document summarizes some of the rights and obligations related to the employment, reemployment, and retention of servicemembers under USERRA.

Does USERRA apply to all employers?

USERRA applies to all private and public employers in the United States. It does not matter if the employer is an individual or a corporation; nor does it matter whether the employer has 2 employees or 2000. They must all comply with USERRA requirements.

The statute covers employees but not independent contractors. Specific factors distinguish an employee form an independent contractor, such as:

  • the degree of control the employer has over how the work is performed;
  • whether the service or job being performed is an integral part of the business;
  • whether the relationship is permanent or temporary;
  • whether the equipment used for the work belongs to the worker or the employer. 

How Does USERRA Benefit the National Guard and Reserves?

If a person is called to active duty, they have the right to know their time away from the job will not work to their disadvantage; that they can be promptly reemployed in their civilian job upon their return home. There are employers who find it inconvenient to have employees in the Reserves or the National Guard. They know these workers will need to be absent at specific times for training and meetings. They also know these individuals may be called to active duty at some point, and they would rather not deal with the resulting staffing issues.

USERRA (38 U.S.C. §§ 4304, 4312; 20 C.F.R. 1002.32) states that an employer may not discriminate against a person for being in the Reserves or National Guard by: (a) denying an initial employment application, (b) refusing reemployment following active duty, (c) refusing to retain them because they may be deployed, (d) failing to give a merited promotion, or (e) denying any employment benefit other employees receive. (38 U.S.C. § 4311; 20 C.F.R. 1002.18–20 C.F.R. 1002.19).

Members of the regular military services, the Reserves, and the National Guard have a legal right to return to work after a period of federal military service. To be eligible for reemployment protection, the service member must:

  • provide advanced written or oral notice of service;
  • have been called away from work for no more than five years of cumulative time in the uniformed service;
  • timely return to work or apply for reemployment; and
  • serve under honorable conditions.

Upon return, the employer must timely reinstate the servicemember, and grant their status, seniority, and benefits as if they had never left for military service.

An employer is not required to give an employee the same job they had when called to duty. Rather, an employer must provide a job of like seniority, status and pay that the service member would have held but for the employment break due to service. In addition, if a job of like seniority, status, and pay is not available, an employer must provide an elevated position. An employer is also obligated to reinstate the service member’s health insurance and to provide training or retraining of job skills, as necessary.

Reasonable accommodations for service-related disabilities 

An employer must make reasonable efforts to accommodate the needs of a service member who develops a service-related disability, or one who has a disability that is aggravated by their service, and to help the service member become qualified for reemployment. (38 U.S.C. § 4313; 20 C.F.R. 1002.225). If the service member is not able to perform the position they would have otherwise been entitled to under USERRA, the employer, after reasonable attempts to accommodate the service member, must attempt to reemploy the service member at a position that is equal in seniority and pay to the position. If no such position exists, the employer is obligated to place the service member in a position the service member is able to perform that is the nearest equivalent in terms of seniority, status, and pay to what they would have been entitled to under USERRA.

Protection from termination without cause 

USERRA prohibits an employer from discharging a reemployed employee without cause: (1) For one year after the date of reemployment if the person’s period of military service was for 181 days or more; (2) For 180 days after the date of reemployment if the person’s period of military service was for 31 to 180 days.

An employer may discharge an employee for cause based on their conduct or on the application of legitimate nondiscriminatory reasons. Persons who serve for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of their military service.

Preservation of health insurance and benefits 

Service members may elect to pay the premiums and continue their health benefits while away on military service3. Health plans may be continued for up to 24 months. Upon reintegration, the employer must reinstate health insurance without any waiting period. The employer may not limit or restrict coverage based on preexisting conditions except for conditions that result from the employee’s military service.

An employer is required to treat the service member as if they have been employed throughout the entire absence for pension purposes. If the plan requires employee contributions, the service member must continue to make such contributions during his or her absence. The service member may repay the pension plan upon reemployment for either 5 years or 3 times the length of service (whichever is shorter).

Filing a complaint

To file a formal complaint for a USERRA violation, contact the U.S. Department of Labor, Veterans Employment & Training Service (DOL-VETS) at (866) 487-2365 or use the DOL website: https://osc.gov/Services/Pages/USERRA-FileComplaint.aspx

If a person decides to file a complaint, the DOL-VETS will investigate and try to resolve it on their behalf. If the department cannot resolve the complaint, they have a right to ask for representation from the OSC (U.S. Office of Special Counsel) or from the U.S. Department of Justice.

Resources

Department of Labor: Your Rights Under USERRA

Department of Labor: How to File a USERRA Complaint

Military One Source: The Uniformed Services Employment and Reemployment Rights Act

United States Department of Justice: Uniformed Services Employment and Employment Rights Act of 1994

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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