Understanding the Uniformed Services Employment and Reemployment Rights Act
What Employers Must Comply?
USERRA applies to all employers, regardless of size.
Who is Protected?
USERRA broadly defines “service in the uniformed services” and covers all military training and service, including duty performed on a voluntary or involuntary basis whether during times of peace or war. USERRA covers active military duty in the Armed Forces, National Guard, and military reserves. Certain types of service by members of the National Disaster Medical System are also USERRA protected.
All employees and applicants are initially protected by USERRA, including workers in part-time, full-time, or seasonal positions.
A worker loses USERRA under the following circumstances:
- Separation with a dishonorable or bad conduct discharge,
- Separation under other than honorable conditions,
- Dismissal of commissioned officers by sentence of a general court-martial, or
- Dropping commissioned officers from the rolls of the armed forces due to absence without authority for at least three months, sentence to confinement resulting from a court-martial, or due to confinement in a federal or state correctional institution.
Entering the Military
An employee is not required to get the employer’s permission for leave to perform service in the uniformed services. The employee is only required to provide either verbal or written notice of pending service. The notice requirement is waived if it is impossible or unreasonable for an employee to give advance notice, such as when the employer is unavailable or the employee is required to report for duty in an extremely short period of time.
Returning to Work
When an employee leaves the work force for military duty, the employee is not required to tell the employer of their intent to seek reemployment after completing uniformed service. Even if the employee tells the employer that he will not seek reemployment, the employee still does not forfeit the right to reemployment upon completion of service.
Employees on a military leave of absence continue to have reemployment rights as long as the cumulative length of military leave does not exceed five years.
Returning military service members must notify their employer of their intent to return to their job in a timely manner depending on the duration of military leave. USERRA calls the notification to return to work an application for reemployment. However, the returning service member does not have to go through an application process. Notification, even verbal notification, from the service member to the employer is a sufficient application for reemployment.
How long an employee has to return to work depends on the amount of time the employee was in military service.
- For periods of military service up to 30 days or any length for the purpose of a fitness exam:
- The employee must report back to the employer no later than the beginning of the first full regularly-scheduled work period on the first full calendar day following completion of service plus the expiration of eight hours after a period allowing for safe transportation from the place of service to the employee’s residence.
- For periods of military service between 31-180 days:
- The employee must apply for reemployment no later than 14 days after completion of service.
- For periods of military service for 181 or more days:
- The employee has 90 days after completion of service to apply for reemployment.
If the period of service was 31 or more days, the employer may request documentation that:
- The reemployment application is timely.
- The employee has not exceeded the five-year limit on the duration of service.
- The employee’s separation or dismissal from service was not for a disqualifying reason.
The various forms of acceptable documentation include form DD214 Certificate of Release or Discharge from Active Duty, a copy of duty orders, a certificate of completion from military training school, or discharge certificate showing character of service, among others. Even if the documentation is not immediately available, the employer is obligated to promptly reinstate the returning service member.
An employer must return the returning service member to work “promptly” - as soon as practicable under the circumstances of each case. Reemployment must occur with two weeks of the employee’s application for reemployment, absent unusual circumstances.
Employer Obligations
As mentioned in the introduction, USERRA provides broad generous protection of service member’s civilian career. An employer is not just obligated to allow the service member to return to work. The employer must treat the service member as if the service member was at work for purposes of certain wage and benefit issues.
The Reemployment Position
Generally, the employee is entitled to reemployment in the job that they would have attained with reasonable certainty if not for the absence due to uniformed service. This is the position that, if not for the period of uniformed service, the employee could have been promoted or alternatively, demoted, transferred, or laid off. The “escalator” principle requires that the employee be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job benefits that would have attained if not for military service.
The employer must also make reasonable efforts to help the employee become qualified to perform the duties of the escalator position, such as providing training in new job duties or technology.
Protection From Discharge
Upon return from service, employment-at-will does not apply for a certain time period after reinstatement. For military service of 181 or more days, the employee cannot be discharged without cause for one year after reinstatement. If military service was between 31-180 days, the employee cannot be discharged without cause for 180 days (6 months) after reemployment.
Denying Reemployment
Under certain limited circumstances an employer may deny reemployment. An employer may deny reemployment if the employer’s circumstances have so changed as to make reemployment impossible or unreasonable, or reemployment would impose an undue hardship on the employer, or the employee was employed in a temporary capacity with no expectation of continued employment .
Seniority Based Benefits
A seniority-based right or benefit is one that accrues with, or is determined by longevity in employment. For example, a reinstated military service member would be entitled to FMLA leave if the civilian employment combined with military service is 12 or more months.
Another example is vacation eligibility. For determining vacation eligibility, the employer must count the time in military service as time worked for determining vacation eligibility.
Retraining
USERRA requires employers to provide returning veterans with training or retraining they may have missed during their uniformed service in order to qualify for reemployment.
Benefits During Military Leave
Health Coverage Continuation
If the employee has coverage under a health plan in connection with employment, the group health plan must give the employee the option to elect to continue the coverage for a certain period of time.
The employer’s plan must allow a covered employee and dependents to elect to continue such coverage for a period of time that is the lesser of the 24 month period beginning on the first day of the absence related to uniformed service, or the period beginning on the date on which the employees absence begins and ending on the date the employee fails to return from service or apply for a position of employment. If the employee performs uniformed service for less than 31 days, the employee cannot pay more than the regular employee share, if any. If the employee performs service for more than 31 days, he or she may be required to pay no more than 102% of the full premium under the plan.
If there was no notice of service and no election of continuation coverage, the plan administrator may cancel the employee’s health plan coverage upon the employee’s departure for uniformed service, unless the failure to give advance notice was impossible, unreasonable, or precluded by military necessity.
Accrued Leave/Vacation
USERRA does not allow employers to force employees to use accrued paid time off during military service leave, but employees may elect to do so.
Employers must accrue vacation for the absent service member if the employer accrues vacation for employees during other leaves of absence.
Other Sources of Information
The United States Department of Labor has a website explaining
The Veterans’ Employment and Training Service (VETS) provides assistance to any person seeking USERRA information and protection. Here is the contact information for the Arizona VETS office.
Veterans' Employment and Training Service
U.S. Department of Labor
1400 West Washington Street, Suite 123
Phoenix, Arizona 85007
Phone: (602) 542-2516
Fax: (602) 542-4103
An employee may also bring a private action against an employer for USERRA violations. Private actions involve consulting with and retaining a private attorney.