What Is USERRA? What Employers Need to Know

Employers don’t encounter requests under the Uniformed Services Employment and Reemployment Rights Act (USERRA) as often as requests under other federal workplace laws, but they do occur. As an employer, it’s important to understand your responsibilities under the law.

What does USERRA do?

USERRA protects service members’ rights to their job when they come back from military obligations. It prohibits employer bias based on past and present military membership.

Employers cannot discriminate against service members by denying:

• Employment
• Reemployment
• Retention in employment
• Promotions
• Employment benefits because of military status

USERRA also protects disabled veterans. Employers must accommodate a service member’s disability using “reasonable effort.”

The Labor Department’s Veterans Employment and Training Service (VETS) handles USERRA complaints.

USERRA protects service members’ rights to their job when they come back from military obligations. It prohibits employer bias based on past and present military membership.

History

Former President Bill Clinton signed USERRA into law in October 1994.

Law firm Outten & Golden has noted that USERRA encourages “non-career service in the Armed Forces through participation in the Guard and Reserves” by eliminating the disadvantages that “service members can face in their civilian careers.”

Who does USERRA cover?

All employers must comply with USERRA. It covers all employees with uniform service obligations in the:

• Air Force
• Army
• Coast Guard
• Marine Corps
• Navy
• Public Health Service Commissioned Corps
• Air National Guard
• Army National Guard
• Military reserves of each service

Uniformed service includes training, active duty, fitness for duty exams, and funeral service honors.

USERRA covers non-full-time employees. A federal appeals court ruled in 2018 that a fitness trainer who was not guaranteed shifts and was called away for 3 weeks of mandatory military training was covered by the federal law. The court said USERRA regulations make it clear that the law applies to probationary, part-time, temporary, and seasonal employees.

How does USERRA work?

Employees can provide either written or oral notice that they’re taking military leave. They don’t have to provide proof. Workers should give notice as soon as possible.

Employee rights upon return from USERRA leave

if the employee would have gotten a promotion during the time they were out on leave, the worker must receive the promotion upon return.

The employer must rehire the worker upon return from military leave.

USERRA has an important difference from the reemployment rights provided by the Family and Medical Leave Act and the Americans with Disabilities Act. Employees under those laws have a right to be reinstated to the job they had before going out on leave. USERRA, however, requires that returning service members be given the job they would have had if not for the military leave absence. The returning service member must receive the same seniority and pay. It’s called the “escalator principle.” This means that if the employee would have gotten a promotion during the time they were out on leave, the worker must receive the promotion upon return.

Employers must also provide training or retraining that allows the returning service member to perform the job. If the employee cannot qualify for the “escalator” job, they must receive a comparable job, if qualified.

USERRA also requires that, while undertaking military service, an individual be given the same non-seniority rights and benefits provided to workers on non-military leaves of absence.

Return in a timely manner

Employees have deadlines for submitting an application for reemployment or for returning to their civilian jobs. The timeframes depend on the service member’s time away from work. Here’s what the rules are when military service lasts:

• Less than 31 days: If employees are absent for less than 31 days, a timely return to work occurs by the start of the first regularly scheduled work period that falls after the calendar day of duty ends — along with the required time to get home safely plus 8 hours to rest, according to the U.S. Department of Labor.
• 31 to 180 days: The service member must re-apply within 14 days of the military service ending.
• More than 180 days: The employee must apply within 90 days of the end of military service.

A service member generally retains reemployment rights for five years.

No retaliation

Employers cannot retaliate against those who take advantage of USERRA’s protections.

Health benefits

USERRA also addresses health and pension plan coverage.

Health care coverage is provided as usual if military services lasts less than 31 days.

If military service lasts more than 30 days, service members can continue their employer-sponsored health plan for up to 24 months.

Pension plan protection

USERRA treats workplace absences caused by military obligations as uninterrupted employment for vesting, pension plan participation, and benefits accrual.

Notices and posters

Eligible workers must be provided with a notice of their rights and benefits and employer obligations under the federal law. The notice can be posted in the usual place for notices or sent via mail, including email.

Recordkeeping, reporting, penalties

USERRA does not have any recordkeeping or reporting requirements. Penalties can include lost wages and benefits.

Relation to state laws

USERRA does not preempt state laws that provide greater protection for service members. However, it does preempt state laws that provide fewer protections.