As a member of the United States Uniformed Services, you are entitled to special workplace protections under federal law. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protections to members of the Uniformed Services who must leave their civilian employment for a period of time due to activation of military service. USERRA distinguishes military leave from other types of personal leave and thus military leave is governed under federal standards rather than employer based policies.
23. I'm a member of the National Guard and have that experience listed on my resumé. During my job interview, I was asked about whether my Guard unit was likely to be activated soon, and was told that since the company was a small business, it was a hassle to have reservists on the payroll. Can the company refuse to hire me due to my membership in the Guard?
32. My employer put me back to work when I returned, but was obviously not happy about having to do so. In my company, employment is 'at-will.' Does this mean that my employer can let me go at any time?
36. More Information
To minimize the disadvantages that occur when workers need to be absent from their civilian employment to serve in this country's uniformed services, there is a federal law that provides for:
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service, by expanding the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights. USERRA also provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.
USERRA's reemployment rights potentially cover every individual in the country who serves in or has served in the uniformed services, whether voluntarily or involuntarily, and applies to all employers in the public and private sectors, including Federal employers.
The "uniformed services" consist of the following:
"Service" in the uniformed services covers all categories of military training and service, whether performed on voluntary or involuntary basis. It includes:
Unlike many other laws applicable to employees, such as anti-discrimination laws, the employer does not have to have a certain minimum number of employees to be subject to the law's requirements. There are no exceptions for federal or state government employees.
USERRA defines "employer" as: "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities," including:
Generally, the individual must meet five conditions, or "eligibility criteria," to be eligible for reemployment under USERRA. The individual:
USERRA provides for four basic entitlements (if the eligibility criteria listed in the previous question are met):
According to section 4311(a) of USERRA:
"A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services shall not be denied
by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."
According to section 4311(c)(1):
"An employer may not discriminate in employment against or take any adverse employment action against any person because such person has
This provision prohibits retaliation against any person, without regard to military connection, who testifies or otherwise assists in an investigation or other proceeding under USERRA.
When you return from military service, you must be reemployed in the job that you would have had if you had not been absent for military service (known as the "escalator" principle) and with the same seniority, status and pay, as well as other rights and benefits determined by seniority. The escalator principle requires that each returning service member actually step back onto the seniority "escalator" at the point the person would have occupied if the person had remained continuously employed.
The position may not necessarily be the same job you previously held. For instance, if you would have been promoted with reasonable certainty had you not been absent, you would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one you held previously, it could be a different job, or it could conceivably be in layoff status.
Reasonable efforts must be made to enable you to refresh or upgrade your skills so that you can qualify for reemployment. Employers must provide refresher training, and any training necessary to update your skills in a situation where you are no longer qualified for the job due to technological advances. Training will not be required if it is an undue hardship for the employer, as discussed in question 12.
If refresher training is not successful, USERRA provides that you must be reinstated in a position that most nearly approximates the position you originally held. If you are disabled (temporarily or permanently) due to military service, you must also be accommodated in a position most nearly approximating your original position.
If you and/or your dependents have coverage under a health plan in connection with your employment, including a group health plan, and you are absent from your employment due to military service, you may elect to continue such coverage for the lesser of the following two time periods:
If you elect to continue health-plan coverage, you may be required to pay the cost of the coverage (up to 102 percent of the full premium, similar to COBRA requirements) associated with coverage for the employer's other employees. If you served in the uniformed services for less than 31 days, you may not be required to pay more than the employee share, if any, for coverage.
If your coverage under a health plan was terminated because you served in the uniformed services (and were unable to pay the premiums to continue coverage), the plan may not impose an exclusion or waiting period when reinstating coverage upon reemployment, as long you would not have been subject to an exclusion or waiting period if your coverage had not been terminated due to military service. This applies to you upon reemployment and to any of your dependents covered by the plan once you are reinstated.
If and to the extent that your employer provides any other benefits (not relating to health care) to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), the employer must provide similar benefits to employees who are away from work performing service in the uniformed services.
The law entitles you to accrued seniority as if continuously employed, which includes all rights and benefits determined by seniority, such as status, rate of pay, pension vesting, and credit for the period for pension benefit computations.
USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. You can take leave as often as you need ift due to activation to military service, subject to a five-year cumulative limit per employer, in order toand still retain reemployment rights with that employer. If you get a different job with a new employer, you get begin that job with a new 5-year limit.
There are some important exceptions to the 5-year limit:
If you were employed by the same employer both before and after USERRA's effective date of December 12, 1994, duty that you performed under the previous law will count against the USERRA 5-year limit only if that duty counted against the prior law's service limitation.
Assuming you are otherwise eligible for USERRA protection, an employer is not required to reemploy you if:
For example, if your employer engaged in a mass layoff, or eliminated your job function completely while you were away, it would not be required to reemploy you.
Your employer can also deny reemployment if you are no longer entitled to the law's protections, such as after you receive a dishonorable discharge or failed to give your employer notice prior to leaving the job for military training or service.
Yes. As a result of new amendments to USERRA passed in December 2004, employers are now required to post a notice to employees about the legal rights guaranteed by USERRA. This notice must be posted in the place where employee notices are customarily posted, like the employee break room. The Department of Labor has issued the following poster, which incorporates the notice requirements:
Yes. After you have submitted an application for reemployment, your employer can request documentation to establish that:
If you cannot provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy you. If after you are reemployed, however, documentation becomes available that shows that you did not meet one or more of the reemployment requirements, the employer may then terminate you. The termination would be effective as of that moment, but would not operate retroactively.
If you have been absent for military service for 91 or more days, an employer may delay making retroactive pension contributions until you submit satisfactory documentation. However, contributions will still have to be made for you if you were absent for 90 or fewer days.
No. USERRA does not require an employer to pay you for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives federal civilian employees the right to 120 hours (15 days) per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees. Of course, your employer may voluntarily pay you or choose to supplement the difference between your military and civilian salary, but this is not legally required.
If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, the employer is not permitted to make a deduction for a part of a pay period missed because of temporary military leave. This is an FLSA requirement, not a USERRA requirement. For more information, see our overtime exemptions page.
The law requires all employees to provide their employers with advance notice of military service, but does not specify a particular length for the notice period. Circumstances arise, especially in a mobilization scenario, when you may have very little advance notice from military authorities. USERRA's purpose would be defeated if the lateness of the notice to the civilian employer prevented you from later becoming reemployed, especially when you had little or no notice from the military.
Notice may be either written or oral; a copy of their military orders is not required by the law. Notice may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:
The Department of Defense strongly recommends advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.
No. Under USERRA, your employer may not force you to use earned vacation or other leave. Employees are entitled to earned vacation or leave in addition to time off to perform military service.
However, if you request it, you must be permitted to use any vacation that had accrued before the beginning of your military service instead of unpaid leave.
Yes. As long as you meet the eligibility requirements (described in question 5 above) the duration of your employment does not affect your protection under the law, unless your employer can show the job was held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period.
Even if your job was temporary, and not permanent, you still may qualify for protection if you had a reasonable expectation that the job would continue for a significant period.
Yes. As long as you meet the eligibility requirements (described in question 5 above) the nature of your job or job title does not affect your protection under the law.
Yes. As long as you meet the eligibility requirements (described in question 5 above), the law specifically protects employees of the state or federal government.
Yes. As long as you meet the eligibility requirements (described in question 5 above), you may take leave whenever you have been activated for military service.
You do not have to tell your employer in advance about your intentions, and by doing so, could waive certain rights and benefits that would otherwise accumulate in your absence.
If, prior to leaving for military service, you knowingly provide clear written notice of your intent not to return to work after military service, you waive entitlement to leave-of-absence rights and benefits not based on seniority.
At the time of providing the notice, you must be aware of the specific rights and benefits to be lost. If you lack that awareness, or are otherwise coerced into giving notice, the waiver will be ineffective.
Your notice of intent not to return can only waive leave-of-absence rights and benefits. Providing your employer with this notice does not surrender other rights and benefits that you would be entitled to under the law, particularly reemployment rights. This means that even if you have given notice, your employer is still obligated to reemploy you upon your return if you change your mind and want to return.
The law protects from discrimination past members, current members, and persons who apply to be a member of any of the branches of the uniformed services or to perform service in the uniformed services.
The Employer Support of the Guard and Reserves (ESGR) reminds employers:
Hiring a Guardsman or a Reservist makes good business sense. These are disciplined and skilled workers who display pride, leadership, responsibility, and professionalism in what they do. They understand the mission of their civilian jobs and make it a priority to get results, all while displaying a strong work ethic. Service members often possess advanced skills, certifications and education and are more valuable employees and service members and an essential element in sustaining the All-Volunteer Force in the future.
The United States benefits from the contributions of those willing to depart the comforts of home to answer the call of duty. Our service members carry out missions compatible with training, mobilization readiness, humanitarian and contingency operations here in the United States as well as in many countries all over the world. Support at home helps them focus on those missions.
You may wish to re-emphasize these points in any follow-up conversations you have with the employer. If it appears that your past, present, or future connection with the service is a motivating factor in an employer's failure to hire you (or any other adverse employment action against you), the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of your connection with the service. If the employer refuses to hire you, with no other apparent reason for doing so, it may be necessary to pursue a complaint against your employer.
Once you have completed your service obligation, there is a time limit by which you must report back to your employer. The time limit is generally based upon the duration of your military service.
No. The 90 days belong to you, not the employer. If you are anxious to get back on the payroll as quickly as possible, you should submit your application for reemployment right away. If you need time to readjust to civilian life, you should wait to submit your application. Once you apply, you are in effect saying that you are ready, willing, and able to return to work. Do not submit the application until that is the case, unless your reporting deadline is expiring.
USERRA does not require a particular form, as long as you convey to your employer: "I used to work here. I left for service. Now, I am back from service, and I want my job back." Your application for reemployment can also be made orally, or even by implication. The employer should not treat you as if you were applying for a new job, or require you to use "magic words" like "I apply for reemployment" in order to satisfy USERRA's requirements.
However, experts recommend that returning employees make explicit written applications for reemployment. Here are some sample letters:
USERRA specifies that returning service members be "promptly reemployed." What is considered "prompt" will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, if you are seeking reinstatement after five years on active duty, the employer might first need to give notice to an incumbent employee who has occupied the position in your absence, and who might possibly have to vacate that position. However, absent unusual circumstances, the employer must reemploy you within two weeks of your application for reemployment.
Not necessarily, but you are then subject to the the conduct rules, established policy, and general practices of the employer pertaining to an absence from scheduled work, employer's rules governing unexcused absences, which depending on the length of time and the nature of the policy, could lead to termination.
For example, if you were one day late in reporting back to work, and if the usual sanction for one day of unexcused absence is a two-week suspension without pay, you would be entitled to the job but would be subject to the two-week suspension.
If two or more persons are entitled to reemployment in the same position, the following reemployment scheme applies:
So your friend, who left the position first, has the right to be reemployed in the old position, while you are entitled to any other position with similar status and pay.
The employer does not have the ability under USERRA to deny your request for leave. You are only required to give your employer notice, not to obtain permission. Your employer has no right to veto the timing, frequency, duration, or any other aspect of leave, and cannot require you to rearrange your schedule or find a replacement.
If the timing is a problem, your employer may wish to contact your Commanding Officer. It is Department of Defense (DOD) policy that the Commanding Officer should work with employers to resolve scheduling conflicts. The Commanding Officer will accede to the employer's reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment. Rescheduling must be kept to a minimum. National Guard and Reserve units train together, and they must go to war together. The training periods are scheduled so that the unit can be trained together. If an individual unit member undergoes training at a different time, it is likely to be impossible to replicate the training that the rest of the unit received. As a result, the individual unit member may not be able to perform some critical task, resulting in additional casualties and endangering the accomplishment of the mission.
If you satisfy the requirements for USERRA protection, and have submitted a timely application for reemployment, your employer has a mandatory, judicially enforceable obligation to re-employ you. You do not have to prove that the refusal to re-employ you was based on bias against your military service.
The fact that the job has been filled and the new employee has proved to be a stellar performer does not defeat your legal right to re-employment. Sometimes it is necessary to displace another employee in order to reemploy the returning veteran. Congress recognized that this law imposes burdens on employers, and that sometimes those burdens can be severe. However, Congress decided that imposing such burdens on employers is justified by the national defense needs of our nation.
You should not accept the employer's refusal to re-employ you under these circumstances. If the employer refuses to budge and give you your job back, it may be necessary to pursue a complaint against your employer.
Under USERRA, a reemployed employee may not be discharged without cause as follows:
For the discharge to be for cause, it must be based either on conduct or another legitimate nondiscriminatory reason. Your employer must prove that:
USERRA is enforced by the Veterans Employment and Training Service (VETS) of the U.S. Department of Labor. VETS is authorized to investigate and, if meritorious, attempt to resolve complaints of USERRA violations.
Your complaint must be in writing, in the format required by VETS. It must include the name and address of the employer against whom the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.
The law gives VETS a right of access to examine and duplicate employer and employee documents that it considers relevant to an investigation. VETS also has the right of reasonable access to interview persons with information relevant to the investigation. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.
Persons whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the Attorney General, or the Office of Special Counsel, depending on the employer, for possible court action. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant's behalf.
It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under USERRA.
To contact VETS for further information and/or to report a potential USERRA violation,
Office of the Assistant Secretary for Veterans' Employment and Training
U.S. Department of Labor
200 Constitution Avenue, N.W., Room S-1325
Washington, D.C. 20210
If an employer is found to have violated USERRA, remedies available to the employee may include:
The employee may also obtain other forms of relief, such as:
In addition to the relief described above, you may also recover from the employer:
If you believe your rights under USERRA have been violated, you can file a complaint either with a federal administrative agency (VETS of the Department of Labor) or in court. You may wish to consult with an attorney before making the decision about where to file and how to draft your complaint. Unlike some other employment laws, you are not required to first file with an administrative agency before filing in court. If your case is successfully resolved by an administrative agency, however, it may not be necessary to hire an attorney or file a lawsuit (as you will probably be required to waive your legal claims).
Therefore, you may wish to first file with VETS, and then if you are unable to resolve your complaint through VETS, have chosen not to request that VETS refer your complaint to the Attorney General, or have been refused representation by the Attorney General, you can determine at that time whether to file a complaint in court.
USERRA does not contain a statute of limitations, and it specifically bars application of state statutes of limitation. This means that there is no specific filing deadline, unlike most other employment-related statutes, which require you to bring your lawsuit within a specific time period after your employer's action(s) which you allege violated the law. However, for the best chance of success in resolving the complaint, the complaint should be filed as soon after the date of the last action thought to be a violation of USERRA as is possible, if you have been unable to resolve the problem through less formal means.
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