Military Service Employment Rights Under the USERRA

Military service members make significant sacrifices in service to their country. To recognize this effort, federal laws provide crucial protections through the Servicemembers' Civil Relief Act (SCRA) and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

The USERRA safeguards the employment rights of servicemembers when they leave their civilian jobs for military duty. Meanwhile, the SCRA offers various financial and legal aid to military service members during active service.

This article explains employment protections under the USERRA. For more information about SCRA, see FindLaw's article What Is the Servicemembers Civil Relief Act (SCRA)?

USERRA Employment Protections

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects those departing civilian jobs for U.S. military service from employment discrimination and upholds their employment rights. It ensures that those who voluntarily or involuntarily left their civilian jobs to serve in the military can regain their jobs after service.

USERRA requires employers to reinstate certain servicemembers in their civilian jobs if they leave for uniformed service. This includes:

• Active duty
• Active duty for training
• Inactive duty training
• Initial active duty training
• Funeral honors duty

When someone returns to work after military service, their employment position should be at the level of seniority they would have had they not left for military duty.

Who Is Covered By the USERRA?

USERRA protects the following groups:

• Members of the U.S. armed forces
• Reserves
• Members of the National Guard or on National Guard Duty
• Other uniformed services such as the National Disaster Medical System, Coast Guard, and the Commissioned Corps of the Public Health Service

You also must meet the eligibility requirements for reinstatement, discussed below.

Requirements for Reinstatement Under USERRA

Employers must reemploy the service member if:

• Before leaving, the employee gave the employer advance notice of the military service (unless impossible or unreasonable because of military necessity)
• The employee's absence because of military service did not exceed five years
• The employee was given an honorable discharge at the end of military service
• The employee applies for reemployment in a timely manner

USERRA requires that employers make reasonable efforts to reinstate service members into suitable positions. The employer cannot fire the service member without cause for up to one year after reinstatement.

Exceptions to USERRA

Some exceptions exist to a service member's right to reinstatement under the USERRA. The employer does not have to rehire a returning service member if:

• Workplace changes make it unreasonable or impossible to reinstate the employee
• Reemployment of the returning service member would create an undue hardship on the employer
• The service member's employment before service was brief, and there was no reasonable expectation that employment would continue for an extended period

Frequently Asked Questions About Military Employment Rights

When should I return to work after completing military service?

The timeframe on when you should return to work depends on the length of your service:

• 31 days or less: Report to work at the start of the next regular work period. This should be on the first full day after your release from duty, giving you enough time to travel home and rest for 8 hours. If this time period is impossible, you should return as soon as possible.
• 31 to 180 days: Submit your reemployment application within 14 days after the end of your military service. If circumstances beyond your control prevent this, you should apply as soon as possible.
• 181 days or more: Submit your reemployment within 90 days after you complete your military service.

If you are recovering from a service-connected injury or illness, these deadlines can be extended for up to two years while recovering or receiving medical treatment.

What position should I receive when I return to work?

Under the "escalator" principle, you should be in a position you would have attained had you stayed employed while in service. This applies to seniority status and pay. What this means is that, the employer must determine what position you should have attained if continuously employed during military service.

Your employer should also make reasonable efforts to qualify you for that position. For instance, the employer should provide you with training or retraining. If you cannot qualify for the "escalator" position despite the training, then they should employ you in another position closest to the escalator position. If not, then they should hire you for the position you had before military service.

What is USERRA’s five-year time limit?

USERRA limits and absence of five total years of military service with one employer. This means you can only claim your reemployment rights if your cumulative absence due to military service does not exceed five years. An exception applies in some instances. Your employer should not include the following circumstances in counting the five-year limit:

• National emergencies
• Reserve drills
• Regularly scheduled military training

For more details, check the U.S. Department of Labor's (DOL) USERRA Advisor.

What health and pension benefits are you entitled to during and after military service?

USERRA addresses both pension and health insurance plan coverage:

Health insurance

You may opt to continue the employer-sponsored healthcare for up to two years if you have served in the military for 30 days or more. However, they may ask you to pay 102% of the premium payment.

If your period of military service is for more than 30 days, you may opt to continue the employer-sponsored healthcare for up to 24 months. However, employers may ask you to pay up to 102% of the premium. If the period of time you served in the military for less than 31 days, your employer should provide you healthcare service as if you stayed employed.

Pension benefits

For participation in pension benefits, USERRA considers military duty as continued service with the employer. The pension protections addressed by USERRA apply to defined contributions, health plans, and pension plans for government employees under state or federal laws.

Can my employer deny me employment benefits because of my military service?

No. USERRA protections prohibit employers from denying military servicemembers employment benefits because of their performance of service, application for service, or obligation for service.

While employees are on military leave, employers should consider them on furlough or a leave of absence.

What if I become disabled during my military service?

If you become disabled or aggravate a disability while on military duty, your employer should make reasonable accommodations for it.

If you cannot take on the "escalator" position because of your disability, the employer should reemploy you in an equivalent position. The position should have an equal status, seniority, and pay consistent with the circumstances.

What action can I take if my employer refuses to follow USERRA?

The U.S. Department of Labor (DOL) oversees USERRA. If your employer refuses or fails to uphold your USERRA rights, you can:

• File a complaint with the Department of Labor's Veterans' Employment and Training Services (VETS)
• File a private lawsuit against your employer
• Request that your case be referred to the Department of Justice for potential litigation

Additional Resources for Veterans Seeking Employment

After returning from military duties, many veterans look for new career opportunities. Some require additional employment support. The DOL provides resources to assist veterans transitioning from military to civilian employment.

The Veterans' Employment and Training Service (VETS) helps veterans and their spouses by equipping them for civilian employment. VETS offers training and resources through its website.

An agency of the Department of Defense called the National Committee for Employer Support of the Guard and Reserve (ESGR) also provides several services. They offer free USERRA consultation, education, and informal mediation. ESGR can answer questions related to USERRA. They can also respond to employment disputes of military servicemembers.

Seek Legal Help With Your Reemployment Rights

If you are a military servicemember facing difficulties in your reemployment process. Or, if you need clarification on your military leave, consulting an employment attorney is helpful. An attorney experienced in handling military issues may give you legal advice tailored to your case. They can help you understand your rights and assist with any problems with your employer. Do not hesitate to seek legal help to protect your career and ensure your federal rights are protected.