Understanding Your Employment / Reemployment Rights as a Uniformed Service Person:

USERRA—Uniformed Services Employment and Reemployment Rights Act.  39 USC §§ 4301 – 4335.

USERRA is the federal law that protects the employment of persons in the "uniformed services." Persons on Military Leave from their private sector jobs are granted certain rights and protections under USERRA. However, USERRA provides additional rights and protection to those that serve our nation.

Who is protected by USERRA?

USERRA protects persons who perform duty, voluntarily or involuntarily, in the "uniformed services." These include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps. It also includes the reserve components of each of these services.  Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA, and certain disaster response work is also covered.

Uniformed service includes active duty, active duty for training, inactive duty training (e.g., drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members. It also includes the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA applies to virtually all United States employers, regardless of the size of the employer.

What conduct is prohibited?

USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve.  An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of past, present, or future service obligations.  Additionally, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

What are employers required to do?

A pre-service employer must reemploy service members returning from a period of service in the uniformed services if those members meet the following five criteria:

1. The person must have been absent from a civilian job on account of service in the uniformed services;
   
2. The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
   
3. The cumulative period of military service with that employer must not have exceeded five years;
   
4. The person must not have been released from service under dishonorable or other punitive conditions; and
   
5. The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
   

   
    

Employers are required to provide persons (that are eligible for protection under USERRA) a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

What happens when a service member returns to his or her civilian job?

Returning service members are to be reemployed in the job that they would have attained had they not been absent for military service. This is referred to as the "escalator" principle. The employer is required to return the employee to the same seniority, status, and pay, as well as other benefits determined by seniority.  USERRA also requires that reasonable efforts, such as training or retraining, be made to enable returning service members to qualify for reemployment.  If the service member cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position.

What about health insurance or other employment benefits?

Health and pension plan coverage for service members is also covered by USERRA.  Individuals performing duty of more than 30 days may elect to continue employer sponsored healthcare for up to 24 months. However, if they do so, they may be required to pay the full premium.  For military service of less than 31 days, healthcare coverage is provided as if the service member had remained employed.

USERRA's pension protections apply to defined benefit plans and defined contribution plans. It also applies to plans provided under federal or state laws governing pension benefits for government employees.  For these plans, they must be treated as if the service member had continuous service with the employer.

Where can a service member file a complaint if there is a violation?

Service members that wish to file a complaint alleging a violation have two alternatives. First, they can file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service.  If the DOL determines that a violation has occurred, it will try to negotiate a resolution.  However, it has no enforcement authority.  Thus, it will turn the matter over to the Office of Special Counsel in the case of the federal government, or the United State Attorney General.  These officials may pursue the matter, or they may inform the service member that he or she may take action against the employer.

The other alternative is for the service member to file a lawsuit in state or federal court. Employees of the federal government must file an appeal with the Merit Systems Protection Board.

What is the remedy for a violation of USERRA?

USERRA provides for compensatory damages, reinstatement, back pay, lost benefits, corrected personnel files, lost promotional opportunities, retroactive seniority, pension adjustments, and restored vacation. If a violation is determined to be willful, the court may double any amount due as liquidated damages.  USERRA does not allow for an award punitive damages.  However, the court may, in its discretion, award attorney fees and legal expenses.