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A Comprehensive Guide To The Uniformed Services Employment And Reemployment Rights Act (USERRA)

September 27, 2023

Where the lines between civilian and military life often blur, it's crucial to have regulations that bridge the gap, ensuring that those who serve our nation in uniform aren't left behind in the civilian workforce. The Uniformed Services Employment and Reemployment Rights Act, or USERRA, is a testament to this commitment. Established to protect the rights and privileges of our military personnel, USERRA acts as a beacon, guiding both employers and service members through the complexities of employment and reemployment after military service

We will learn about employer obligations and how service members can transition back to civilian life. This guide will examine this federal law and the layers of USERRA, shedding light on its purpose, provisions, and the profound impact it has on the lives of countless Americans.

Program Contact1-866-4-USA-DOL
Additional InfoVeterans' Employment and Training Service (VETS)
Managing AgencyDepartment of Labor

Overview Of USERRA

The Uniformed Services Employment and Reemployment Rights Act, commonly known as USERRA, is a federal law that was established to protect the rights of military service members and veterans in their civilian employment. This act ensures that individuals who serve or have served in the Armed Forces, Reserves, National Guard, or other "uniformed services" are not disadvantaged in their civilian careers due to their service. It also ensures that they are reemployed in their civilian jobs upon return from duty and are not discriminated against based on their military obligations.

Purpose And Goals Of USERRA

The primary purpose of USERRA is to ensure that individuals who enlist or are called to active duty can return to their civilian employment upon completion of their service. The act aims to encourage non-career uniformed service so that America can enjoy the protection of those services voluntarily and without detriment to the civilian careers of the participants.

Here are some key points about USERRA:

  • Protection Against Discrimination: USERRA prohibits employers from discriminating against employees or potential employees based on their military service. This includes decisions related to hiring, promotions, and any other benefits of employment.

  • Reemployment Rights: Upon returning from military service, individuals have the right to be reemployed in their previous job or a comparable job with the same status, pay, and seniority. This means that the individual should be treated as if they had never left for military service.

  • Protection Against Retaliation: Employers are prohibited from retaliating against an individual for asserting their USERRA rights, even if the claim is not ultimately proven.

  • Health And Pension Plan Coverage: USERRA provides protection for individuals to elect to continue their existing employer-based health plan coverage for them and their dependents for up to 24 months while serving in the military. Additionally, individuals are entitled to reinstatement in their employer's pension plan when they return from military service.

  • Prompt Return To Work: After completing their service, individuals must be promptly re-employed in the same position or a position they would have attained had they not been absent for military service.

Real-Life Applications Of USERRA

To better understand the impact and significance of USERRA, let's look at a couple of real-life scenarios:

  • Scott Harrison's Case: Army Reserve Soldier Scott Harrison, who achieved the rank of colonel in the Army and had significant experience in global military operations, faced challenges with his employer in Florida. Despite his dedication and service, the company failed to provide him with due promotions and raises. With the help of USERRA, Harrison filed a claim, leading to a resolution where he was promoted and compensated with $96,000 in lost wages.

  • Brian Benvie's Experience: Brian Benvie, a law enforcement officer and an Army reservist, missed promotional exams due to his active military duty. When he took the exams later, he found others were promoted ahead of him, even with his higher scores. After filing complaints under USERRA, he received assistance from the Veterans' Employment and Training Service (VETS) and eventually reached a settlement that included more than $32,000 in back pay.

These cases highlight the importance of USERRA in ensuring that service members are treated fairly and without prejudice in their civilian employment.

Military Service And Reemployment Rights

Navigating the world of civilian employment while serving in the military can be challenging. This section sheds light on the rights and protections that USERRA offers to service members, ensuring they can seamlessly transition between their military duties and civilian careers.

Definition Of Uniformed Services

The term "uniformed services" refers to various branches and components of the U.S. military and other designated services. Specifically, the "uniformed services" encompasses:

  • The Armed Forces, which include the Army, Navy, Air Force, Marine Corps, and Coast Guard.

  • The Army National Guard and the Air National Guard when they are engaged in active duty for training, inactive duty training, or full-time National Guard duty.

  • The commissioned corps of the Public Health Service.

  • Any other category of persons that the President may designate during times of war or national emergencies.

Additionally, for the purposes of USERRA coverage, service as an intermittent disaster response appointee of the National Disaster Medical System (NDMS) when federally activated or attending authorized training in support of their Federal mission is deemed as “service in the uniformed services.” However, it's essential to note that such an appointee is not a member of the "uniformed services" as strictly defined by USERRA.

Initial Employment

USERRA plays a pivotal role in safeguarding individuals against discrimination during initial hiring decisions. According to the Act, the definition of an employer includes any person, institution, organization, or other entity that has denied initial employment to an individual based on USERRA's anti-discrimination provisions. This means that an employer doesn't necessarily have to employ an individual to be considered their "employer" under the Act. If the employer denies initial employment due to the individual's:

  • Membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.

  • Action taken to enforce a protection provided by USERRA.

  • Testimony or statement in connection with a USERRA proceeding.

  • Assistance or participation in a USERRA investigation.

  • Exercise of any other right provided by the Act.

  • For instance, if an individual faces denial of initial employment due to obligations as a member of the National Guard or Reserves, the company or entity denying the employment becomes an employer under USERRA. Similarly, if an entity withdraws a job offer because the individual needs to fulfill an obligation in the uniformed services, that entity is considered an employer under USERRA.

In essence, USERRA ensures that individuals are not denied employment opportunities based on their current or past military obligations or any actions related to asserting their rights under the Act.

Retention In Employment

  • Protection Under USERRA: The Uniformed Services Employment and Reemployment Rights Act (USERRA) ensures that individuals who serve or have served in the Armed Forces, Reserve, National Guard, or other uniformed services are not disadvantaged in their civilian careers because of their service. They should be promptly reemployed in their civilian jobs upon their return from duty.

  • Protection Against Discrimination: Employers cannot deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on an individual's military service. This includes any adverse employment action against an individual because they have taken action under USERRA or participated in a USERRA investigation.

Leaves Of Absence For Military Duty

  • Advance Notice Requirement: Employees, or an appropriate officer of the uniformed service, must notify their employer of their intention to leave for military service. While USERRA doesn't specify how far in advance this notice must be given, the Defense Department recommends at least 30 days prior notice when feasible.

  • Duration of Leave: USERRA allows for a cumulative period of up to five years for service in the uniformed services. However, there are exceptions, such as involuntary active duty during wartime or national emergencies.

  • Health Plan Coverage: Employees performing military service can continue their health plan coverage. For service under 31 days, they pay only the regular employee share. For service over 31 days, they may pay up to 102% of the full premium.

Return From Duty

  • Reemployment Rights: Upon return from duty, employees are entitled to be reemployed in their previous position or a comparable one. This is based on the "escalator principle," which means the position they would have attained had they not been absent for military service.

  • Timelines For Return: Depending on the duration of service, employees have specific timelines to report back or apply for reemployment. For 1-30 days of service, they should report on the next scheduled workday. For 31-180 days, they should apply within 14 days of service completion. For service over 181 days, they should apply within 90 days of completion.

  • Pension Benefits: USERRA ensures that there's no break in service concerning pension plans. This applies to participation, vesting, and accrual of benefits.

National Guard And Reserve Members

  • Coverage Under USERRA: USERRA's definition of "service in the uniformed services" covers all categories of military training and service. This is often understood as applying to National Guard and reserve military personnel. It also applies to those serving in the active components of the armed forces.

  • Protection Against Discrimination: Just like other service members, National Guard and Reserve members cannot be discriminated against based on their service. This includes initial employment decisions, promotions, and other benefits.

  • Reemployment After Service: National Guard and Reserve members have the same reemployment rights as other service members. They should be reemployed in their previous position, or a position they would have attained had they not been absent for service.

Frequently Asked Questions

To help you better understand the Uniformed Services Employment and Reemployment Rights Act (USERRA), we've answered some of the most frequently asked questions.

What is the main purpose of USERRA?

USERRA aims to ensure that individuals who serve or have served in the Armed Forces, Reserve, National Guard, or other uniformed services are not disadvantaged in their civilian careers because of their service and can be promptly reemployed upon their return from duty.

Do employers have to reemploy service members after their military service?

Yes, as long as the service member meets the criteria set by USERRA, employers are obligated to promptly reemploy them in their previous position or a position they would have attained had they not been absent for service.

How long can a service member be away from their civilian job under USERRA?

USERRA allows for a cumulative period of up to five years of service in the uniformed services. However, there are exceptions for involuntary active duty during wartime or national emergencies.

Are National Guard and Reserve members also protected under USERRA?

Yes, USERRA's protections extend to members of the National Guard and Reserve, ensuring they have the same employment and reemployment rights as other service members.

What if an employer discriminates against an employee because of their military service?

USERRA prohibits employers from discriminating against individuals based on their military service. This includes decisions related to hiring, promotions, benefits, and reemployment.

How does USERRA handle health plan coverage during military service?

Employees can continue their health plan coverage during their military service. The cost they bear depends on the duration of their service. For service under 31 days, they pay only the regular employee share. For service over 31 days, they may pay up to 102% of the full premium.

Understanding The Uniformed Services Employment And Reemployment Rights Act (USERRA)

The Uniformed Services Employment and Reemployment Rights Act (USERRA) plays a pivotal role in ensuring that the brave men and women who serve our country do not face disadvantages in their civilian careers. By understanding the rights and protections offered by USERRA, both employers and service members can foster a workplace environment that respects and honors the sacrifices made by our military personnel. As we navigate the complexities of employment in today's world, it's crucial to remain informed and uphold the principles of fairness and equality for all.

Discover more opportunities for American veterans by reading our guide on Jobs for Veterans State Grants Program (JVSG). Visit American Veteran to find comprehensive online resources dedicated to American Veterans.

Michael Blair contributes his expertise to help veterans access government benefits and resources. Through his informative articles and guides, he plays a vital role in empowering veterans and improving their quality of life.
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