The Uniformed Services Employment and Reemployment Rights Act (USERRA) was passed in 1994 to protect the employment of military personnel during and after their military service. USERRA protections apply to active-duty military personnel, reservists, and members of the National Guard. The Act’s stated purpose is to encourage continuing service by non-career military personnel, to prohibit discrimination connected with their service, and to ensure prompt re-employment upon the member’s return from deployment or service.
Many businesses may be unaware that they have employees with ongoing military obligations until an employee is called up for deployment or gives notice that they will be away for mandatory training or deployment. At that point, the employer may be concerned about the employee’s absence and the employer’s obligations.
The following are answers to some commonly asked questions about USERRA.
What rights are provided by USERRA?
Essentially, the employer is required to provide unpaid leave for the departing employee for the duration of the military assignment, up to five years, and to restore the member to employment on return. Note that the annual two-week military training and drills for National Guard members are covered under USERRA but are in addition to the five-year USERRA eligibility. The employer may not impose any adverse employment action against the employee, i.e., cannot demote or take any disciplinary action related to the member’s service or deployment and must re-employ the military member in the same or equivalent position on return from deployment or service.
Can the employer ask for advance notice?
In most cases, the employee is required to provide advance notice, which may be verbal or written. Notice may come from the military member or may be from the branch of military where the employee is serving. Notice, verbal or written, from either the member or the military branch is acceptable. Some employers have found it helpful to provide a USERRA leave form for employees to complete, when circumstances allow. However, in some cases, call-ups are based on military necessity, and the member may not be able to provide much advance notice to the employer. When notice is impossible or unreasonable, the advance notice requirement is excused.
What happens when a military member returns from duty?
The employee is expected to return to work and to be restored to the same or equivalent position with no loss of seniority, no loss of benefits, and no adverse action due to the military absence. The time frame for returning to work depends on the length of the absence in performance of military duties. For absences of less than 30 days, the employee is expected to return to work on the next scheduled shift, allowing for normal travel time and a rest period of at least eight hours. For longer absences, the employee may be required to submit an application for reemployment after completion of military service. The application is for the purpose of placing the veteran back into equivalent employment, not for deciding whether to employ. Reemployment is not discretionary. The time frame for submitting the application is between 14 days and up to 90 days depending on the length of absence.
What if the employer has filled the member’s position during the service member’s absence?
Returning service members must be “promptly reemployed.” According to the Veterans' Employment and Training Service, “Prompt reemployment” means as soon as is practicable under 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, reinstatement following five years on active duty might require reassigning or giving notice to an incumbent employee who has occupied the service member’s position.
What if a member is disabled or injured while on military service?
An employee unable to return to immediate employment due to injury or disability resulting from military service has a two-year extension to reapply for reemployment. Additional contingencies may extend this period. A fit-for-duty examination may be required in some situations.
For more information:
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The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers USERRA. Learn more here.
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Most major cities have a local USERRA office to provide assistance to veterans and their employers. Learn more by calling 1-800-336-4590 or visiting this web page.
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Employers Council offers members this whitepaper on USERRA. Contact us at info@employerscouncil.org if you have any questions.
Ivy N. Voss is an attorney for Employers Council.