Serving in the military can be a difficult task. It can be more difficult if you are a member of the Guard or Reserves who has to balance family, military duties, and their civilian day job. The possibility of being called to active duty with only a moment’s notice can create stress, both at home, and at the work place. The last thing a service member needs to worry about is losing his or her job due to military obligations.
If a Guard member or Reservist is activated for a long period of time, they may find themselves at a disadvantage for promotions, career advancement, or even keeping their job. At least, in theory.
Thankfully, the government recognizes the sacrifices of our military members. Since 1940, there has been a law on the books that gives uniformed service members the right to reemployment after completing required military training or service. The law, originally known as the Veterans’ Reemployment Rights (VRR), was expanded in 1994 by President Clinton to become known as Uniformed Services Employment and Reemployment Rights Act, or USERRA. (the full version of the law can be found in Title 38, United States Code, at chapter 43, Sections 4301 through 4333).
What Guard Members and Reservists Need to Know About USERRA
USERRA gives members of the uniformed services reemployment protection and other benefits when military duty forces them to miss time from their civilian jobs. Provided that members of the Reserve Corps meet the eligibility criteria,
USERRA mandates that returning service members must be promptly re-employed in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. (source).
USERRA applies whether the activation is voluntary or involuntary, in peace time or in war time.
What does this mean? If you are called to active duty and you are eligible for protection under USERRA, your job is protected when you return from military service. At the minimum, your company must offer you another comparable job within the organization.
Of course, it isn’t always that simple. Let’s take a look at eligibility, requirements, employee and employer rights, and some other situations so you can get an idea if USERRA applies to you or not, and what options you may have available to you.
USERRA Eligibility
Service members: In general, if the employee is absent from a position of civilian employment by reason of service in the uniformed services, he or she is eligible for reemployment under USERRA by meeting the following criteria:
- The employer had advance notice of the employee’s military service
- The employee returns to work in accordance with USERRA guidelines
- The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions
Uniformed services includes members serving on active duty, in the Guard or Reserves, or members serving in the Commissioned Corps of the Public Health Service.
Qualified service includes:
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty
- Absence from work for an examination to determine a person’s fitness for any of the above types of duty
- Funeral honors duty performed by National Guard or Reserve members
- Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service (added by Pub. L. 107-188, June 2002). See Title 42, U.S. Code, Section 300hh-11(d).
Duration of service limits: With some exceptions, USERRA limits the cumulative length of absence to five years. Some exceptions include initial service obligations exceeding five years, involuntary extension of service requirements, times of war, and times of domestic or national emergencies.
Disqualifying service: Separation from the service with a dishonorable or bad conduct discharge, or under other than honorable conditions. Other situations include the dismissal of a commissioned officer through a court martial or certain other situations, or when a service member is dropped from the rolls due to being AWOL or being incarcerated in a civilian jail.
USERRA Requirements for Employers
Employers: The law applies to virtually all public and private employers in the United States to include federal, state, and local governments, regardless of size. Providing that the service member meets all criteria, USERRA requires employers to provide the following:
- Allow employees to participate in military service
- Prompt reinstatement back into job following military service
- Accumulation of seniority, including pension plan benefits
- Reinstatement of health insurance
- Training or retraining of job skills, including accommodations for disabled
- Protection against discrimination
Rights Under USERRA
As stated, service members are entitled to their old job, or a comparable position, upon return from their military obligation. This includes accumulation of seniority and reinstatement of all benefits. Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position.
Escalator Position Clause: There is an “Escalator Position” clause, which states the service member must be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. This works both ways. It could mean the service member should be promoted upon return if it was reasonably certain they would have otherwise been promoted. However, it could also mean that the service member moves to a lateral position or is demoted if there were organizational reorganizations or layoffs during their time on military duty. It could also mean the person is laid off if they would have otherwise been laid off while they were serving in the uniformed services (for example, if there was a reduction in force, or mass layoff in the company).
Continuation of health care benefits: Employers are required to continue offering employees health care benefits while the military member is performing military duties (for up to 24 months). If the member is activated for longer than 30 days, the employer may require the service member to pay 102% of the premium in order to continue receiving health care benefits (this is similar to COBRA heath care laws).
Protection from discrimination: This applies at all times, and not just when being called to active duty. Employers are forbidden from discriminating against people based on past, current, or future military obligations. This extends to hiring, promotions, benefits, and terminations. In other words, a company cannot deny you a job or promotion because you are currently serving, or have served in the military.
Reemployment Timetable Under USERRA
To be eligible for protection under USERRA, the service member must report back to work or apply for reemployment within the following guidelines:
- 1-30 days of military service – Report next scheduled work day*
- 31-180 days of military service – Apply within 14 days following completion of service.
- 181+ days of military service – Apply within 90 days following completion of service.
* After 8 hours rest plus normal travel time from military training site to place of civilian employment.
Communication with your employer is essential. It’s important to keep the communication lines open during your activation so you can express your expectations and intentions to your employer. If you want to go back to your job, do your best to inform them when your activation period will end and when you will return to work.
Notice the terms state “report back to work or apply for reemployment.” In some cases, your employer may need to work with you to find a new (comparable) position within the company if your previous position was filled while you were activated on military orders. This is fairly common for people who were activated for several months or longer, as companies need to fill the civilian positions left vacant. Communicating with your employer can help you get the process started more quickly.
USERRA and Disabilities
Injuries and disabilities are a sad fact of the military profession. USERRA gives disabled veterans additional protections. Employers are required to make a reasonable effort to accommodate disabled veterans, and service members recovering from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
Note the language states, “reasonable effort to accommodate disabled veterans.” It’s entirely possible in some situations that some reemployment may not work out. An example would be someone who works a physically demanding job and can no longer perform the tasks. The employer should try to find something comparable within the company, and offer training to help the service member (if available). But employers are not required to create a job out to simply keep someone on the payroll.
USERRA Enforcement
USERRA is a federal law, and can be enforced several ways. The Department of Labor has an organization called Veterans’ Employment and Training Service (VETS), which investigates complaints and attempts to resolve them by working as a mediator between the employer and the employee. Employees also have the right to contact their state Attorney General, or hire a private lawyer and file a lawsuit with their jurisdiction.
Additional USERRA Resources
This is only a top level overview of USERRA. This is a complicated law and it wouldn’t be possible to cover every possible scenario in an article on this site. The best course of action you can do is familiarize yourself with the laws, and keep the lines of communication open with your employer to ensure they are aware of your service commitments and your desire to return to work with their company.
Here are some additional resources to help you gain a better understanding of your rights under USERRA:
- USERRA on the books – (Title 38, United States Code, chapter 43, Sections 4301 through 4333)
- USERRA Fact Sheet (Department of Labor).
- USERRA Resource Page (Department of Labor).
- USERRA Pocket Guide (Department of Labor)
- USERRA FAQ’s (Military.com).
Bottom line: USERRA offers many employment protections for service members, but there are also some limitations. Familiarize yourself with the scope of the law, and inform your employer of your rights if you feel they are being abused.
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