USERRA: Re-Employment Rights for Service Members

Updated: December 24, 2022
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    There is a set of protections for military members known as USERRA, which stands for the Uniformed Services Employment and Reemployment Rights Act. USERRA gives federal job protection rights to service members who leave the civilian workforce to serve in the military and is applicable to most employers.

    Military service is definitely not a one-size-fits-all experience. You may join the military as an active duty member, or join the National Guard or Reserve. Some enter as enlisted members, some as officers. There are those who do a single tour of duty, and those who make long careers in uniform.

    What all military members have in common is that one day, they will face re-entry into the civilian world and job market. But what rights do military members have when transitioning from their military career to a civilian one?

    USERRA is designed to be vigorously enforced where applicable and is intended to prevent employers from discriminating against people because of their military service. The act applies to all who serve, but the protections are especially important for members of the Guard and Reserve whether deployed, activated for training, or performing required weekend duty among other scenarios.

    A Brief History Of USERRA

    The Uniformed Services Employment and Reemployment Rights Act of 1994, also known as USERRA, became law in 1994. According to the Department of Labor, USERRA is a federal law that “prohibits discrimination in employment based on an individual’s prior service in the uniformed services; current service in the uniformed services; or intent to join the uniformed services.”

    Important Milestones Leading To Passage Of USERRA

    USERRA did not spring into existence overnight. Decades of legislation designed to protect service members came before USERRA, with varying degrees of effectiveness. As early as the Civil War, lawmakers took steps to safeguard military members from discrimination; the Civil War-era protections were designed to prevent soldiers from being penalized because they could not be present for legal proceedings due to military service.

    Later, Congress passed the World War One-era Soldiers And Sailors Civil Relief Act which provided similar protections and is still in existence today, albeit in modified form to accommodate modern needs.

    The Selective Service Training And Service Act of 1940 included protections for World War Two-era troops, but those serving in the Guard and Reserve would not see protections extending to them until Reservists received their first legal protections via an amendment to the Military Selective Service Act in 1968.

    Pre-USERRA Reemployment Protections

    The amendment mentioned above, commonly called VRRA (the Veterans’ Reemployment Rights Act) offered Reserve members legal recourse against discrimination over military service. A few years later, the Veterans’ Readjustment Assistance Act of 1974 included similar measures provided for in VRRA but placed emphasis on those transitioning from active military service to serve in reserve components.

    The Passage Of USERRA

    USERRA was signed into law in 1994 and adds clarity and support to VRRA, protecting civilian job rights and benefits for those who have retired or separated from military service, those who still serve as members of military reserve components, and those called into service by the President of the United States during national emergencies.

    Additionally, those employed by the federal government have protections and redress rights and are eligible to obtain help from the Department of Labor for USERRA claims of non-compliance.

    USERRA laws protect service members working for private employers, the Federal Government, plus State and local agencies. United States employers operating overseas are bound by USERRA; so are “foreign employers operating within the United States” according to the Department of Labor.



    Military Members And Veterans Rights Under USERRA

    • USERRA rules make it illegal to discriminate against members of the United States Armed Forces whether active duty, Reserve, National Guard, Coast Guard, etc.
    • USERRA requires prompt reemployment for military employees.
    • USERRA reemployment rules state that the employer is not just required to hire the military member after returning from duty, but re-employment at the position the veteran would have held if not mobilized for duty. You may hear this referred to as “the escalator position rule.”
    •  USERRA requires credit for mobilized time including provisions for job seniority, retirement credit, plus regular pay and retirement contributions.
    • USERRA gives service members protections from “discharge after return from military service”. Such protection has specific start and ending dates, which are spelled out in the rules of the act.
    • USERRA holds both direct supervisors and the company as a whole responsible for compliance.
    • USERRA prohibits discrimination against service members and veterans based on their past, present, or future status as a member of the United States military.
    • Health insurance coverage and pensions are protected under certain circumstances; those called up for military duty longer than 30 days may choose to “continue employer sponsored health care for up to 24 months” with the caveat that the service member may be required to pay as much as “102 percent of the full premium” according to the Department of Labor.
    • For military service shorter than 31 days USERRA requires health care coverage provided “as if the service member had remained employed”.


    Military Members And Veterans Returning To Work Under USERRA

    USERRA requirements and limits for returning to work after military duty will be contingent on the duration of military service as described by the U.S. Department Of Labor.

    Military Service Up To 30 days – The veteran is required to report to the employer “by the beginning of the first regularly scheduled work period on the day following completion of service, after allowing for safe travel home and eight hours of rest”.

    Fitness Exams – The USERRA requirement for military members who need time from work to take a military fitness exam is identical to those who spent up to 30 days away to serve in uniform (see above).

    Military Service Between 31 And 180 Days – The military member is required under USERRA to submit a reemployment application no later than 14 days after military duty ends.

    Military Service 181 Days Or Longer – The returning service member must submit a reemployment application in 90 days or less after military duty.

    When There Is An Injury Or Illness – The above deadlines are extended as long as two years from the date of military service completion in cases where there was an injury or illness; the Department of Labor states that the two year period may be extended further “to accommodate a circumstance beyond an individual’s control” that would make meeting the two year deadline unreasonable.



    Written by Team