What is USERRA? Workplace Rights for Military Service Members
Chicago Illinois Lawyers for USERRA and Army, Nave, Air Force and Marine Veterans
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), provides reemployment protection and other benefits for veterans and employees who perform military service. Under USERRA, if a military member leaves his civilian job for service in the uniformed services, he is entitled to return to the job, with accrued seniority, provided he meet the law’s eligibility criteria. USERRA applies to voluntary as well as involuntary service, in peacetime as well as wartime, and the law applies to virtually all civilian employers, including the Federal Government, State and local governments, and private employers, regardless of size.
USERRA covers virtually every individual in the country who serves in or has served in the uniformed services and applies to all employers in the public and private sectors, including Federal employers. The law seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.
Answers to frequently asked questions about USERRA are set forth below:
1. What is the law governing a service member’s right to reemployment after completion of military training or service?
Yes. On October 13, 1994, President Clinton signed the Uniformed Services Employment and Reemployment Rights Act, which is contained in Title 38, United States Code, at chapter 43. Sections 4301 through 4333. The law became effective on December 12, 1994.
2. Who is eligible for reemployment rights under USERRA following military service?
A person must meet five conditions, or “eligibility criteria” to be eligible for reemployment under USERRA. The person:
- must hold or have applied for a civilian job.
- must have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when precluded by military necessity.
- must not have exceeded the 5-year cumulative limit on periods of service.
- must have been released from service under conditions other than dishonorable.
- must report back to the civilian job in a timely manner or submit a timely application for reemployment. Section 4312.
3. What right to reemployment exists after voluntary military service? What about State call-ups?
USERRA applies to voluntary and involuntary military service, in peacetime as well as wartime. USERRA does not, however, apply to state call-ups of the National Guard for disaster relief, riots, etc. Any protection for such duty must be provided by State Law. Section 4303.
4. When must notice of military service be give to the civilian employer? How must notice be given?
The person who is performing the service (or an official representative of the uniformed service) must give advance written or verbal notice to the employer. The notice requirement applies to all categories of training or service. Notice is not required if precluded by military necessity or, if the giving of such notice is otherwise impossible or unreasonable.
A determination of military necessity is made pursuant Department of Defense regulations. Situations where notice is not required are rare. The law does not specify how much advance notice is required, but as much notice as reasonably possible is preferred. Section 4312.
5. Must the employee provide his or her employer proof that military duty actually performed?
USERRA states that for periods of military service of 31 days or more, the returning employee must, upon the employer’s request, provide documentation that establishes length and nature of the service and the timeliness of the application for reemployment. Reemployment may not be delayed, however, if such documentation does not exist or is not readily available. In general, the following documents have been determined by the Secretary of Labor to satisfy proof of eligibility for reemployment: discharge papers, leave and earnings statements, school completion certificate, endorsed orders, or a letter from a proper military authority. While USERRA does not address documentation of shorter periods of military service, if doubt exists, an employer could contact the employee’s military command with questions about a specific period of service. Section 4312.
6. How is the 5-year limit calculated?
When a person begins employment with an employer, he or she receives a new 5-year entitlement to military leave. Service performed before USERRA’s effective date is explained below, in response to question #8.
USERRA’s cumulative 5-year service limit does not include certain kinds of military training or service. Exceptions to the 5-year limit can be grouped into three broad categories:
- Persons who through no fault of their own are unable to obtain release from service or who serve in excess of five years to fulfill an initial period of obligated service (for example, lengthy service periods imposed on pilots or others who undergo extensive initial training in certain technical military specialties).
- Required drills and annual training and other training duty certified by the military to be necessary for professional development or skill training/retraining.
- Service performed during time of war or national emergency or for other critical missions/contingencies/military requirements. Involuntary service of this type is exempt from the 5-year limit. Voluntary service in support of the mission/contingency/military requirement is also exempt. Section 4312.
7. Can an employee be required to use earned vacation while performing military service?
No. Employees may not be forced to use earned vacation. Employees are entitled to earned vacation or leave in addition to time off to perform military service. Section 4316.
8. What about duty time served prior to the effective date of USERRA?
Generally, military service performed before December 12, 1994 counts toward the USERRA 5-year service.
9. How much time off is an employee entitled to prior to reporting for military service?
An exact amount of time is not specified in USERRA, an employee, at a minimum, needs to be given sufficient time to travel to the place where the military duty is to be performed.
10. After the period of service, when must an employee report back to work or apply for reinstatement?
For periods of service of up to 30 consecutive days, the person must report back to work for the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and safe transportation home, plus an 8-hour period for rest. If reporting back within this deadline is “impossible or unreasonable” through no fault of the employee, he or she must report back as soon as possible after the expiration of the 8-hour period.
After a period of service of 31-180 days, the person must submit a written or verbal application for reemployment with the employer not later than 14 days after the completion of the period of service. If submitting the application within 14 days is impossible or unreasonable through no fault of the employee, he or she must submit the application as soon as possible thereafter.
After a period of service of 181 days or more, the person must submit an application for reemployment not later than 90 days after completion of the period of service. These deadlines to report to work or apply for reemployment can be extended up to two years to accommodate a period during which a person was hospitalized for or convalescing from an injury or illness that occurred or was aggravated during a period of military service. Section 4312.
11. Do employee have the right to employment benefits during military service?
Yes. USERRA gives an employee the right to elect continued health insurance coverage, for himself or herself and his or her dependents, during periods of military service. For periods of up to 30 days of training or service, the employer can require the person to pay only the normal employee share, if any, of the cost of such coverage. For tours of duty longer than 30 days, the employer is permitted to charge the person up to 102 percent of the entire premium. If the employee elects coverage, the right to that coverage ends on the day after the deadline for him or her to apply for reemployment or 24 months after the absence from the civilian job began, whichever comes first.
USERRA gives an employee and previously covered dependents the right to immediate reinstatement of civilian health insurance coverage upon return to the civilian job. The health plan cannot impose a waiting period and cannot exclude the returning employee based on preexisting conditions (other than for those conditions determined by the Federal government to be service-connected). This right is not contingent on an election to continue coverage during the period of service. Section 4317.
To the extent that an employer offers other non-seniority benefits (e.g., holiday pay or life insurance coverage) to employees on furlough or a leave of absence, the employer is required to provide those same benefits to an employee during a period of service in the uniformed services. If the employer’s treatment of persons on leaves of absence varies according to the kind of leave (e.g., jury duty, educational, etc.), the comparison should be made with the employer’s most generous form of leave. An employee may waive his or her rights to these other non-seniority benefits by knowingly stating, in writing, his or her intent not to return to work. However, such statement does not waive any other rights provided by USERRA. Section 4316.
12. What is an employer required to provide to a returning service member upon reemployment?
There are four basic entitlements (if the eligibility criteria in answer #2 are met):
- Prompt reinstatement (generally a matter of days, not weeks, but will depend on the length of absence).
- Accrued seniority, as if continuously employed. This applies to rights and benefits determined by seniority as well. This includes status, rate of pay, pension vesting, and credit for the period for pension benefit computations.
- Training or retraining and other accommodations. This would be particularly applicable in case of a long period of absence or service-connected disability.
- Special protection against discharge, except for cause. The period of this protection is 180 days following periods of service of 31-180 days. For periods of service of 181 days or more, it is one year. Section 4313.
13. Is the employee entitled to have the same job back?
No. USERRA provides that, if the period of service was less than 91 days, the person is entitled to the job he or she would have attained absent the military service, provided the person is, or can become, qualified for that job. If unable to become qualified for a new job after reasonable efforts by the employer, the person is entitled to the job he or she left.
For periods of service of 91 days or more, the employer may reemploy the returning employee as above (i.e., position that would have been attained or position left), or in a position of “like seniority, status and pay” the duties which the person is qualified to perform. Section 4313.
If you have questions concerning the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), please contact a USERRA lawyer at Werman Salas P.C.