Created March 28, 2013

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) was enacted to provide a number of workplace protections for members of the uniformed services. Like other laws prohibiting discrimination in employment practices, USERRA also provides protections for servicemembers by prohibiting discrimination on the basis of an employee’s military affiliations, as well as prohibiting retaliation against employees that have invoked their rights under USERRA.

But USERRA also requires employers to reinstate any employee who has been absent from their job due to military service obligations. Moreover, the employer must re-employee the returning servicemember with the employment position that the employee would have obtained had their employment not been interrupted by military service, as well as provide the employee with any other seniority rights or privileges that would have accrued. USERRA also has requirements regarding employee health insurance coverage that are similar, although not identical, to COBRA. For any leave of absence for military service that is 31 days or longer, USERRA  requires employers to allow the employee to elect and pay for continuation of coverage for both the employee and the employee’s dependents under any health care plan provided by the employer. An employee electing to receive any such continuation of coverage cannot be required to pay more than up to 102% of the full premium associated with coverage for other employees.

Overlooked by many employers is the fact that, under USERRA, an employer’s change of circumstances during the employee’s period of deployment will not, in most cases, provide a justification for failing to comply with USERRA’s reinstatement requirements. Employers may not refuse to reinstate an employee upon their return from military service due to the timing of the employee’s departure or return, the frequency of their deployments, or the length of their absence from their job, provided that the employee’s departure is not longer than five years – regardless of the inconvenience this may cause for employers.

Since USERRA applies to all employers, public and private, regardless of size or industry, one of the most effective ways for employers to protect the rights of their reservist employees under USERRA, is to spell out all of the reservists’ and employer’s obligations within the company’s employee handbook.

As a final word of caution, employers should note that there is no statute of limitations on USERRA violations. This means that if an employer violates USERRA, the affected employee is not required to file his or her cause of action within a specific time period, but can instead delay bringing the claim for as long as the employee decides.

Practical Counsel: USERRA is broader than many other employment laws, and complying with its requirements can be particularly burdensome for employers who have experienced changes in their business structure during their employee’s absence. Whether you are an employer or a returning servicemember, contact General Counsel, PC in order to fully understand what your options are under USERRA,