Uniformed Services Employment and Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services."
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
Who does USERRA cover?
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.
Actions Prohibited by USERRA
USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.
Protection of a Service member’s Employment
The pre-service employer must reemploy service members returning from a period of service in the uniformed services if those servicemembers meet five criteria:
- The person must have been absent from a civilian job on account of service in the uniformed services
- The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
- The cumulative period of military service with that employer must not have exceeded five years;
- The person must not have been released from service under dishonorable or other punitive conditions; and
- The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training. USERRA also allows an employee to complete an initial period of active duty that exceeds five years.
Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.
Notice Required and Reemployment
When possible, employees must provide the Company with 30 days notice of the employee’s intent to use this leave. The Company may ask for a copy of the employee’s service orders and military schedule as soon as possible after being made aware of the need for this leave.
The employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service, including salary increases, accrual of paid time off, seniority and other benefit increases. Upon return from leave due to uniformed service, the Company will endeavor to return the employee to at least the same or equivalent position he or she held when the leave began, including equivalent benefits, pay and conditions of employments. The Company will make reasonable efforts to enable returning employees to refresh or upgrade their skills to help them qualify for reemployment at their same or equivalent position.
The Company may refuse to reemploy any service member who is not honorably discharged. Employees wishing to return after their military service must meet the following requirements:
- For a leave of 31 days or less, report back to work on the next workday or shift they would normally be scheduled to work but for the military leave.
- For a leave between 31 days and 180 days, provide the Company with actual notice of their intent to return within 14 days of discharge.
- For a leave longer than 180 days, provide the Company with actual notice of their intent to return within 90 days after discharge.