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USERRA FAQ for Employers

Employee and Employer Coverage

USERRA applies to persons who perform duty, voluntarily or involuntarily, in theuniformed 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.Uniformed servicemeans 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. USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

Basic Provisions / Requirements

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 any person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

Periods of Absence / Leave Rights

USERRA provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence. The employer may allow, but must not require, the servicemember to use accrued vacation, annual leave or similar types of leave during their absence for military obligation. Further, the right to take leave under FMLA is protected under the USERRA and time spent in the military is included in calculating a reemployed servicemember’s eligibility to take FMLA leave.

In general, USERRA does not require the employer to pay the servicemember a wage during a military leave of absence. The USERRA does permit employers to provide the absent servicemember with benefits more generous that those mandated by the statute; for example, many employers provide servicemembers differential pay during their periods of military duty.

Health Benefits

USERRA protects a servicemember’s civilian health benefits. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. Upon reemployment no waiting period or exclusion period may be imposed by reason of the individual’s military service.

Pension Plans

USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, credible time, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer. A reemployed servicemember who participates in a contributory plan may, but is not required to, makeup missed contributions or elective deferrals, and to repay benefits withdrawn during military service. The servicemember’s makeup contributions, elective deferrals, or repayment of withdrawn benefits may be paid over a period of time up to three times the period of absence for military service, not to exceed five years.

If only the employer makes contributions to the employee’s covered plan, the employer is required to make its contribution within 90 days following reemployment. If employer contribution is contingent on employee contributions, the employer is required to make contribution only to the extent that the employee makes contributions. In a multiemployer pension plans, an employer that contributes to such plan must notify the plan administrator (in writing) within 30 days of servicemember’s reemployment.

Reemployment Position

USERRA requires an employer topromptly reemploythe returning servicemember to the job that the servicemember would have attained had they not been absent for military service. The servicemember is entitled to a position of employment with the same seniority, status and pay, as well as other rights and benefits determined by seniority, the "escalator" principle. Promptly reemploymeans, “Absent unusual circumstances, reemployment must occur within two weeks."

USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemember to qualify for reemployment. If the servicemember cannot qualify for the escalator position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position, or if none, then to the pre-service position.

Reemployment Requirements

In most case, the pre-service employer must promptly reemploy a servicemember returning from a period of service in the uniformed services if:

  • The servicemember was absent from civilian employment on account of service in the uniformed services;

  • The servicemember gave advance notice (written or oral) to the employer that he or she was leaving the job for service in the uniformed services,unlesssuch notice was precluded by military necessity or otherwise impossible or unreasonable;

  • The cumulative period of military service with the current employer does not exceeded five years. See exceptions below;

  • The servicemember must not have been released from service under dishonorable or other punitive conditions; and

  • The servicemember must have reported back to the civilian job in a timely manner or have submitted a timely application (written or oral) for reemployment, unless timely reporting back or application was impossible or unreasonable.

Numerous exceptions apply to the five year limit. For example, call-ups during emergencies, reserve drills, annually scheduled active duty for training, an initial period of active duty that exceeds five years, and service performed under any provision of law because of a war or national emergency, i.e. in support of the global war on terrorism.

Time limits for returning to work:

Less than 31 days service: Return by the beginning of the first regularly scheduled work period after the day of duty, plus time required to return home safely and an eight hour rest period.

31 to 180 days: Apply for employment no later than 14 days after completion of service.

181 days or more: Apply for employment no later than 90 days after completion of service.

Service-connected injury or illness

Deadlines are extended for up to two years for persons who are hospitalized or convalescing.

If this is impossible or unreasonable through no fault of the servicemember, then the servicemember must return to work or apply as soon as possible. Furthter, a servicemember who fails to report or apply as specified above, does not forfeit the rights to reemployment provided by USERRA. Rather, the servicemember may be subject to the employer’s established policy pertaining to absences from scheduled work. In addition, an employer may not delay or attempt to defeat a reemployment obligation under the USERRA by demanding documentation that is not available to servicemember.

Notices and Posters

Employers are required to provide persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA. To do this, employers may post the notice entitled “ Your Rights Under USERRA(http://www.dol.gov/vets/programs/userra/USERRA\Private.pdf)_" where employer notices are customarily placed. Free copies of a poster are available on the Department of Labor web site.

Penalties / Sanctions

A court may order equitable relief, e.g. proper reinstatement, or compensation to a prevailing claimant for lost wages or benefits, liquidated damages for "willful" violations, plus attorney fees and costs of litigation. USERRA prohibits charging fees or costs to claimants filing a private action in State or Federal Court.

Relation to Other Laws and Agreements

USERRA does not preempt state laws; collective bargaining agreements; employer contracts, agreements, plans, practices or policies providing greater or additional rights or benefits. However, USERRA preempts all state laws; collective bargaining agreements; employer contracts, agreements, plans, practices, policies providing lesser rights or benefits, or imposing additional eligibility criteria.

Additional resources provided by the author

The provisions of the USERRA discussed here are found in 38 USC §§ 4301 through 4335; and in Department of Labor Regulations 20 C.F.R. 1002.1 through 1002.314.

NEED HELP?

Contact the author at 425-239-7290. Thomas G. Jarrard, JD, MBA is a USERRA lawyer with a nationwide practice dedicated exclusively to serving veterans and advocating for their rights. The Law Office of Thomas G. Jarrard, PLLC, 1020 N. Washington Street, Spokane, WA, 99203 is certified as veteran owned business by the Washington State Department of Veterans Affairs and Mr. Jarrard is an accredited attorney for claims before the United States Department of Veterans Affairs.

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