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Uniformed Services Employment
and Reemployment Rights Act
The
Uniformed Services Employment and Reemployment Rights Act (USERRA)
is codified in title 38, United States Code, sections 4301-4333 (38
U.S.C. 4301-4333). The
complete text of USERRA is available on this web site.
CAPT Samuel F. Wright, JAGC, USNR, one of the
drafters of USERRA, writes a “Law Review” column for the Reserve
Officers Association. Those articles are available through the
Reserve Officers Association's Law Review Archive. Several of
those articles are cited in our answers to the below “frequently
asked questions.”
A person who leaves a civilian job for
voluntary or involuntary “service in the uniformed services” is
entitled to reemployment in the civilian job (with accrued
seniority) if he or she meets the following eligibility criteria:
- Must have left the job for the purpose of
performing service in the uniformed services. 38 U.S.C. 4312(a).
- Must have given prior oral or written
notice to the civilian employer. 38 U.S.C. 4312(a)(1) Prior
notice is not required if it is precluded by military necessity
or otherwise impossible or unreasonable. 38 U.S.C. 4312(b).
- Cumulative period or periods of service
in the uniformed services, relating to that particular civilian
employer, must not have exceeded the five-year limit. All
involuntary service and some voluntary service are exempted from
the five-year limit. 38 U.S.C. 4312(c).
- Must have been released from the period
of service, without having been “dropped from the rolls” or
having received a punitive or other-than-honorable discharge. 38
U.S.C. 4304.
- Must have reported back to work in a
timely manner, or have submitted a timely application for
reemployment. 38 U.S.C. 4312(e)(1).
Frequently Asked Questions
-
What
are the uniformed services?
-
What
is “service in the uniformed services?"
-
Does
USERRA apply to voluntary service?
-
How
much notice can I expect, prior to a period of service?
-
Is
the reservist or National Guard member required to provide me a
copy of his or her military orders, when he or she gives me
notice of an upcoming period of service?
-
I
have an employee who takes a lot of time off for military
training and service. Now, she has asked for time off for a time
that is particularly inconvenient for me. Am I permitted to veto
her request for military leave?
-
Am I
permitted to make the employee-reservist find a replacement for
the time that he or she will be away from work performing
service?
-
Am I
permitted to make the employee use vacation for his or her
military training or service?
-
Am I
required to pay the employee for the period that he or she is
away from work performing military training or service?
-
Is
the employee entitled to other benefits of employment while away
from work performing service?
-
After a period of military training or service, how quickly is
the employee required to return to work?
-
If
the employee is one day late in reporting for work or submitting
an application for reemployment, does he or she lose the right
to the job?
-
What
does it mean to “submit an application for reemployment?”
-
How
quickly am I required to put the returning employee back to
work?
-
The
manager of an important facility was called to active duty more
than a year ago. I filled the position, and the new manager has
worked out great. Reinstating the returning reservist would mean
displacing one of the best managers I have ever had, and that
would cause great disruption. Am I required to reinstate the
returning reservist?
-
I
propose to reinstate the returning reservist as the assistant
manager of the department, and I will increase the assistant
manager’s salary to equal that of the manager. Is that
sufficient?
-
Other than status and prompt reinstatement, what are the other
entitlements of the returning veteran?
-
At
our company, employees (as well as the employer) contribute to
the pension plan. Is the returning veteran required to
contribute that which he or she would have contributed if
continuously employed? Is there a deadline for making up missed
contributions?
-
Having a reservist or National Guard member on the payroll
sounds like a big hassle. I don’t think that I will hire any
more of them.
1. What are the uniformed
services?
USERRA defines the uniformed services as
the Army, Navy, Marine Corps, Air Force, Coast Guard, and the
commissioned corps of the Public Health Service. The Army
National Guard and Air National Guard qualify when performing
active duty for training, inactive duty training, or full-time
National Guard duty. Finally, during a period of war or national
emergency the President can designate any other category of
persons to be a “uniformed service” for purposes of USERRA. 38
U.S.C. 4303(16). Back to the top
2. What is “service in the
uniformed services?”
“The term ‘service in the uniformed
services’ means the performance of duty on a voluntary
or involuntary basis in a uniformed service under
competent authority and includes active duty, active duty for
training, inactive duty training, full-time National Guard duty,
a period for which a person is absent from a position of
employment for the purpose of an examination to determine the
fitness of the person for any such duty, and a period for which
a person is absent from a position of employment for the purpose
of performing funeral honors duty as authorized by section 12503
of title 10 or section 115 of title 32.” 38 U.S.C. 4303(13)
(emphasis supplied). Back to the top
3. Does USERRA apply to
voluntary service?
Yes. Please see the highlighted language
above. Back to the top
4. How much notice can I
expect, prior to a period of service?
We (ESGR) recommend that reservists and
National Guard members give as much advance notice as possible,
but USERRA does not specify any minimum period of notice.
Circumstances arise, especially in a mobilization scenario, when
the individual has very little advance notice from military
authorities. USERRA’s legislative history indicates that
Congress intended that the lateness of the notice to the
civilian employer should not defeat the right to reemployment,
especially when the individual had little or no notice from the
military. Back to the top
5. Is the reservist or
National Guard member required to provide me a copy of his or her
military orders, when he or she gives me notice of an upcoming
period of service?
No. USERRA imposes no such requirement. We
(ESGR) recommend that National Guard and Reserve personnel
provide to their employers such documentation as is readily
available. If you have any questions, you may call the member’s
commanding officer. If the member will not provide you that
information, please contact the
Maryland ESGR Ombudsman.
Back to the top
6. I have an employee who
takes a lot of time off for military training and service. Now, she
has asked for time off for a time that is particularly inconvenient
for me. Am I permitted to veto her request for military leave?
No. 38 U.S.C. 4312(h). She is only
required to give you notice, not to obtain your permission. You
have no right to veto the timing, frequency, duration, etc. You
are permitted to contact the Commanding Officer. It is
Department of Defense (DOD) policy that the Commanding Officer
should work with you to resolve conflicts of this kind. The
Commanding Officer will accede to your reasonable request to
reschedule military training, unless doing so would detract from
unit readiness and mission accomplishment.
If the timing of this training period
presents a real problem for you, the Commanding Officer will try
to adjust the schedule for you, but please understand that such
rescheduling must be kept to a minimum. National Guard and
Reserve units train together, and they must go to war together.
The training periods are scheduled so that the unit can be
trained together. If an individual unit member undergoes
training at a different time, it is likely to be impossible to
replicate the training that the rest of the unit received. As a
result, the individual unit member may not be able to perform
some critical task, resulting in additional casualties and
endangering the accomplishment of the mission.
Under the “Total Force Policy,” our nation
is more dependent than ever before upon the National Guard and
Reserve for essential military readiness. The National Guard and
Reserve make up almost half of the total pool of available
military personnel. Back to the top
7. Am I permitted to make
the employee-reservist find a replacement for the time that he or
she will be away from work performing service?
No. The employee is responsible for giving
you advance notice, if possible, but not for rearranging his or
her schedule or finding a replacement.
Back to the top
8. Am I permitted to make
the employee use vacation for his or her military training or
service?
No. If the employee wants to use vacation,
he or she has the right to do so, but it is unlawful for you to
make the employee use vacation. 38 U.S.C. 4316(d). Back to the top
9. Am I required to pay the
employee for the period that he or she is away from work performing
military training or service?
USERRA does not require an employer to pay
an individual for time not worked due to service. Another
Federal law (5 U.S.C. 6323) gives Federal civilian employees the
right to 120 hours per fiscal year of paid military leave. About 40 states have similar laws for state and local
government employees.
If an employee is exempt from the Fair
Labor Standards Act (FLSA) overtime rules, you are not permitted
to make a deduction for a part of a pay period missed because of
temporary military leave. See 29 Code of Federal Regulations
541.118(4). This is an FLSA requirement, not a USERRA
requirement. Back to the top
10. Is the employee
entitled to other benefits of employment while away from work
performing service?
If and to the extent that you provide
benefits to employees who have been furloughed (laid off) or to
employees on some kind of non-military leave (jury leave,
educational leave, etc.), you must provide similar benefits to
employees who are away from work performing service in the
uniformed services. 38 U.S.C. 4316(b).
An employee who is away from work
performing service in the uniformed services is entitled to
elect continued health plan coverage through the civilian job.
If the period of service is less than 31 days, you are permitted
to charge the employee only the employee share (if any) of the
cost of the coverage. If the period of service is 31 days or
more, you are permitted (but not required) to charge the
employee up to 102% of the entire premium, including the part
that the employer normally pays in the case of active employees.
38 U.S.C. 4317(a). Back to the top
11. After a period of
military training or service, how quickly is the employee required
to return to work?
That depends upon the duration of the
period of service from which the employee is returning. If the
period of service is less than 31 days, the employee is required
to report for work “not later than the beginning of the first
regularly scheduled work period on the first full calendar day
following the completion of the period of service and the
expiration of eight hours after a period allowing for the safe
transportation of the person from the place of that service to
the person’s residence.” 38 U.S.C. 4312(e)(1)(A)(i). If
reporting at that time is impossible or unreasonable through no
fault of such person (e.g., automobile accident on return trip),
the employee is required to report for work as soon as possible
thereafter. 38 U.S.C. 4312(e)(1)(A)(ii).
If the period of service was 31-180 days,
the employee is required to submit an application for
reemployment within 14 days after the end of the period of
service. 38 U.S.C. 4312(e)(1)(C). If the period of service was
181 days or more, the individual must submit the application for
reemployment within 90 days. 38 U.S.C. 4312(e)(1)(D). These
deadlines can be extended by up to two years if the individual
is hospitalized or convalescing for a service-connected injury
or illness. 38 U.S.C. 4312(e)(2)(A). Back to the top
12. If the employee is one
day late in reporting for work or submitting an application for
reemployment, does he or she lose the right to the job?
Not necessarily. “A person who fails to
report or apply for employment or reemployment within the
appropriate period specified in this subsection shall not
automatically forfeit such person’s entitlement to the rights
and benefits provided in subsection (a) but shall be subject to
the conduct rules, established policy, and general practices of
the employer pertaining to explanations and discipline with
respect to absence from scheduled work.” 38 U.S.C. 4312(e)(3).
If the employee was one day late in reporting back to work, and
if your usual sanction for one day of unexcused absence is a
two-week suspension without pay, the employee would be entitled
to the job but would be subject to the two-week suspension.
Back to the top
13. What does it mean to
“submit an application for reemployment?”
No particular form is required. The
message is: “I used to work here. I left for service. Now, I am
back from service, and I want my job back.” You must not treat
the applicant for reemployment as if he or she were applying for
a new job.
We (ESGR) recommend that returning
employees make explicit written applications for reemployment,
and we have included a sample application letter on our web
site.
However, the application for reemployment can
also be made orally, or even by implication. If a person you
know to be a former employee shows up at your office with
military discharge papers in hand, his or her failure to use
“magic words” like “I apply for reemployment” does not defeat
his or her right to the job. Back
to the top
14. How quickly am I
required to put the returning employee back to work?
If the period of service was less than 31
days, and if the person shows up for work at 8 a.m. on the next
workday, he or she must be put back on the payroll immediately.
If the period of service was 31 days or more, you are required
to act promptly upon the application for reemployment. This
should be a matter of days, not weeks or months. Back to the top
15. The manager of an
important facility was called to active duty more than a year ago. I
filled the position, and the new manager has worked out great.
Reinstating the returning reservist would mean displacing one of the
best managers I have ever had, and that would cause great
disruption. Am I required to reinstate the returning reservist?
Yes. The right to reemployment is not
contingent upon the existence of a vacancy. Sometimes it is
necessary to displace another employee in order to reemploy the
returning veteran. Congress recognized that this law imposes
burdens on employers, and that sometimes those burdens can be
severe. Congress decided that imposing such burdens on employers
is justified by the national defense needs of our nation. Back to the top
16. I propose to reinstate
the returning reservist as the assistant manager of the department,
and I will increase the assistant manager’s salary to equal that of
the manager. Is that sufficient?
No. Even if the salary is the same, being
the assistant manager is not of equal status to being the
manager. See Ryan v. Rush-Presbyterian-St. Luke’s Medical
Center, 15 F.3d 697 (7th Cir. 1994).
Back to the top
17. Other than status and
prompt reinstatement, what are the other entitlements of the
returning veteran?
The returning veteran is entitled to
immediate reinstatement of his or her health plan coverage,
through the job, including coverage for family members. There
must be no waiting period and no exclusion of “pre-existing
conditions” (except conditions that the U.S. Department of
Veterans Affairs has determined to be service-connected. 38
U.S.C. 4317(b).
You must treat the returning veteran, for
seniority purposes, as if he or she had been continuously
employed. You are also required to make up missed employer
contributions to the pension plan, as if he or she had been
continuously employed. Back to the top
18. At our company,
employees (as well as the employer) contribute to the pension plan.
Is the returning veteran required to contribute that which he or she
would have contributed if continuously employed? Is there a deadline
for making up missed contributions?
Yes to both questions. If the returning
veteran wants to be treated as continuously employed during the
period of service, he or she must make up the contributions he
or she would have made if continuously employed. After
reemployment, the veteran must make up the missed contributions
within the period that amounts to three times the period of
service, but not more than five years. 38 U.S.C. 4318(b)(2). Back to the top
19. Having a reservist or
National Guard member on the payroll sounds like a big hassle. I
don’t think that I will hire any more of them.
Discrimination in hiring is unlawful. It
is also unlawful to fire someone for being in the National Guard
or Reserve, or to discriminate with respect to promotions or
other benefits of employment. 38 U.S.C. 4311. Back to the top
We (ESGR) recognize that employing National
Guard and Reserve personnel can pose challenges for civilian
employers, but please remember that there are also advantages to
employing these people. They know how to manage time, and they are
focused on mission accomplishment. They learn how to take and give
orders. They receive tens of thousands of dollars worth of training,
often directly transferable to civilian job skills, at no cost to
you, the employer. They are physically fit. They are regularly
tested and are certifiably drug-free. On balance, employing National
Guard and Reserve personnel is a big plus for the civilian employer,
and for the nation. ESGR also stands ready to assist you in the
management of your Guard and Reserve employees.
The Ombudsmen Services Program was established in 1974 to provide
information, counseling, and informal mediation of issues relating
to compliance with the Uniformed Services Employment and
Reemployment Rights Act (USERRA). The Ombudsmen Services Program
provides information, informal mediation, and referral service to
resolve employer conflicts. ESGR is not an enforcement agency and
does not offer legal counsel or advice. More than 95 percent of all
such requests for assistance are resolved in this informal process,
without requiring referral to the Department of Labor for formal
investigation. You can contact the Maryland ESGR Ombudsman at
ombudsman@mdesgr.org.
For more information on your obligations as an employer
of a
military reservist or your employer's obligations to you under the
law, visit
National Committee's Employer
Information Page.
When you wish to return to
the Maryland Committee Page,
just close the National Committee Page |
