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Do you have questions concerning your obligations to your employer
as a military reservist or your employer's military obligations under the law
or are you encountering a conflict between work and your military service?
First, read the information below.
Then, if you or your employer need additional assistance,
contact the Maryland Ombudsman

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:

1. Must have left the job for the purpose of performing service in the uniformed services. 38 U.S.C. 4312(a). Law Review 5.
2. 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). Law Review 5.
3. 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). Law Review 6.
4. 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. Law Review 6.
5. 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). Law Review 7.

Frequently Asked Questions

1. What are the uniformed services?

2. What is “service in the uniformed services?"

3. Does USERRA apply to voluntary service?

4. How much notice am I required to give to my employer, prior to a period of service?

5. Am I required to provide my employer a copy of my military orders when I give notice of an upcoming period of service?

6. I take a lot of time off for military training and service. Now, I have been asked to perform service at a time that is particularly inconvenient for my employer. Is my employer permitted to veto my request for military leave?

7. Is my employer permitted to make me find a replacement for the time that I will be away from work performing service?

8. Is my employer permitted to make me use vacation for my military training or service?

9. Is my employer required to pay me for the period that I am away from work performing military training or service?

10. Is my employer required to provide me other benefits of employment while I am away from work performing service?

11. After a period of military training or service, how quickly am I required to return to work?

12. Does that mean that I must wait 90 days to get my job back?

13. If I am one day late in reporting for work or submitting my application for reemployment, do I lose the right to the job?

14. What does it mean to “submit an application for reemployment?”

15. How quickly am I entitled to return to work?

16.  I was the manager of a department, and I have been reinstated as the assistant manager of the same department. The assistant manager’s salary was increased to equal that of the manager, but I am not satisfied. Have my rights been violated?

17. Other than status and prompt reinstatement, what are my other entitlements as a returning veteran?

18. At our company, employees (as well as the employer) contribute to the pension plan. Am I required to contribute that which I would have contributed if I had been continuously employed? Is there a deadline for making up missed contributions?

19. Does USERRA protect me from discrimination by an employer or prospective employer?

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). Law Reviews 45, 46, 52.  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). Law Reviews 45, 46, 50, 51.  Back to the top

3. Does USERRA apply to voluntary service?

Yes. Please see the highlighted language above. Law Review 30.  Back to the top

4. How much notice am I required to give to my employer, 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. Law Review 5.  Back to the top

5. Am I required to provide my employer a copy of my military orders when I give 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. Your civilian employer is permitted and encouraged to call your commanding officer with questions about your service.   Back to the top

6. I take a lot of time off for military training and service. Now, I have been asked to perform service at a time that is particularly inconvenient for my employer. Is my employer permitted to veto my request for military leave?

No. 38 U.S.C. 4312(h). You are only required to give your employer notice, not to obtain your employer’s permission. However, as a matter of courtesy, we (ESGR) recommend that you phrase your notice as a request for permission. The employer has no right to veto the timing, frequency, duration, etc. of your military training and service. However, the employer is permitted to contact your commanding officer. It is Department of Defense (DOD) policy that the commanding officer should work with your employer to resolve conflicts of this kind. The commanding officer will accede to your employer’s reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment. Law Review 30.

If the timing of this training period presents a real problem for your employer, the commanding officer will try to adjust the schedule, 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 you perform training at a different time, you may miss important training that the rest of the unit received. As a result, you may not learn how 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. Is my employer permitted to make me find a replacement for the time that I will be away from work performing service?

No. You are responsible for giving the employer advance notice, if possible, but not for rearranging your schedule or finding a replacement.  Back to the top

8. Is my employer permitted to make me use vacation for my military training or service?

No. If you want to use vacation, you have the right to do so, but it is unlawful for your employer to make you use vacation. 38 U.S.C. 4316(d). Law Reviews 26, 58, and 59.  Back to the top

9. Is my employer required to pay me for the period that I am 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. Law Reviews 33, 71. About 40 states have similar laws for state and local government employees.

If you are exempt from the Fair Labor Standards Act (FLSA) overtime rules (because you are a manager, for example), the employer is 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 my employer required to provide me other benefits of employment while I am away from work performing service?

If and to the extent that your employer provides benefits to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), your employer must provide similar benefits to employees who are away from work performing service in the uniformed services. 38 U.S.C. 4316(b). Law Reviews 41, 58.

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, the employer is 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, the employer is 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). Law Review 10.  Back to the top

11. After a period of military training or service, how quickly am I required to return to work?

That depends upon the duration of the period of service from which you are returning. If the period of service is less than 31 days, you are 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 yours (e.g., automobile accident on return trip), you are required to report for work as soon as possible thereafter. 38 U.S.C. 4312(e)(1)(A)(ii). Law Review 5.

If the period of service was 31-180 days, you are 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, you 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 you are hospitalized for or convalescing from a service-connected injury or illness. 38 U.S.C. 4312(e)(2)(A). Law Review 5.  Back to the top

12. Does that mean that I must wait 90 days to get my job back?

No. The 90 days belong to you, not the employer. If you are anxious to get back on the payroll as quickly as possible, you should submit your application for reemployment right away. If you need time to readjust to civilian life, you should wait to submit your application. Once you apply, you are in effect saying that you are ready, willing, and able to return to work. Do not submit the application until that is the case. Law Review 77.  Back to the top

13. If I am one day late in reporting for work or submitting my application for reemployment, do I 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 you were one day late in reporting back to work, and if your employer’s usual sanction for one day of unexcused absence is a two-week suspension without pay, you would be entitled to the job but would be subject to the two-week suspension.  Back to the top

14. 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.” Your employer must not treat you as if you were applying for a new job.

We (ESGR) recommend that you make an explicit written application for reemployment, and we have included a sample application letter on our web site. Law Review 77. However, the application for reemployment can also be made orally, or even by implication.   Back to the top

15. How quickly am I entitled to return to work?

If the period of service was less than 31 days, and you show up for work at 8 a.m. on the next workday, you must be put back on the payroll immediately. If the period of service was 31 days or more, your employer is required to act promptly upon your application for reemployment. This should be a matter of days, not weeks or months. Law Reviews 8, 77.

The right to reemployment is not contingent upon the existence of a vacancy. Sometimes it is necessary for the employer 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. Law Reviews 8, 77.  Back to the top

16. I was the manager of a department, and I have been reinstated as the assistant manager of the same department. The assistant manager’s salary was increased to equal that of the manager, but I am not satisfied. Have my rights been violated?

Yes. 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 my other entitlements as a returning veteran?

You are entitled to immediate reinstatement of your 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). Law Review 10.

You must be treated, for seniority purposes, as if you had been continuously employed. Law Reviews 53, 59, 60. You are also entitled to receive missed employer contributions to your pension plan, as if you had been continuously employed. Law Reviews 4, 9, 40, 74, 75, 76.  Back to the top

18. At our company, employees (as well as the employer) contribute to the pension plan. Am I required to contribute that which I would have contributed if I had been continuously employed? Is there a deadline for making up missed contributions?

Yes to both questions. If you want to be treated as continuously employed during your period of service, you must make up the contributions you would have made if you had been continuously employed. After reemployment, you must make up the missed contributions within the period that amounts to three times your period of service, but not more than five years. 38 U.S.C. 4318(b)(2). Law Review 76.  Back to the top

19. Does USERRA protect me from discrimination by an employer or prospective employer?

Yes. “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” 38 U.S.C. 4311(a). Law Reviews 11, 64.  Back to the top

If these attempts don't succeed, please read the following carefully:

Important Note. Through the National Committee for Employer Support of the Guard and Reserve (ESGR), the Department of Defense (DoD) works hard to obtain and sustain employer and community support for National Guard and Reserve members who periodically are absent from their civilian jobs to perform military duty. If you have a question about employment rights, the experts- DoD, the U.S. Department of Labor Veterans' Employment and Training Service (VETS), and ESGR-suggest you start by contacting Maryland ESGR. This is not only your best option for speedy resolution; it protects all your levels of appeal if they are needed.

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.  Contact the Maryland ESGR Ombudsman at ombudsman@mdesgr.org.

For the most up-to-date information on your obligations to your employer
and your employer's obligations under the law,  go to the
National Committee's Military Members Information Page.
When you wish to return to the Maryland Committee Page,
just close the National Committee Page