Rights and responsibilities
The Uniformed Services Employment and Reemployment Rights Act, or USERRA, applies to all employers, regardless of size, including U.S.-controlled or U.S.-owned companies overseas.
Basic protections under the law include:
♦ Employers may not deny employment, reemployment, retention in employment, promotion or any other benefit of employment because of past or present membership in the armed forces or intent to join the military. This applies to active and reserve service, whether voluntary or involuntary. Employers must grant time off for military duty. Upon completion of military service, reservists must be given their civilian jobs back, provided that they meet the basic eligibility criteria of the reemployment rights law. Upon re-employment, reservists generally are entitled to the seniority status and pay rate they would have attained had they not been absent.
♦ Employers must make “reasonable efforts” to train or retrain returning employees and accommodate any disabilities incurred or aggravated during military service.
♦ National Committee for Employer Support of the Guard and Reserve. This Defense Department agency develops and promotes a culture in which all U.S. employers support and value the military service of their employees by advocating relevant initiatives, recognizing outstanding support, increasing awareness of the law and resolving conflict between employers and service members.
ESGR relies on over 4,700 volunteers nationwide to help answer questions and refer troops to resources that can help them in all 50 states, the District of Columbia and U.S. territories. The volunteer network has hundreds of ombudsmen trained to mediate employment issues.
USERRA has enforcement provisions. Monetary remedies usually are limited to what a reservist lost in seniority pay or status. The law also allows for reimbursement of attorney fees and other litigation costs to successful parties.
Disputes between reservists and employers are mediated by various agencies. They include:
♦ Veterans Employment Training Service. Disputes that cannot be resolved by informal mediation may be investigated by the Department of Labor’s Veterans Employment Training Service.
VETS provides several ways for reservists to begin the process of investigation. For example, the e-VETS Resource Advisor is an online program designed to help service members understand their rights and responsibilities and to learn whether a dispute warrants an official claim and investigation. To learn more, contact www.dol.gov/vets.
VETS also has developed an Internet-based system that allows USERRA claimants to officially submit a claim via the VETS website using an electronic version of Form 1010 (E1010). VETS staff members are available to provide technical assistance before filing an official claim. These can be accessed at www.dol.gov/vets/programs/userra.
During an investigation, VETS has access to all necessary records and documents of both employers and employees, the right to interview all parties involved, the right to subpoena witnesses and the right to apply to any U.S. District Court when noncompliance issues arise.
For more information, visit www.dol.gov/vets or call 202-693-4700.
♦ Office of Special Counsel. Federal employer cases are referred to the Office of Special Counsel. If satisfied that the claim has merit, this office may represent the claimant before the federal Merit Systems Protection Board. Alternatively, federal employees have the option of appealing directly to the Merit Systems Protection Board or with a private attorney.
Nonfederal cases are referred to the Department of Justice for consideration of representation in U.S. District Court. Claimants may proceed on their own or with a private attorney.
Reinstatement of health insurance after returning from military service is automatic. Moreover, employers must keep health insurance in place for employees who are serving in the reserves for less than 31 days. Reservists pay normal employee costs, if any, for this coverage.
Upon request, employers must provide continuation of health insurance to reservist employees serving longer than 30 days. This extended coverage continues for 24 months after the absence begins, until the date the person returns to work or until the deadline for applying for reemployment, whichever is sooner.
Reservist employees who elect continued coverage for 31 days or more may be required to pay up to 102 percent of the premium.
Reservists returning to civilian jobs after their service have the right to resume health care coverage immediately, with no waiting period or exclusions for pre-existing conditions, except for conditions determined by the secretary of veterans affairs to be service-connected.
Reservists also are entitled to enroll in another group health plan, such as the health plan of a spouse. Enrollment must be made within 30 days of losing coverage under their employer’s policy.
All of the health insurance provisions available by law apply to both the reservist employee and covered dependents.
Service members must give employers spoken or written notice of military service. Employers are then required to grant time off. Examples include:
♦ Military missions. Time off must be granted whether the reservist has been ordered to federal active duty or volunteers for a federal mission. Federal law typically doesn’t cover state activities for disaster relief and other similar missions, but many states have laws similar to federal law to cover such contingencies.
♦ National Guard or Reserve unit training. This includes monthly unit training assemblies and annual training for members of drilling units, as well as any other training the military deems necessary, such as acquiring skills or retraining in a new specialty when a reservist’s unit is deactivated.
To be protected under the law, reservists must notify employers of an upcoming military absence as soon as possible. This should be done in writing, but verbal notification is acceptable.
If the reservist cannot make the notification, an “appropriate officer” of the service can do it. Still, the law provides for times when, because of “military necessity,” no notice is required. The secretary of defense must determine such necessity, but usually it would be a military contingency requiring rapid mobilization.
Reservists don’t have to provide employers with a copy of their orders, but officials recommend doing so to avoid confusion.
Private employers typically aren’t required to pay employees on military leave, although some do. Others make up the difference between the employee’s military and civilian salaries if they earn less while in uniform.
While employers cannot require employees to use vacation time for military service or training, reservists can use vacation time if they choose.
Federal employees receive 15 days of paid military leave each fiscal year. Unused military leave can be rolled over into subsequent fiscal years. However, the maximum balance allotted to federal employees each fiscal year is capped at 30 military leave days.
Federal employees called to military duty as reservists may be charged federal leave only for the hours the employees otherwise would have worked at their federal jobs. For example, they may not be charged military leave for weekends if they normally do not work weekends.
The Office of Personnel Management has details on leave policies for federal employees. See www.opm.gov/oca/leave/html/milQA.asp.
A service member who receives a dishonorable or other punitive discharge is not entitled to reemployment.
The law requires reservists to return to work by a specific date after release from duty. Reservists on active duty for:
♦ Less than 31 days must return to work at the beginning of the next regularly scheduled shift on the first full calendar day following completion of their service, safe travel back home and an eight-hour rest period.
♦ More than 30 days, but less than 181 days, must apply for re-employment no later than 14 days after their release.
♦ More than 180 days have up to 90 days after completion of service to ask for their jobs back.
The law provides a period of protection for reservists returning from active duty to prevent so-called bad-faith rehiring, in which companies hire reservists to comply with the law and then fire them.
Reservists previously employed for more than 30 days can’t be fired without cause during their first six months back on the job. Those returning after more than 180 days of service can’t be fired without cause within one year.
The right to return to work is not absolute. Returning Guard and Reserve members may not be reemployed if the employer’s circumstances have changed in ways that make re-employment unreasonable or impossible.
The law requires employers to provide refresher training to sharpen employees’ skills and additional training if new equipment or technologies are used on the job. Reservists who incur disabilities as a result of military service have the right to be rehired and, if necessary, retrained for their former jobs.
Seniority. USERRA is based on the escalator principle. If the employee is in a position in which seniority would have been gained if not for activation, the employee must be given the seniority and benefits associated with it upon re-employment. Vacation and sick leave do not accrue while activated. However, if the employee gained seniority during military leave, and the new rating allows for additional vacation or sick leave, he has the right to receive these benefits upon reemployment in the new seniority ranking.