USERRA: Federal

Authors: Matthew K. Johnson and John T. Merrell, Ogletree Deakins

Summary

• The Uniformed Services Employment and Reemployment Rights Act of 1994 is a federal law that applies to all public and private sector employers regardless of their size or location. See Preparing for USERRA.
• USERRA is administered by the United States Department of Labor, through the Veterans' Employment and Training Service. See USERRA Investigative Process, Enforcement and Remedies.
• USERRA's main objectives are to: encourage non-career uniformed service; minimize disruption to individuals performing service and their employers, fellow employees and communities; ensure prompt reemployment of those who have served or serve in the uniformed services; and prohibit discrimination based on an individual's service or affiliation with the uniformed services. See Purpose.
• Most employees are eligible and will qualify for uniformed services leave, with a few limited exceptions. See Employee Eligibility and Qualifications for Leave.
• Employers cannot refuse to hire an applicant or fail to reemploy, promote or provide other employment benefits to an employee based on an individual's membership, application for membership, performance of service, application for service or obligation for service in the uniformed services. See Prohibited Actions; Key Definitions.
• Employers cannot discriminate or retaliate against an employee for exercising his or her USERRA rights, testifying in connection with a proceeding relating to USERRA or assisting in a USERRA investigation. See Prohibited Actions.
• Many states have passed laws similar to USERRA in order to protect individuals who serve in the uniformed services. These state laws may place greater obligations on employers with respect to uniformed services leave and provide employees with greater protections and rights than USERRA. See State Requirements.
• USERRA places many affirmative obligations on employers. One obligation is to accommodate employees who need to take a leave of absence to fulfill their service in the uniformed services. USERRA's definition of service in the uniformed services is broad and includes many types of uniformed service, both voluntary and involuntary. See Key Definitions.
• While employers must accommodate an employee's uniformed services leave request, employees do have a time limit as to how long they can be absent from employment due to uniformed services leave. However, there are several categories of service that cannot be counted towards this time limitation. See Preparing for USERRA; Employee Obligations for Reinstatement.
• Employers must provide employees on uniformed service leave the same benefits provided to employees on comparable leaves. See Benefits When Employee Is on Leave.
• Employers are not required to pay employees on uniformed services leave unless they promise to do so by policy or contract. However, USERRA provides expanded pension rights for employees on uniformed services leave and gives specific rights regarding an employee's continuous health benefits coverage. See Compensation When Employee Is Out on Leave; Benefits When Employee Is on Leave.
• Employees who return to civilian employment following uniformed services leave must meet USERRA's eligibility requirements. Examples of eligibility requirements under USERRA include providing advance notice to employers (unless such notice is impossible or unreasonable), returning in a timely manner and being discharged from uniformed service under appropriate conditions. See Employee Obligations for Reinstatement; Employee Notice Requirements.
• Employers also have obligations under USERRA when it comes to an employee's return to employment following uniformed services leave. These include the duty to reemploy eligible servicemembers promptly and to reemploy eligible servicemembers in the appropriate position and at the appropriate rate of pay, benefits and seniority. In certain cases, employers may need to provide training that allows an employee to qualify for reinstatement. See Employer Obligations for Reinstatement.
• Generally, USERRA requires that employers reinstate an employee to the position he or she would have attained, with reasonable certainty, had he or she not gone on uniformed services leave. This is known as the escalator position. See Employer Obligations for Reinstatement.
• Depending on the length of an employee's uniformed service, an employee may be protected from being fired for a certain period of time, unless the termination is for cause. See Job Security.
• An employer that violates USERRA may be subject to a complaint being filed with several governmental entities, a lawsuit brought on the employee's behalf by the United States government or a private lawsuit. See USERRA Investigative Process, Enforcement and Remedies.
• Employers should always check that other laws do not apply to employees taking uniformed services leave. For example, returning employees with a service related injury may be entitled to additional leave as a reasonable accommodation under the Americans with Disabilities Act. USERRA leave may also impact employees' rights under other internal policies. See USERRA Interplay.