Purpose. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) clarifies and strengthens employment and reemployment rights of veterans and those who desire to serve in the military. The Act prohibits discrimination against persons because of their service in the uniformed services.¹ Service in the uniformed services is defined to include active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a time for the purpose of an examination to determine the fitness of a person to perform any such duty.² Persons who were dishonorably discharged are excluded.

Reemployment rights. Any person who is absent from employment due to service in the uniformed services is entitled to rights under the Act as long as advance verbal or written notice of such service was given to the employer, the length of all absences from that employer due to service in the uniformed services does not exceed five years, and the person timely submits an application for reemployment.³ The five year period has a number of exceptions defined in the Act.

Return to work. Generally, under the Act, if a person serves less than 31 days, the servicemember must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an 8 hour rest period. For service of more than 30 days but less than 181 days, the servicemember must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.⁴

Reemployment positions. The USERRA generally provides that returning servicemembers be reemployed in the job they would have attained had they not been absent for military service, with the same seniority, status and pay. The USERRA also requires that reasonable efforts (such as training) be made that would enable returning servicemembers to refresh or upgrade their skills so they may qualify for reemployment.⁵

Discharge for just cause. The Act also provides that a person whose period of service exceeds 180 days cannot be discharged upon reemployment, except for cause within one year after reemployment. If the service period was from 31 to 180 days, the person cannot be discharged except for cause for a period of 180 days after reemployment.⁶ A qualified person may also receive any paid vacation or leave accrued prior to service.⁷

Health and pension plans. USERRA protects the health and pension benefits of qualified persons under the Act. Individuals performing military duty of more than 30 days may elect to continue employer-sponsored health care for up to 18 months. However, they may be required to pay up to 102 percent of premium.⁸ The Act also protects pension benefits and provides that military service is also service for the employer for purposes of determining accrual of benefits under the plan.⁹

Enforcement and remedies. The Department of Labor through the Veterans' Employment and Training Service provides assistance to persons protected under the Act. Claims of violations of the Act can be made through the Department of Justice or by private action.¹⁰ If violations are willful under the Act, the individual may receive liquidated as well as lost wages and benefits. In addition, reasonable attorney fees and expenses may be recovered.¹¹

New USERRA Notice of Rights and Benefits Now Available for Employers to Download and Post

U.S. Secretary of Labor Elaine L. Chao announced on March 10, 2005, that a notice in poster format explaining the rights of employees under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is now available for employers to download from the Department of Labor (DOL) Web site.

The Veterans Benefits Improvement Act, enacted by Congress in December 2004, mandates that employers provide the notice to "all persons entitled to rights and benefits under USERRA."

Employers may meet this obligation by posting the notice in a prominent place where employees customarily check for such information.

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service. The law also prohibits employers from discriminating against past and present members of the uniformed services and applicants to the uniformed services.

The USERRA poster is now available in PDF format at http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf. Employers can obtain detailed information about USERRA by calling 1-866-4-USA-DOL or by visiting http://www.dol.gov/vets/programs/userra/.

 

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SOURCES

1. 38 U.S.C. §§4301 et seq.
   
   
2. 38 U.S.C. §4303(13).
   
   
3. 38 U.S.C. §4312.
4. 38 U.S.C. §4312(e)(1).
   
   
5. . 38 U.S.C. §4313 and §4316.
   
   
6. 38 U.S.C. §4316(c).
   
   
7. 38 U.S.C. 4316(d).
   
   
8. 38 U.S.C. §4317.
9. 38 U.S.C. §4318.
   
   
10. 38 U.S.C. §§4321-4323.
    
    
11. 38 U.S.C. §4323(c).