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The Right To Reemployment

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that gives members and former members of the U.S. armed forces (Active and Reserve) the right to go back to a civilian job held before being called up for Active duty. It also prohibits any job-related discrimination by your employer based on your military service or military service obligations.

Who is covered by USERRA's protections
You qualify for USERRA protection if you held a permanent (not temporary) civilian job before you went on Active duty. USERRA covers all private employers, state governments, and offices of the federal government. The law applies to people who serve in:

  • the Armed Forces
  • the Army National Guard and the Air National Guard when engaged in Active duty for training, inactive duty training, or full-time National Guard duty
  • the commissioned Corps of the Public Health Service
In time of war or national emergency, the President may also extend USERRA protections to other categories of people. You should have received information about USERRA from your service branch. If you haven't, you can request information from your unit's legal office.

What you must do to be eligible for USERRA's protections
Being a member of one of the groups covered by USERRA does not, by itself, ensure that you are covered by the Act's reemployment protections. You must also meet the following specific conditions:

  • You must give advance notice that you will be going on Active duty. You can give advance notice to your employer by
  • sending a letter by certified mail
  • hand delivering a letter
  • speaking with your employer directly
To guard against confusion later on (in case your employer claims you did not give advance notice), keep the receipt from the certified mail delivery, ask your employer to sign a note acknowledging receipt of a hand-delivered letter, or make notes of your conversation with your employer (the date, the person you spoke with, and what the conversation covered).

If you can't give advance notice because of military necessity or if advance notice is impossible or unreasonable under the circumstances, you may still be covered by USERRA's protections.
  • You can't be absent from your employer for more than five years. All of your absences from your employer are combined to get this total. For example, four six-month absences add up to a total of two years of absence. Check with your military adviser to find out about certain types of absence that are excluded from this calculation.
  • Your period of service has to be honorable. A letter from your commander is sufficient to prove this.
  • You must return to work promptly or make a timely application for reemployment. What "promptly" means depends on the length of the absence and is spelled out very specifically in the Act. If you are gone up to 30 days, for example, you must report back to the first shift that begins after safe travel time from your duty site plus eight hours to rest. If you are gone 31 to 180 days, you must apply in writing for work within 14 days after completing military service. If you are gone 181 days or more, you must apply in writing for work within 90 days.
If you are late in returning to work, you don't necessarily lose the right to your job. In general, you should be treated in the same way other employees are treated when they are absent from scheduled work. You could be penalized in some way, but you may be able to return to your job.


What protections are provided by USERRA
USERRA has been interpreted over time to include a number of protections. To find out more about these, speak to your unit's legal office. You may also want to look at the resources provided at the end of this article. It's a good idea to learn about the Act's protections well before your separation.

The basic protections provided by USERRA include the following:
  • You are not responsible for finding a replacement for your job or position.
  • You cannot be required to use vacation time for your military training or service.
  • In general, you must be treated by your employer as if you never left for military service. This means that your seniority, pension rights, or raises in salary, must be given to you as if your employment had never been interrupted and according to your company's established personnel policies.
  • Your right to reemployment does not depend upon the existence of your old position or a vacancy. Sometimes an employer will have to move another employee into a different position in order to reemploy a returning veteran.
  • Your salary must be the same as the salary you were paid when you left for Active duty (and, under the "escalator" principle, take into account the seniority you gained while absent).
  • Your employer must make reasonable efforts to train you on new equipment or techniques and to accommodate any service-related disability.
  • If you and your family choose to go back on your company's health plan, there is no waiting period and no exclusion of pre-existing conditions . You are entitled to immediate coverage by your company's health plan, including coverage of family members. A pre-existing condition is defined as an illness or disability that occurred before or during the time you were absent from work for military duty. The exclusion of such a condition means that the health plan will not pay for treatment of that condition. Some injuries may be excluded by your company's health plan if they were incurred or aggravated during service. Any such exclusion is based on an assessment by the Veterans Administration.
  • You can obtain health insurance during service. If you ask for it, your employer must continue to carry you and your family on the company health plan for up to 30 days of service at the normal cost to you.
  • You must make up any contributions to your pension plan that you missed during your period of service . Under the law, you are given extra time to do this.
  • If your period of service was 181 days or more, you are protected from discharge, except for cause, for one year . If your service was 31 to 180 days, you are protected from discharge, except for cause, for 180 days.
  • Your employer may not discriminate against you in hiring, retention, promotions, or other benefits of employment because you are a member of, apply to be a member of, perform, have performed, apply to perform, or have an obligation to perform in uniformed service .

What protections are not provided by USERRA
Your employer is not required to pay you for time that you are absent from work for military service. However, a federal law (5 USC 6323) does give federal civilian employees the right to 120 hours per year of paid military leave. About 40 states have similar laws for state and local government employees. And while it isn't a requirement, some private employers offer pay or partial pay during periods of military service. Check with your employer to find out about its paid military leave policy.


If you feel you are not being treated fairly
  • If you feel you are not being treated fairly or in accordance with the law, a conflict can be brought to the Ombudsmen Services Program of the Employer Support of the Guard and Reserve (ESGR). While the Ombudsmen Services Program does not provide legal service, it can offer informal mediation services and referrals to mediation to resolve employer conflicts. You can ask your unit's legal office for more information about this program.
  • You can file a complaint with the Department of Labor's Veterans' Employment and Training Service (VETS), which is charged with enforcing USERRA.
  • You can file a court action directly, without filing a complaint with VETS.


Resources
Employer Support of the Guard and Reserve (ESGR)
ESGR was established in 1972 to promote cooperation and understanding between reserve members and their civilian employers and to help resolve conflicts arising from an employee's military commitments. The ESGR Web site has information for service members and employers, including practical tips on avoiding service-related job problems and the full text of USERRA.

U.S. Department of Labor
USERRA is enforced by the Department of Labor's Veterans' Employment and Training Service (VETS). The Department of Labor has created a "USERRA Advisor" to explain the rules and provisions of the Act to service members and employers. It is posted on the Department of Labor's website

Reserve Officers Association (ROA)
The ROA is an information and advocacy organization serving Reserve, Active, retired, and former commissioned officers and warrant officers of the Uniformed Services. The ROA's magazine, The Officer , includes a regular column on USERRA issues. Copies of this column can be accessed on the ROA website. From the home page, click on "Legislative Affairs" then "ROA Law Reviews."


NOTE: The article above is intended to provide general information only. It reflects the law at the time of publication of this article. To find out how the law applies to your individual situation, or how to provide notice in the appropriate way, it is important to contact your legal assistance office and speak with qualified legal counsel.

Related Topics

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