Userra Law: Everything You Need to Know
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a legislation that protects the rights of uniformed service members when entering civil employment. 8 min read
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a legislation that protects the rights of uniformed service members when entering civil employment. It is a federal law that defines the rights and responsibilities of Armed forces, National Guard, and Reserve personnel, as well as other uniformed service members and their civilian employers.
The USERRA ensures that uniformed service personnel mentioned above are
- Not disadvantaged in their employment due to their service
- Redeployed in civilian positions when they return from duty
- Protected from discrimination based on their military service
The USERRA law's main purpose is to encourage uniformed staff to be safely redeployed in the private or public sector. It also helps utilize the skills of qualified service personnel outside of uniformed occupations. It protects the rights of uniformed service personnel who leave their deployment voluntarily or involuntarily. It covers employment, retention, reemployment, and in-work rights.
The USERRA is supported by the Employer Support of the Guard and Reserve (ESGR) program, within the Department of Defense, and was established in 1972 with the purpose of nurturing collaboration between civilian employees and members of the Reserve Component Service. It aims to reduce the conflict that is caused by the military commitment of members at their regular civil or public service workplace. The ESGR educates and trains service members, as well as their civilian employers on the rights and responsibilities of each individual or organization.
It is important to note that the ESGR does not reinforce the USERRA Law, only advises on the legal rights and responsibilities. It offers free resources and training for service members and their employers.
Job Rights of Veterans and Reserve Component Members under USERRA Law
The USERRA law focuses on the protection of civilian job rights and employee benefits provided for veterans as well as members of the Reserve components. The main benefit of the USERRA legislation and the guidelines is to establish a legal framework for redeployment protection and define the criteria for benefits and eligibility. The USERRA Law also covers how each claim for benefits and protection should be dealt with by the Federal Government.
One of the most important elements of the USERRA is that it protects the position of service personnel through the "escalator principle". This principle states that those who return to service after taking a civilian job are redeployed in a position that they would be in if they did not leave the service. This guarantees service members get protected seniority and related benefits. If a service member is not eligible to be accepted in an "escalator position", the law provides guidance on alternative positions to be offered to them. Non-seniority rights are also guaranteed to service personnel returning to military or armed forces positions.
There are further rights that are defined and protected under USERRA, such as the protection of disabled veterans returning to work, making it compulsory for employers to accommodate their needs in the workplace.
Redeployment Rights Defined by USERRA Law
If uninformed personnel are eligible for reemployment, they need to be restored in their original positions and their previous rights and employee benefits need to be protected. Further, they will gain additional rights that those in comparable jobs have.
- Withing 14 days of release from service, the service member must submit a reemployment application for service between 30-181 days.
- Individuals serving over 180 days need to submit an application for redeployment within 90 days from the date they were released from the service.
Under USERRA Law, service members need to provide their employers an advance written or verbal notice informing them about their military duties and commitments. However, it is also recommended that military personnel use their civilian vacations or annual leave to perform their service duty, instead of leaving their employment temporarily with these days unused.
Health Insurance Protection Under USERRA Law
The USERRA Law also provides guaranteed health and pension plan coverage for service members under the following terms:
- Individuals who perform military duty for at least 30 days can carry on with their employer sponsored health insurance plan for a maximum of 24 months, but they might need to pay up to 102 percent of the premium.
- Even if the employee does not choose to continue with the employer's coverage during their military service, they will have the right to request the reinstatement of the original conditions upon their return without exclusions or waiting periods, provided that their health status was not significantly affected by their deployment.
Enforcement of USERRA Law
There is no appointed body to enforce the USERRA law. The U.S. Department of Labor, Veterans Employment and Training Service (VETS) has the authorization to investigate, resolve, and negotiate complaints related to violations of the law.
Employees can submit a complaint with VETS if they believe that their employer violated the USERRA Law. In case VETS cannot resolve the dispute, the case is transferred to the Department of Justice or the Office of Special Counsel for further investigation and potential representation.
Frequently Asked Questions
- Does the USERRA law govern the redeployment rights of a service member after completing a military service or training?
A different legislation, the 1940 Veterans' Reemployment Rights (VRR) law, had been governing redeployment rights until October 13, 1994. On that date, the Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed by President Clinton as a revision of the VRR. The law came into force in December 1994. Today, the USERRA governs these concepts.
- Who has reemployment rights determined by the USERRA after leaving military service?
The eligibility criteria states that individuals who applied for a civilian job after leaving the service have their reemployment rights protected under the USERRA. Those who held the civilian job for a brief period need to provide their employers with a written or verbal notice of their military service or training. The exception is when there is an urgent military need and giving notice is not possible. The individual holding a civilian job should not spend longer than a cumulative 5-year period performing military duties. Any individuals who were released under any condition other than dishonorable are eligible. It is also required that employees returning to their civilian jobs submit an application for reemployment in a timely manner.
- When and how does an employee need to provide a civilian employer with prior notice?
The notice requirement is uniform across all training and service categories. The only time when no notice is needed when there is a military necessity or it is unreasonable or unnecessary to inform the employer of the training or service. Military necessity is determined by the regulations of the Department of Defense, and this government agency decides whether or not there is a need for an advance notice. There are only a few cases when notice is not necessary, though.
According to the advisory of the Department of Defense, notices should be reasonable and delivered as early as possible.
- What type of proof is needed for proving the eligibility for reemployment?
To prove one's eligibility for reemployment, the individual needs to provide the Secretary of Labor leave and earnings statements, pay slips, discharge documents, a letter from the related military service authority, school certificates, and endorsed orders. If employees are unsure whether the documentation is accepted, they should contact their military command for further guidance and additional proof.
- How do they calculate the USERRA 5-year limit?
Members of the uniformed services can take part in military service and training for a maximum of 5 years, under the USERRA law, while holding a civilian job. The five-year limit is calculated on a cumulative basis, and applies to each new employment individually. It is important to know that certain types of military training are not included in the five-year limit, such as:
- Required dannual training and drill requirements necessary for maintaining and updating skills
- When the personnel cannot be released from service, due to obligatory requirements or performing specialist jobs
- Service during a national emergency, such as disaster situations or war
- Do employees need to use earned vacation or annual leave to perform military training or service?
Employers cannot force workers to use earned vacations to perform military service or training. They are entitled to both annual leave and time off for military service. There are, however, some exceptions, such as when there is a need for all employees to take time off, in case of an annual maintenance or shutdown of a plant during the time when the personnel is requesting a military leave.
- Do military personnel have the right to maintain employment benefits from their civilian employer during their military service under USERRA?
Under USERRA, employees and their dependents will have the right to maintain or reinstate their health insurance cover provided by their civilian employer during service or after their return to employment. Employees can opt to continue their health insurance with their civilian employer for a maximum of 24 months. When they return from service, their coverage must be reinstated without waiting times or checks, unless they developed health conditions or suffered injuries during their service. Upon return to the job, the law gives the employee and other dependents who were previously covered the right to immediate reinstatement of civilian health insurance coverage.
- What does the employer need to provide returning service personnel when they are reemployed?
Returning personnel need to receive training, previous accommodation arrangements, and their special needs have to be accommodated by the employer. Service members are also protected from discharge, except for when there is a strong cause for 180 days, if their deployment was between 31 and 180 days, and for one year if they were deployed for over 180 days.
- Will returning employees always get their jobs back?
If the person served for less than 91 days, they are entitled to get their job back under the USERRA regulations, provided that they are qualified to do the given job. If the person cannot be qualified for the position, and the employer can prove that they made reasonable efforts to support them, the person would get their previous job back.
Where to Get Help with USERRA Law
Employers who are confused about the USERRA law need to contact the National Committee for Employer Support of the Guard and Reserve (NCESGR) for advice and guidance. They can reach the ombudsman service on a toll-free number. The service is available Monday to Friday 9 a.m. to 6 p.m. EST.
The ESGR's Ombudsman Services Program is set up to deal with disputes and legal challenges related to the employment rights of military personnel. They can answer specific questions of employees and company representatives related to USERRA law. The specifically trained volunteer ombudsmen can help Guard and Reserve members negotiate with their civilian employers and provide impartial, neutral advice.
The ESGR Customer Service Center is available to answer USERRA questions.
Specially trained Ombudsmen are available to assist members of the Guard and Reserve in resolving disputes with their civilian employers related to military service in the uniformed Services through neutral and impartial mediation.
The service can help resolve disability discrimination, employment rights issues, and reemployment conditions, as well as clarify the terms of health insurance coverage.
It is important that employers talk to the ombudsman service before they make decisions on reemploying military personnel or rewriting contracts. Under USERRA, it is unlawful to deny employment based on one's past, present, or future service commitments. While many employers might be concerned about the timing of training and service, they can overcome the difficulties and protect their own interest, as well as the rights of their employees.
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