ESGR's trained Ombudsmen answer thousands of questions every year. Below are some questions frequently asked by employers and Service members alike.
To assist with understanding the Uniformed Services Employment and Reemployment Rights Act (USERRA), ESGR has partnered with the Department of Labor to create a list of frequently asked questions (FAQs) concerning USERRA. These FAQs may help eliminate any problems between employers and employees by keeping them informed of their rights and responsibilities.
USERRA’s definition of “service in the uniformed Services” covers all categories of military training and service, including duty performed on a voluntary or involuntary basis in time of peace or war. Although most often understood as applying to Guard and Reserve military personnel, USERRA also applies to persons serving in the active components of the Armed Forces and the National Disaster Medical System and the Commissioned Corps of the Public Health Service.
USERRA applies to all public, private, and government employers in the United States, large and small. USERRA applies to foreign employers doing business in the United States and American companies operating in foreign countries, unless compliance would violate the law of the foreign country in which the workplace is located.
No. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her military service. Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA, testified or otherwise made a statement in or in connection with a proceeding under USERRA, assisted or participated in a USERRA investigation, or exercised a right provided for by USERRA.
Yes. A person, institution, organization, or other entity that has denied initial employment to an individual is in violation of USERRA’s anti-discrimination provisions. Under the act, an employer need not actually employ an individual to be his or her “employer,” if initial employment was denied on the basis of the individual’s military affiliation application for membership, performance of service, application for service, or obligation for service in the uniformed Services. For example, if the individual has been denied initial employment because of his or her obligations as a member of the Guard or Reserve, the company or entity denying employment is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer of employment because the individual is called upon to fulfill an obligation in the uniformed Services, the entity withdrawing the employment offer is an employer for purposes of USERRA.
In general, if the employee has been absent from a position of civilian employment by reason of service in the uniformed Services, he or she will be eligible for reemployment under USERRA by meeting the following criteria:
To be eligible for protection under USERRA, the Service member must report back to work or apply for reemployment within the following guidelines:
An application for reemployment need not follow any particular format. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. The application should indicate that the employee is returning from service in the uniformed Services and that he or she seeks reemployment with the pre-service employer. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested.
Documents that satisfy the requirements of USERRA include the following:
The types of documents necessary to establish eligibility for reemployment will vary from case to case. Not all of these documents are available or necessary in every instance to establish reemployment eligibility.
Yes, under USERRA, Service members are not required to provide documentation to prove an absence was due to uniformed service, unless that service is more than 30 days and the documentation is requested by the employer. However, per Department of Defense Instruction 1205.12, the Military Departments are required to verify periods of uniformed service upon an employer's request, regardless of duration of the service-related absence. Employers may reach out to the employee's military chain of command to request this verification.
The type of information about a Service member's uniformed service that can be released to third parties is outlined in DoD 5400.11-R, Department of Defense Privacy Program, May 14, 2007. In section C188.8.131.52.2.. the following are described as routine use disclosures specific to military members (see DoD 5400.11-R for complete list):
C184.108.40.206.2.1.1. Full name.
C220.127.116.11.2.1.5. Past duty assignments.
C18.104.22.168.2.1.6. Present duty assignments.
C22.214.171.124.2.1.7. Future assignments that are officially established.
C126.96.36.199.2.1.13. Duty status at any given time.
To review DOD 5400.11-R. Department of Defense Privacy Program, click here.
Reemployment rights are terminated if the employee is:
Yes. Federal employees have the same USERRA rights and responsibilities as non-Federal employees.
Federal employees can request assistance through ESGR or the Department of Labor Veterans’ Employment and Training Service (DOL VETS). When appropriate, DOL VETS can refer a case to the Office of Special Counsel or the Merit Systems Protection Board.
Yes. The employee, or an appropriate officer of the uniformed Service in which his or her service is to be performed, must notify the employer that the employee intends to leave the employment position to perform military service. If the employee has more than one employer, each employer must be notified of the impending leave of absence due to military service.
USERRA regulations provide that an “appropriate officer” can give notice on the employee’s behalf. An “appropriate officer” is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military branch concerned. The employee’s notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format.
Although USERRA does not state how far in advance notice must be given to the employer, an employee should provide notice as far in advance as is reasonable under the circumstances. The Defense Department “strongly recommends advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”
No. When the employee leaves the employment position to begin a period of service, he or she is not required to tell the civilian employer that he or she intends to seek reemployment after completing uniformed service.
Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service.
Yes. In general, the employee may perform service in the uniformed Services for a cumulative period of up to five (5) years, under the current statute, and retain reemployment rights with the employer.
USERRA creates the following exceptions to the five-year limit on service in the uniformed Services:
If the employee performs service in the uniformed Service for fewer than 31 days, he or she cannot be required to pay more than the regular employee share, if any, for health plan coverage. If the employee performs service in the uniformed Service for 31 or more days, he or she may be required to pay no more than 102% of the full premium under the plan, which represents the employer’s share plus the employee’s share, plus 2% for administrative costs. USERRA does not specify requirements for methods of paying for continuing coverage. Health plan administrators may develop reasonable procedures for payment, consistent with the terms of the plan.
On reemployment, the employee is treated as not having a break in service with the employer or employers maintaining a pension plan, for purposes of participation, vesting and accrual of benefits, by reason of the period of absence from employment due to or necessitated by service in the uniformed Services.
Yes. A disabled Service member is entitled, to the same extent as any other individual, to the escalator position he or she would have attained if not for military service. If the employee has a disability incurred in, or aggravated during, the period of service, the employer must make reasonable efforts to accommodate that disability and to help the employee become qualified to perform the duties of his or her reemployment position.
If the employee is not qualified for reemployment in the escalator position because of a disability after reasonable efforts by the employer to accommodate the disability, and to help the employee to become qualified, the employee must be reemployed in a position according to the following priority. The employer must make reasonable efforts to accommodate the employee’s disability and to help him or her to become qualified to perform the duties of one of these positions:
In the event a conflict arises that an employee and employer are unable to resolve, ESGR’s trained Ombudsmen can provide informal mediation. Call ESGR’s Customer Service Center at 800-336-4590, Option 1, to reach one of our trained Ombudsmen.
If the Service member or employer chooses to open a formal investigation regarding a USERRA violation, they may do so by contacting the Department of Labor.
Another option available would be to hire a private attorney.
Yes. The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement. The employer must determine the seniority rights, status, and rate of pay as though the employee had been continuously employed during the period of service.
The seniority rights, status, and pay of an employment position include those established (or changed) by a collective bargaining agreement, employer policy, or employment practice. In particular, the employee’s status in the reemployment position could include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility, and geographical location. If an opportunity for promotion, or eligibility for promotion that the employee missed during service is based on a skills test or examination, then the employer should give him or her a reasonable amount of time to adjust to the employment position and then give a skills test or examination.
Yes. USERRA does not prohibit lawful adverse job consequences that result from the employee’s restoration on the seniority ladder. Depending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated. For example, if an employee’s seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment, reemployment would reinstate the employee to layoff status.
Similarly, the status of the reemployment position requires the employer to assess what would have happened to such factors as the employee’s opportunities for advancement, working conditions, job location, shift assignment, rank, responsibility, and geographical location, if he or she had remained continuously employed. The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle.
No. USERRA does not provide protections for independent contractors. In deciding whether an individual is an independent contractor, the following factors need to be considered:
No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor.
The employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. In this status, the employee is entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay that are on furlough or leave of absence. Entitlement to these non-seniority rights and benefits is not dependent on how the employer characterizes the employee’s status during a period of service.
For example, if the employer characterizes the employee as “terminated” while performing military service, this characterization cannot be used to avoid USERRA’s requirement that the employee be deemed on furlough or leave of absence, and therefore entitled to the non-seniority rights and benefits generally provided to employees on furlough or leave of absence.
The non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan in effect at the employee’s workplace. These rights and benefits include those in effect at the beginning of employment and those established after employment began. They also include those rights and benefits that become effective during the employee’s period of service and that are provided to similarly situated employees on furlough or leave of absence.
If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs military service. As a general matter, accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence.
If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time as described below:
In a non-contributory defined benefit plan, where the amount of the pension benefit is determined according to a specific formula, the employee’s benefit will be the same as though he or she had remained continuously employed during the period of service. In a contributory defined benefit plan, the employee is allowed to make up contributions in order to have the same benefit as if he or she had remained continuously employed during the period of service.
In a defined contribution plan, the benefit may not be the same as if the employee had remained continuously employed, even though the employee and the employer make up any contributions or elective deferrals attributable to the period of service, because the employee is not entitled to forfeitures and earnings or required to experience losses that accrued during the period or periods of service.
Yes. If the employee’s most recent period of service in the military was more than 30 days, he or she must not be discharged, except for cause, for:
Yes, if the period of service exceeds 30 days and if requested by the employer to do so. If the employee submits an application for reemployment after completion of a period of service of more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that:
The employee is entitled to the seniority and seniority-based rights and benefits that he or she had on the date military service began, plus any seniority and seniority-based rights and benefits the employee would have attained if he or she had remained continuously employed.