With Veterans Day recently passed, it seems like a good time to remind employers of a federal law with teeth that protects employed servicemembers. It behooves employers not to overlook USERRA, the “Uniformed Services Employment and Reemployment Rights Act.” This Federal law gives members of the U.S. Armed Forces (Active and Reserve) the right to go back to a civilian job held before military service. USERRA applies to all employers (public, private and government) in the United States. Servicemembers qualify for USERRA if they meet the following 5-part test:
- Job – The servicemember must have a full-time civilian job before going on military active duty. Active duty includes any military-recognized duties, such as weekend drills, annual training, special training, and any other situation where the servicemember is assigned a duty status.
- Notice – The servicemember must give advance notice to the employer before leaving for active duty. This can be oral or written (although written is preferred).
- Duration – The servicemember can be gone from the civilian job for up to 5 years (total).
- Character of Service – If the servicemember is discharged, the discharge must be an honorable or general discharge.
- Prompt return to work – There are certain deadlines by which the servicemember must return to work, depending on the length of time the servicemember was on active duty.
If a servicemember meets this test, what protections does USERRA offer that member? First, upon request of the servicemember, the employer must continue to carry the servicemember and his or her family on the company health plan for up to 30 days of service at normal cost to the member. The member can get up to 18 months of coverage, but the employer can pass the full cost (including the company’s share) to the member.
Second, a qualifying servicemember can get his or her job back immediately if the member was gone 30 days or less. For service longer than 30 days, an employer must provide the member with his or her job back within a few days. For purposes of status, seniority and pay rate, the servicemember must be treated as if he or she never left for military service. If the member’s coworkers got promotions or raises during the member’s active-duty absence, the member must also receive the promotions or raises. An employer must also train the servicemember, if necessary, to refresh the member’s skills. Finally, servicemembers are entitled to immediate reinstatement of health benefits. No waiting period and no exclusion for preexisting conditions may be applied.
Also, be aware that USERRA is no longer just for the military. In 2022, President Biden signed the Crew Act, which extends employment protections under USERRA to Federal Emergency Management Agency (FEMA) reservists to deploy to major disaster sites.
At the beginning of this blog, I referenced USERRA as having “teeth.” And indeed, it does. An employer violating a servicemember’s USERRA rights can be liable for paying lost wages and benefits. In addition, an employer can also be required to pay liquidated damages in an amount equal to that of lost wages and benefits for willful violations, reasonable attorney fees, expert witness fees, and other litigation expenses, and be subject to injunctive relief, temporary restraining orders, and contempt orders to vindicate fully the rights and benefits guaranteed under USERRA.
USERRA is monitored and administered by the US Department of Labor. The Labor Department has a website dedicated to USERRA information. In addition, the National Committee for Employer Support of Guard and Reserve (ESGR) is a great organization dedicated to educating employers and working on behalf of military members in avoiding problems under USERRA. Both are good resources for more detailed information about rights and responsibilities under USERRA.
Remember, the purpose of USERRA is not to burden employers with onerous regulations but instead to eliminate the disadvantages to civilian employment that can result from such service, to minimize the disruption to the lives of persons performing uniformed service as well as to their employers, fellow employees, and communities, by providing for prompt reemployment upon completion of service; and to prohibit discrimination against persons because of uniformed service.
