USERRA: A Timely Reminder

“USERRA: A Timely Reminder”

Given the recent military action, both globally and nationally, it is a prime time for employer and human resources professionals to brush up on the Uniform Services Employment and Reemployment Rights Act (“USERRA”).  USERRA guarantees the rights of military service members, including members of the National Guard and those on active or reserve duty, to take a leave of absence from their civilian jobs for e military service, including training, and to return to those jobs with their accrued seniority.  The law also provides other employment protections. 
 
USERRA prohibits employers from discriminating or retaliating against employees based on their past military service, their current military obligations, and any potential or future military service. USERRA also protects employees from retaliation for having filed a complaint under USERRA or otherwise exercising the rights under the law. 
 
USERRA applies to all employers regardless of their size or their industry.  It also protects all employees regardless of their status as part-time, full-time, or probationary.  An employee is not required to work for an employer for any length of time prior to becoming eligible for coverage under USERRA.  USERRA protections apply to all military service, including reserve duty, regardless of whether the service is voluntary or involuntary. 
 
Employers must provide employees with USERRA protected leave for all military service, regardless of the amount of notice provided by the employee.  While the law does encourage service members to provide advance notice of the need for such leave where possible, it also acknowledges the emergency nature of military service and does not require a set amount of notice for the law to apply.  An employee may be absent for military service from one employer for up to five cumulative years.  There are some exceptions to the five-year rule, which are enumerated in the law. 
 
At a minimum, employees on military leave must be treated the same as employees on other types of unpaid leaves of absence.  USERRA, however, also grants employees on military leaves greater rights than employees on other types of leave.  For example, when an employee on military service is reemployed, they must be granted the same rights and benefits they would have had but for their military service.  Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.  To receive the full benefit of the protections of USERRA, an employee must submit an application for reemployment within a specified period of time, depending on the length and nature of their leave.  Employees who are dishonorably discharged are not eligible to assert their rights under USERRA. 
 
Like many other labor and employment laws, USERRA is complicated and requires employers to provide certain protections and benefits for employees who are called to military service.  The U.S. Department of Labor has a pocket guidebook to the law which can be found here:  https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide.  This guide demonstrates the complexity of the law and the need to evaluate each situation to determine an employee’s benefits and entitlements under the law.  myHRcounsel can assist  you in navigating these compliance requirements.