If you are a member of the National Guard or Reserve with a full-time civilian job, you are entitled to certain benefits and protections when you are called to active duty to mobilize or deploy.
Uniformed Services Employment and Reemployment Rights Act Overview
USERRA is an act that protects members of the military who have served or are serving by establishing specific rights and benefits for them as employees. It also sets the duties and responsibilities for employers with regard to the employment, reemployment, and retention of military members in civilian jobs. USERRA is most closely associated with National Guard and Reserve members, but the anti-discrimination aspects of the law also apply to veterans, active duty service members, and anyone considering joining the military.
A floor was created by USERRA for the rights of those it protects, not a ceiling. Therefore, your employer may provide better rights and benefits than required by USERRA, but they cannot to refuse to provide rights or benefits guaranteed by the law.
Anti-Discrimination and Anti-Retaliation Protection
Your employer (or potential employer) cannot deny initial employment, reemployment, retention in employment, promotion, or benefits to you on the basis of your membership or application for membership in the military. They also cannot retaliate against you if you take action to enforce a protection afforded you by USERRA.
Rights and Benefits When Mobilizing/Deploying
Upon receiving notice that you will be called to mobilize or deploy, you should alert your employer as soon as possible. Your time away must be treated as a furlough or leave of absence and you cannot be required to use your vacation time or annual leave. You may opt to use your vacation time in order to continue to receive paychecks but you cannot be forced to use it.
Rights and Benefits While Mobilized/Deployed
Your time away must be treated as “continuous service” by your employer, as it relates to pension plans and benefits. It cannot be considered a break in service. While you’re away, your employer does not have to continue providing you with health care insurance but if you request, they are required to carry you and your family on the company health plan for up to 30 days at normal cost to you.
Reemployment and Reinstatement of Health Plans
Upon your return from deployment, you are entitled to prompt reemployment in your original position or one of similar seniority, status, and pay. You are also entitled to any additional benefits or promotions that you would have received had you not left. If your position requires a certification that has lapsed, your employer is required to provide you with the training needed to qualify you, as long as doing so does not present an undue hardship for your employer. If you choose to go back to your company health plan for you and your family, your employer must reinstate you to the plan immediately upon reemployment. There can be no waiting periods and no exclusion due to any pre-existing conditions.
When you return from deployment and re-start your full-time job, your employer may not terminate you without just cause for a period of time based on your time away for military duties. If you were away for more than 180 days, your employer cannot terminate you (without just cause) for one year after your reemployment. If you were away for between 31 and 180 days, your employer cannot terminate you within 180 days of reemployment.
Eligibility Requirements for Protection under USERRA
If you were absent from a civilian job because of service in the military, you are eligible for reemployment under USERRA if you meet the following criteria:
- you gave your employer advance notice that you would be away for military duties
- you were not away from the job for over 5 years
- you were released from military service under conditions other than dishonorable
- you report back to the civilian job and submit your application for reemployment in a timely fashion
Circumstances Allowing for the Denial of Reemployment
If your employer’s situation has changed so that reemployment of you is impossible or unreasonable, then they can legally deny your reemployment. They can also deny you if you are no longer qualified to hold the position and helping you become qualified would cause them an undue hardship. Lastly, if your job was for a brief period with no reasonable expectation that such employment would continue indefinitely, the employer can deny you reemployment.