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Understanding Your USERRA Rights


This one’s for the reserve component troops here – of any branch of service. The military is relying on its Guard and Reserve component troops more than at any time since World War Two. Indeed, after GEN Creighton Abrams redesigned the Army after the Viet Nam War under the Abrams Doctrine, the military cannot deploy to a war zone without a substantial reserve component call-up. Too many vital logistical functions are in the Reserve component for the military to function without it – along with half the combat formations in the Army.

Congress has long understood the importance of the Reserve Components to our national security – and has taken steps to ensure that members of our Reserve and Guard components are not discriminated against in hiring, promotion, retention or firing.

What is USERRA?

USERRA stands for the Uniformed Services Employment and Re-employment Rights Act. The Act, recently updated to reflect the expanded role Reservists and Guardsmen are playing in the War on Terror, makes it illegal for employers to discriminate against reserve component service members on the basis of their military status.

The law also requires employers to grant service members up to 5 years of military leave upon request for the purpose of attending drills, service schools, training functions and mobilizations.

Who Does USERRA Cover?

USERRA specifically covers members of the Reserves, as well as members of the National Guard who have been called up to serve on Title 10 orders, meaning the source of funding is federal. Because USERRA is a federal law, it does not generally apply to National Guard members attending unit drills or state mobilizations. However, states generally have their own parallel state law which closely aligns with the USERRA provisions concerning discrimination and military leave.

When Guard members are called to active duty on Title X orders, as opposed to Title 32, then USERRA applies. The Department of Labor and the Department of Justice are the primary enforcing authorities for violations of the federal law. For violations of state laws protecting National Guard members, the state Department of Labor and Workforce Development, or its equivalent, is generally the enforcing authority.

What Rights Do I Have as a Reserve Component Service Member?

Under USERRA, you have the right not to be discriminated against because you are in the military reserves. Employers cannot screen you out or refuse to hire you because you are affiliated with the military. Even if the job requires you to work weekends, and you will have to request leave for one weekend per month to attend drill, the employer cannot refuse to hire you based on your military affiliation.

Your employer also cannot use your military affiliation against you when it comes to promotions. You cannot be denied a promotion because you took too much time off to attend military functions.

Your employer must grant military leave upon request. If you have orders to report for duty, your employer is required to grant you sufficient time off to attend the military function or drill, plus reasonable travel time.

The request need not be formal or written – the law also protects you in the event you provide a verbal request. There is also no legal minimum amount of notice you must give. However, you do have a responsibility to provide the employer with as much notice as reasonably possible so that they can make arrangements for your absence. If you have had mobilization orders for six months, but you only provide your employer with 24 hours’ notice of your deployment, and you have a problem with your employer when you return, you may have a hard time getting your way in court, if you had to sue.

The law makes no distinction between mobilizations you volunteered for and involuntary mobilizations or duty. Even if you volunteered for an assignment, your employer is required to grant you military leave upon request.

While you are on duty, your employer does not need to pay you. Some employers do make up any difference between your military pay and your civilian pay if you are mobilized. This is voluntary, though. They don’t have to do this.

Employer Health Insurance Benefits

You may choose to keep your employer health plan. This can be important if your employer health plan provides your family better coverage and delivery in your area than TRICARE. If your absence is for 31 days or less, the employer must still pay their portion of the premium. However, if your absence is for 31 days or more, the employer can have you pay their portion of the premium as well as yours, plus an additional 2 percent. The total premium should be more than 102 percent of the combined employee/employer premium, however.

Promotions While on Military Leave

While you are away on military leave, the law requires employers to grant you any promotions and seniority benefits your peers receive, or anything you would reasonably expect to have received had you never left.

The governing idea is called the “elevator principal.” For any absence less than five years, the law requires employers to allow you to step off the career elevator at the same level of seniority, pay, benefits and responsibility you would have achieved had you never left.

Pensions must continue to accrue (though your employer does not need to make new contributions to pension funds on your behalf while you are away on military leave.

Reentry

USERRA and its state law equivalents all require employers to grant a returning reservist or National Guard the job she would have received had she never left. The returning service member is entitled to his or her full seniority and status that he or she would have enjoyed had there been no military absence.

In some cases, the service member may need to be retrained. If the service member has become disabled while on military leave, the employer must make reasonable accommodation to enable the service member to perform his or her job.

There are cases where a service member returns to a company that no longer exists, or has laid so many workers off that the employee’s old job no longer exists… much less the one he would have been promoted to. Entire departments may have been laid off.

In this case, the veteran may have trouble enforcing USERRA. USERRA’s protections are not unlimited. Employers are not required to create a job that no longer exists for the veteran.

Reentry Time Frames

USERRA protects you provided you report back to work within a reasonable amount of time after being released from duty. Time limits for returning to work depend on the duration of the orders. The rules are:

  • Service of 1 to 30 days: the beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home.
  • Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty.
  • Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of military duty.

Retaliation

USERRA specifically forbids employers from retaliating against veterans in any way for raising a USERRA complaint.

What To Do if You Are Discriminated Against

If you believe your employer is unlawfully discriminating against you on the basis of your membership in the Guard or Reserves, you have a number of options available to you. You may contact Employer Support of the Guard and Reserves, which offers mediation services and advice. You may also contact your unit’s JAG representative for legal advice. Both options are free to you.

If you want to escalate your claim, you may contact the Department of Justice.

To file a complaint under USERRA, contact your nearest Veterans’ Employment and Training Service (VETS) office, or calling the Department of Labor at 1-866-4USADOL (487-2365).

In the case of Guardsmen not serving on active duty, and cases not involving federal money and federal missions, your state’s Department of Labor.

Statute of Limitations

Under a 2009 law called the Veterans Benefits Improvement Act, there is no statute of limitations on USERRA claims.

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