Uniformed Services Employment and Re-employment Rights Act (USERRA)
Serving in the military can be an amazing a resume booster, but some employers may quickly lose patience with you having to leave work to handle your military duties.
Your Rights
USERRA provides the right to:
Reemployment;
Elevator Principle;
Health Insurance Protection; and
Discrimination Protection.
Reemployment
You are entitled to return to the job at the same pay and benefits so long as you:
Had to step away from your job due to service in the U.S. Uniformed Services (see FAQ for full list),
Gave advanced warning to your employer (within reason - if you just got told ‘boots on now’, you obviously cannot give more notice than you were given).
This notice can be given verbally or written. However, it IS BEST to provide a written notice.
Used USERRA for a period of absences, no more than 5 years in total (see FAQ for list of exceptions).
Return to work within a timely manner after end of service (see FAQ for details).
Situations an Employer May Deny Reemployment
One of the above did not happen.
Character of discharge for the period of service is Other than Honorable or worse;
Your job is seasonal in nature or is brief and nonrecurring period of time;
The employer's circumstances have changed so that reemployment is impossible or unreasonable (such as layoffs which would have included the Veteran anyway); or
Reemployment would impose an undue hardship on the employer, (such as when a person is not qualified for a position due to a disability or other bona fide reason AND the employer has made reasonable efforts to help the person become qualified). IF the employer is unable to accommodate you they MUST offer:
A position that is equivalent in seniority, status, and pay to the escalator position; or
A position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case, in terms of seniority, status, and pay.
Elevator Principle
Your absence due to your service CANNOT be held against you or hold you back meaning:
Promotions:
Generally, an employer must allow you to bid or apply for a promotion that you would have bid or applied for, but couldn’t due to your service absence. As a general rule, if a returning employee would have, with reasonable certainty, been promoted but for his or her absence for uniformed service, then the employee should receive the promotion on return. The fact that another employee may have been selected and is currently occupying the position DOES NOT PREVENT you from placement in the position. (20 CFR 1002.193)
If specific testing/skill is required for the promotion an employer must generally allow you to make up the test AND allow time for training, studying, preparations for it. (20 CFR 1002.193)
Pay and Raises:
If you would have reasonably certainly gotten pay raises (to include merit based) or bonuses during your absence, the employer is generally required to pay you at the higher rate on your return or allow you to receive the bonus. (20 CFR 1002.193)
USERRA does NOT require your employer pay you during your absence. If you have paid time off, USERRA DOES require your employer allow you to use it (unless the employer puts ALL employees into a no-pay status). (20 CFR 1002.153)
Pension:
Participation, vesting and accrual of benefits CANNOT be negatively impacted.
Leave/Vacation Accrual:
If your employer grants employees more leave based upon their time employed, the employer MUST treat the absence due to service as time employed by the employer without a break. (20 CFR 1002.150)
This does NOT mean you are entitled to leave you would have otherwise earned (unless your employer does this for non-Veterans who are furloughed, leave of absence, etc.)
Health Insurance Protection
You have the right to elect to remain on the your existing employer-based health plan coverage for up to 2 years while serving. After returning to the job and being reemployed, you have the right to be immediately reinstated in the employer-based health plan, if you had elected to drop the coverage.
IMPORTANT NOTES:
Your employer CAN require you pay the cost of this coverage:
Absence UNDER 31 days - CANNOT be charged more than your normal premiums.
Absence 31 days or more - CAN be charged a maximum 102% of your plan’s full premium costs (both you and your employer’s share with a 2% admin fee).
Discrimination Protection
Employers may NOT deny original employment, reemployment, retention of employment, promotion, or any benefits due to a person’s military service
Enforcement
Federal courts are charged with enforcement of your rights. If the court finds the violation is wilful the court may DOUBLE any damages you suffered (loss of pay and other benefits).
WIP………….
Frequently Asked Questions
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These rights also extend to:
Active Duty members in all branches to include the Coast Guard,
Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA),
Commissioned Corps of the Public Health Service (PHS),
National Disaster Medical System,
System members of the National Urban Search and Rescue Response System DURING a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, and
Intermittent personnel who are appointed into Federal Emergency Management Agency service under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for such service.
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Your original contract (Active Duty - not including IRR) was for a period longer than 5 years.
You started on orders while under 5 years and you could not get released before the 5 years.
Ordered to or retained on Active Duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by the Secretary concerned.
Service performed to fulfill periodic Guard and Reserve training requirements and includes service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for the employee’s professional development, or to complete skill training or retraining. This INCLUDES weekend drills and annual training.
Air Force Reserve Five Year Policy
Coast Guard Reserve Five Year Policy
Ordered to or retained on Active Duty under the following circumstances:
Involuntary active duty of a military retiree;
Involuntary Active Duty in wartime;
Retention on Active Duty while in captive status;
Involuntary Active Duty during a national emergency;
Involuntary Active Duty for an operational mission, involuntary retention on active duty of a critical person during time of crisis or other specific conditions; or
Involuntary Active Duty by the Coast Guard Reserve for natural or man-made disasters.
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Depending on the length of service you must return no later than the following - or you lose your right to reemployment:
1-30 days of service: Next scheduled work day AFTER allowing for travel time AND 8 hours of rest.
31-180 days of service: 14 days.
181+ days: 90 days. (20 CFR 1002.115)
Alternatively, if the Veteran requires hospitalization or convalescence for a disability incurred or aggravated from their period of service, the deadline can be extended 2 YEARS. This 2 years can be pushed further to accommodate a circumstance beyond an individual's control that would make reporting within the two-year period impossible or unreasonable. (20 CFR 1002.116)
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Yes.
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If you are working for an American company - yes; unless there is a law in the foreign country which says otherwise.
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Not legally.
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Your employer must make it so it would be as if you had never left the job meaning: participation, vesting and accrual of benefits are NOT negatively impacted.
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Barring some contractual or other agreement, USERRA does NOT give you a right to pay from your employer during your absence.
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YES! There is NO exceptions for size of an employer.
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