Table of Contents
Table of Contents
What Is USERRA?
The Uniformed Services Employment and Reemployment Rights Act, also known as USERRA, guarantees that an employee who is returning from military service or training has the right to be reemployed at their previous or comparable job with the same benefits.
Why Is USERRA Important?
USERRA is important because it protects the employment rights of both service members and veterans. For example, service members are eligible for re-employment after deployment.
- Re-employment. Under the act, employees who leave their employer to perform service in the uniformed service have a right to be re-employed upon return. However, employees must provide advance notice and have five years or less of cumulative service in the uniformed services during their employment. After returning from duty, they must return to work within a timely manner and must not have been dishonorably discharged.
- Discrimination. Past or present members of the uniformed service, those who have applied for membership in the uniformed service and those who are obligated to serve in the uniformed service have a right to be free from discrimination. Employers cannot deny initial employment, reemployment, retention in employment, a promotion and/or any other type of employment practice.
Who Does USERRA Cover?
As defined by U.S. code 38 U.S.C. Section 4303, 13 & 16, all those in both the “service in the uniformed services” and “uniformed services” are covered by USERRA. These are explained in greater detail below.
Service in the Uniformed Services
A few examples of services in the uniformed services consist of inactive duty, initial active duty for training and inactive duty training.
- Active duty. This refers to individuals who currently work full-time for the military. They may live on a military base and can be deployed at any time.
- Initial active duty for training. Initial active duty for training is the first period of active duty training, normally a period of six months. This type of training is required for those entering the Selected Reserves.
- Inactive duty training. This is training or other duties performed by members who are not on active duty, or are part of the reserve component.
Uniformed Services consists of any member of the Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, Commissioned Corps of the Public Health Service and any other category of persons designated by the president in time of war or emergency.
How Does USERRA Work?
USERRA is a federal law that protects military service members and veterans from employment discrimination. Under the act, organizations cannot deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual based on their military service. Furthermore, companies cannot retaliate against an employee by taking adverse employment action due to military leave.
The act protects service members from disadvantages in their civilian careers because of their military service, provides for prompt re-employment upon return from duty, and protects service members from being discriminated against by employers because of past, present or future military service.
What Are the Responsibilities of Employers Regarding USERRA?
This section identifies the responsibilities of employers when administering USERRA.
Be sure to post a notice of USERRA rights for military employment and re-employment in the workplace in a conspicuous place where it is easily visible to all employees.
Health Care Coverage
Any employee who is currently covered under your group health insurance plan must be continued. It is the organization’s responsibility to make arrangements to continue the coverage. Employees may elect to continue with their coverage for up to 24 months or for the period of military service, whichever is shorter. For time away that is less than 31 days, the employee is entitled to coverage without a break.
Those enrolled in a flexible spending account are permitted to receive distributions from unused funds without penalty.
USERRA doesn’t require employers to pay military leave for those who are nonexempt; however, you will want to consider exempt salary basis rules under the Fair Labor Standards Act (FLSA) for exempt employees who work partially during the workweek due to military leave. Employers are not required to pay exempt employees when no work is performed during a workweek.
Pay close attention to employees who take military leave intermittently during the workweek, because the FLSA states that employers are not permitted to deduct salaries for exempt employees who are on military leave. Doing so violates the salary basis test for exempt employees.
Organizations may not require employees who are on military leave to use vacation benefits such as paid time off (PTO). If your policy allows those who are on leave to accrue PTO, you must allow those on military leave to do the same.
Pensions benefits must continue to accrue. However, you’re not required to continue contributions to a 401(k) plan.
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Wendy is an HR professional with over 10 years of HR experience in education and health care, both in the private and non-profit sector. She is the owner of KHRServices, a full service HR management agency. She is also SHRM and HRCI certified, serves as a HRCI Ambassador, and voted 2021 Most Inclusive HR Influencer.