The Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which applies to virtually all employees regardless of size, protects the right of an employee returning from military service or training to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits.
These reemployment rights extend to employees who have been absent from work due to “service in the uniformed services” which includes—
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty
- Absences for a fitness exam for duty
- Funeral honors performed by National Guard or Reserve members
- Duty performed by intermittent employees of the National Disaster Medical System when activated for a public health emergency and approved training to prepare for such service
The “uniformed services” includes—
- Army, Navy, Marine Corps, Air Force and Coast Guard
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve
- Army National Guard and Air National Guard
- Commissioned Corps of the Public Health Service
- Any other category of persons designated by the President in time of war or emergency
Military employees are entitled to reemployment provided they satisfy all of the following conditions—
- Provide the employer with advance written or verbal notice of their service;
- Have 5 years or less of cumulative service in the uniformed services while working for the particular employer;
- Return to work or apply for reemployment in a timely manner following the conclusion of service; and
- Have not been separated from service with a disqualifying discharge or under other than honorable conditions
Importantly—eligible employees must be restored to the job and benefits they would have attained if they were not absent due to military service or, in some cases, a comparable job. This is commonly referred to as the “Escalator Principle”—meaning the returning employee gets to “ride the escalator” up to the salary or promotion level s/he would have achieved had s/he been present at work during the term of service. This also means that depending on your facts and circumstances—employees out on military leave might be entitled to paid leave from your company.
USERRA also protects past and present members of the uniformed services from discrimination and retaliation in hiring, retention, promotion and any other benefit of employment because of their military status.
Military employees who leave their jobs to perform military service also have the right to elect to continue their existing employer-based health plan coverage for themselves and their dependents for up to 24 months while in the military.
Employers are required to provide covered employees with a notice of the rights, benefits and obligations provided by USERRA. This requirement can be satisfied by either posting or providing each employee with a copy of the following notice from the U.S. Department of Labor.
Meredith S. Campbell
Chair Employment and Labor Group
Co-Chair Corporate Investigations, Governance & Risk Management
Email mcampbell@shulmanrogers.com T(301)255-0550
