Members of the U.S. Armed Forces serve and protect our country whenever necessary. They serve on American soil providing disaster relief and in international efforts, conflicts, and wars. Often during those periods of service, our servicemen and women who are members of the Reserves or National Guard take leave from their civilian employers to answer the call, whether the employers are private companies, state agencies, federal agencies, and more.
It is vital that those who protect America are themselves protected when it comes to their non-service-related employment. USERRA, or the Uniformed Services Employment and Reemployment Rights Act, provides just that sort of protection against discrimination related to the individual’s military service and ensures their job and the benefits associated with it are available when they return from active duty.
However, there is a lot of confusion surrounding USERRA and service members’ rights when it comes to this Act. Within this guide, we will address questions concerning military leave, pay and other benefits, and employment protection specific to USERRA.
What Is the Law on Military Leave?
When it comes to military leave, USERRA spells it out, including the rights and protections offered to military service people, as well as the employers’ responsibilities regarding military leave and employment protection. Note that USERRA is an unpaid leave statute, with some exceptions for those working for the federal government in their civilian lives.
Leave – An employer is required by law to provide military service people with unpaid leave for a wide range of activities and situations involving the US Armed Forces, including:
- Active duty leave for service in a conflict, war, or other action, for voluntary or involuntary military duty.
- Annual leave for National Guard or Reserve training, drills, and other short-term military related activities.
- Inactive duty training drills.
- National emergencies.
- Funeral honors.
- Additional training requirements certified by the Service Secretary.
Who Is Covered by USERRA?
While your initial thought might be that USERRA only covers members of the Army, Navy, Air Force or Marines, the truth is that this legislation applies to all branches of the US Armed Forces, including the Coast Guard, the National Guard, and the Reserves. According to the US Department of Labor, “USERRA applies to persons who perform duty, voluntarily or involuntarily, in the ‘uniformed services’, which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard or Air National Guard also gives rise to rights under USERRA.” Additionally, specific types of disaster response work may also fall under the heading of service in the uniformed services.
What Employers Fall Under USERRA?
Almost all organizations in the United States, including federal, state and local agencies, fall under USERRA regardless of size or industry served.
What Types of Employees Fall Under USERRA?
USERRA applies to almost all employment arrangements, including salaried employees, hourly employees, full-time employees, part-time employees, and probationary employees. Your employer cannot discriminate against you based on your military service obligations regardless of your type of employment.
How Does Military Leave Work?
For anyone in the Reserves or the National Guard, there are generally ongoing military obligations with one’s unit, often monthly and a two-week training period as well. In addition, there is always a possibility of being called up for longer periods of active duty to serve in a national emergency, in an armed conflict, in war time, and in other instances. For those employed outside of the military, this will necessitate leaving your civilian position, at least temporarily.
Military leave is the term used to describe this period of time – your employment status remains as it was when you left, and your employer is prohibited from firing you, not rehiring you, or taking any other discriminatory action against you when you are on military leave. However, many people are unsure of how the process works. We will break it down here.
- Notice – You are required to provide at least some notice to your employer concerning your active duty status and orders. USERRA mandates you provide “timely notice”, either verbally or in written form. If you fail to provide any notice, USERRA may not protect you.
- Military Service Documentation – Your employer can only require documentation of military service in periods where your leave extends for more than 30 days and may only demand it upon your reemployment. Generally, providing an employer with a copy of your orders is sufficient, prior to or after completion of your military service. Your employer may not demand that you provide written documentation prior to “approval” of your military leave.
If you cannot provide documentation, or the documentation does not exist, the employer must still reinstate you. If, however, you have documentation or can readily obtain it, whether before or after your periods of service, we recommend that you provide it to the employer and be the “good employee.”
Application for a Leave of Absence – You are only required to provide notification of your orders to your employer. This can be verbal, written. You are not required to apply for a leave of absence, nor are you required to find a replacement or have someone else cover your responsibilities.
Some employers, however, have detailed HR computer systems in which all forms of leave or time off must be coded and entered into the system, so although it is not mandatory for you to “request” or “apply for” leave, we again recommend that you utilize your employer’s system to be the good employee and assist in the employer’s record keeping.
With that said, your employer cannot deny your military leave nor force you to reschedule any military duty obligation. Your employer may ask you if you can reschedule your service obligations and may contact your unit commander to inquire if rescheduling is possible. If it is not, your employer is still required to release you and maintain your employment status as if you had not left.
Returning to Work
After military leave, you must return to work or apply for reemployment in a specific time period as dictated by your leave duration:
30 Days or Less – You must return to work on the next business day following 8 hours of rest and reasonable travel time from the site of your military service.
31 to 180 Days – You must apply for reemployment no later than 14 days after concluding military leave.
Over 180 Days – You must apply for reemployment within 90 days after concluding military leave.
Does My Employer Have to Pay Me While on Military Leave?
No, your employer is under no obligation to pay you while you are on military leave, unless you work for the federal government. All federal employees are entitled to 15 days of paid military leave per year, and in some situations may be entitled to an additional 22 days depending on the nature of service or whether the orders were written during a “time of war or national emergency.”
Recently the United States Court of Appeals for the Federal Circuit held in O’Farrell-vs-Department-Defense, that the “time of war or national emergency” included the Presidential Proclamation 7463 that was declared on September 12, 2001 in the wake of the 9/11 terror attacks, and has been renewed every year since, most recently on September 10, 2018.
The O’Farrell decision has been frequently cited by the Merit Systems Protection Board for the proposition that a service member is entitled to the difference in pay between his federal civilian employment pay and his military pay, if the civilian pay is higher. This is called “differential pay” and is discussed in more detail below.
Note that USERRA does not require a private employer to make up any difference in pay between what that employee would have earned in civilian employment and what they earned in uniformed service.
What Is Differential Pay and How Is Differential Pay Calculated?
Differential pay is compensation from your employer that makes up the difference between what you earn in military service and what you would have earned during the same period in your job. For instance, if you were on active duty for two weeks and earned $1,000 through the military, but would have earned $1,500 in your position, the differential pay from your employer would be $500. Note that this is a simplified example. To actually calculate differential pay for an hourly employee, you would need to follow these steps:
- Calculate pay for both military and regular employment.
- Calculate the number of work hours per month.
- Calculate the hourly rate of pay for each month (for employment).
- Subtract the amount of military pay from the gross pay from the employer.
- Divide the remaining number by the employee’s hourly rate.
Remember that private employers are not required to provide any form of pay, even differential pay. Only those service members employed by federal government agencies are entitled to differential pay while on military leave. If a private sector employer provides compensation for military leave, it should be looked at as generous.
What Is the Employment Mandate for Employers While I’m on Military Leave?
Simply put, a private employer is required to reemploy you at the rate paid at the time military leave began and in a position that is at least similar to the one you had. The law does not require the employer to hold your exact position for you.
Does a Company Have to Hold Your Job if You Join the Military?
An employer is required to reemploy you after you have returned from military duty. This applies even if you joined the military after being hired. However, it does not have to be for the same position. Your employer is required to ensure that you earn the same (or higher) salary as prior to military leave, but if the position was filled while you were on leave, the employer is only required to reemploy you. This may actually work to the advantage of the service member, as an employer cannot reduce your pay, so they may be required to place you in a higher position with better pay. The employer may also choose to:
- Displace an employee hired to perform your job duties while on military leave.
- Move an employee shifted to that position to cover responsibilities back to their previous position or to another position entirely.
- Employers are also required to provide all reasonable efforts in terms of additional training or retraining necessary to ensure they qualify for reemployment.
How Long Does USERRA Protect My Job?
USERRA has a five-year limit on employment protection. However, understand that this is cumulative. Specific types of military leave add up, and once that total reaches five years, an employer is no longer required to reemploy you. Note that there is no difference between voluntary and involuntary leave.
That said, many activities that require you to be absent from your employer do not count toward the five-year cumulative limit. These include the following:
- Inactive duty training
- Annual training
- Involuntary recall or retention for active duty
- Any form of active duty in support of a war, national emergency, or particular operational missions
- Additional training deemed necessary and certified by the Service Secretary
As you can see, some of your military leave may not count toward the five-year total. Also, note that the five-year limit applies to cumulative period of service, not absences from employment. Further, it only applies to the relationship with your current employer, not all employers across your career.
How Does Military Leave Affect My Paid Benefits through My Employer?
USERRA ensures that health coverage is continued during deployment, but it does not apply equally to all deployment durations. For those serving for over 30 days, it is possible to continue with employer-sponsored health care coverage for up to two years. However, you may be required to pay up to 102% of the full premium. For those deployed for under 31 days, your coverage remains the same as if you were still on the job.
Am I Technically a Rehire When I Return from Military Leave?
While your employer may not place you in the specific position you had prior to military leave, your employer cannot consider you a rehire or a new hire on your return. Employers are required to maintain records that show your continued employment even through your leave, which ensures that you do not lose benefits related to employment duration, such as health insurance, paid time off, vacation days, and the like.
The above reflects what has come to be known as the “escalator principle” of USERRA. Simply stated, if we see the service member’s civilian career path as an escalator going up, that rise is not disrupted by their military leave. When the employee returns to work after service, their position on the escalator is where they would be if they never stepped off the escalator, having maintained the same level of employment status with respect to position, salary, and benefits as if they had never left.
With the information we have discussed, your rights and protections under USERRA should be clearer and you should be able to serve your country and your employer with greater peace of mind.