USERRA Protections: Frequently Asked Questions

Navigating civilian employment while fulfilling military obligations can create complex legal and administrative challenges. Enacted in 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes sweeping USERRA protections to ensure that service members, including National Guard members and Reservists are not financially or professionally penalized for answering the call to duty. Understanding how federal USERRA protections apply to real-world employment scenarios is important to safeguarding your civilian career.

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How Does USERRA Protect You from Discrimination?

If you are a past or present member of the uniformed services, have applied for membership, or are obligated to serve, an employer may not deny you initial employment, reemployment, retention in employment, promotions, or any benefit of employment based on your military ties.

Under federal law, these USERRA protections against discrimination prohibit employers from creating or permitting a harassing or hostile work environment based on your military service obligations.

Who Is Eligible for Reemployment Under USERRA?

To qualify for comprehensive USERRA job protection and reemployment rights, you must be a member of the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, Reserve components, or Public Health Service and others.

In addition, your absence must be necessitated by qualifying military service, including:

Active duty and active duty for training
Initial active duty for training and inactive duty training (weekend drills)
Full-time National Guard duty
Absence for an examination to determine fitness for duty
Funeral honors duty performed by Guard or Reserve members

What Requirements Must Be Satisfied for Reemployment?

To preserve your statutory USERRA job protection and successfully claim your right to reemployment with your employer, you must satisfy four basic criteria:

1. Advance Notice

You ensured your employer received advance verbal or written notice of your military service.

2. Five-Year Limit

You performed five years or less of cumulative service while employed with that specific employer. There are, however, eight categories of service that are exempt from the five-year limitation:
Service required beyond five years to complete an initial period of obligated service.
Service from which you are unable to obtain a release through no fault of your own within the five-year limit.
Required training for reservists and National Guard members (inactive duty training and annual training).
Service under an involuntary order to active duty, or retention on active duty, during domestic emergencies or national security situations.
Service under an order to active duty (other than for training) because of a war or national emergency declared by the President or Congress.
Service by volunteers ordered to active duty in support of a “critical mission or requirement" when no involuntary call-up is in effect.
Federal service by National Guard members called into action by the President to suppress an insurrection, repel an invasion, or execute federal laws.
Service under orders issued during wartime, national emergency, or special operational requirements certified by the Service Secretary.

3. Timely Return

You returned to work or submitted a timely application for reemployment after your service has concluded.

4. Honorable Discharge

You were not separated from military service with a disqualifying discharge or under less than honorable conditions.

Does USERRA Legally Protect You from Employer Retaliation?

Yes. Federal law strictly prohibits employers from taking adverse actions or retaliating against anyone who helps enforce your statutory rights.

These anti-retaliation USERRA protections extend not only to military members, but to any individual (including co-workers) who files a complaint, testifies, assists, or makes a statement in connection with a legal proceeding under USERRA.

Are Your Pension and Retirement Contributions Protected?

Yes. USERRA ensures that taking leave for military service does not derail your long-term retirement security. Upon reemployment, your period of military service must be treated as continuous service for pension vesting and benefit accrual purposes.

For defined contribution or pension plans where the employer makes contributions, the employer must make up all missed contributions after you return to work as if you had never left your job. For employer/employee plans, the employee must make their contributions then the employer must make its contributions.

Are You Required to Submit Documentation for Reemployment?

Yes, if your period of military service exceeded 30 days. Your employer has the right to request documentation establishing that your application is timely, that you have not exceeded the five-year cumulative limit, and that your service was completed under honorable conditions.

You cannot be forced or required to provide written documentation of military service in advance of that service, and we are very familiar with how to prosecute employers who do this.

Acceptable documentation includes:

DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty
Copy of duty orders prepared by the facility where the orders were fulfilled, carrying an endorsement indicating completion of the described service
Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority
Certificate of completion from military training school
Discharge certificate showing character of service
Copy of extracts from payroll documents showing periods of service
Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or federal activation

The types of documents necessary to establish eligibility for reemployment will vary from case to case. However, an employer cannot delay or deny your immediate reemployment simply because official military documentation is not readily available at the time of your application.

How Does Pilot Law Help Enforce Your Rights?

When employers violate federal law, by denying initial employment or reemployment, failing to promote, demoting or otherwise discriminating against Guard or Reserve members, Pilot Law can provide legal representation.

We handle USERRA claims in state and federal courts nationwide, as well as the Merit Systems Protection Board (MSPB), advocating for service members seeking back pay, job reinstatement, denied promotions and the protection of many other rights.

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