What is USERRA?
How does USERRA protect you from discrimination?
Who is eligible for reemployment under USERRA?
What requirements must be satisfied for reemployment?
Does USERRA legally protect you from employer retaliation?
Are your pension and/or retirement contributions protected by USERRA?
Are you required to submit documentation to your employer in connection with the application for reemployment?
What is USERRA?
Enacted in 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members’ reemployment rights when they are returning from a period of duty in the uniformed services. This includes members of the Army, Navy, Air Force, Marines, and Coast Guard, along with those called up from the reserves or National Guard. USERRA prohibits employers from discriminating against employees based on military service or obligation. It also strengthens and expands the employment and reemployment rights of all uniformed service members.
Without USERRA, Reserve and National Guard personnel would be forced to choose between their service to their country and their work for their employer. Pilot Law represents the alleged victims of discrimination against military personnel by non-military employers in order to protect individual’s rights and ensure the continued access of the military to these highly trained and skilled men and women.
How does USERRA protect you from discrimination?
If you are a past or present member of the uniformed service, have applied for membership in the uniformed service or are obligated to serve in the uniformed service, then an employer may not deny you initial employment, reemployment, retention in employment, promotions or any benefit of employment. “Benefit of employment” now includes the right to be free from a harassing or hostile work environment based on your military service.
Who is eligible for reemployment under USERRA?
Reemployment rights extend to persons who have been absent from their job because of “service in the uniformed services,” meaning the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
- Active duty
- Active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty.
- Absence from work for an examination to determine a person’s fitness for any of the above types of duty.
- Funeral honors duty performed by National Guard or reserve members.
- Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Homeland Security – Emergency Preparedness and Response Directorate (FEMA), when activated for a public health emergency, and approved training to prepare for such service.
What requirements must be satisfied for reemployment?
You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and
- You ensure your employer receives advance written or verbal notice of your service;
- You perform five years or less of cumulative service with the uniformed service while you’re with that particular 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 a person, through no fault of his or her own, is unable to obtain a release within the five-year limit.
- Required training for reservists and National Guard members.
- Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations.
- Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress.
- Active duty (other than for training) by volunteers supporting “operational missions,” for which Selected Reservists have been ordered to active duty without their consent.
- Service by volunteers who are ordered to active duty in support of a “critical mission or requirement” in times other than war or national emergencies and when no involuntary call up is in effect.
- Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States.
- You return to work or apply for reemployment in a timely manner after your service has ended; and
- You have not been separated from service with a disqualifying discharge or other less than honorable conditions
Does USERRA legally protect you from employer retaliation?
Yes. An employer may not retaliate against anyone who is helping to enforce USERRA rights, including testifying or making a statement in connection with a legal proceeding under USERRA, even if that person has no service connection. This means that under USERRA even individuals who are not in the military are legally protected against any action taken against them if they testify or speak on behalf of their military co-workers.
Are your pension and/or retirement contributions protected by USERRA?
Yes. If you were absent from your civilian employment for military service and are a member of an employee pension benefit program, your absence for military leave must be counted as service with your employer for the purposes of contributions to your pension benefit program. If the program requires you to contribute an amount and your employer to “match” that amount, you must make your contributions first then the employer must contribute its share as if you did not have a break in your civilian employment. If it is a plan where the employer contributes but the employee does not, the employer must make up all contributions after the employee is reemployed as if the employee had never left the civilian job.
Are you required to submit documentation to your employer in connection with the application for reemployment?
Yes, if you were away from your civilian job for more than 30 days, the employer may request that you provide documentation that your reemployment application was timely, that your military service did not exceed five years (subject to the exceptions listed above), and that your release from military service was honorable. Documents that satisfy the requirements of USERRA include:
- 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. Please note that not all of these documents are available or necessary in every instance to establish reemployment eligibility.