Frequently Asked Questions
- What is USERRA, the Uniformed Services Employment & Reemployment Rights Act?
The Uniformed Services Employment & Reemployment Rights Act is the federal law that protects servicemembers and veterans against discrimination based on their military service or status, requires employers to reemploy servicemembers who have taken military leave, and provides other important rights and benefits to those who have served in the Armed Forces. Congress passed USERRA in 1994 to strengthen the employment and reemployment rights that veterans and servicemembers have had since the 1940s.
- What is the purpose of USERRA?
One of the primary purposes of USERRA is to encourage non-career service in the Armed Forces through participation in the Guard and Reserves and eliminate or reduce the disadvantages that servicemembers face in their civilian careers due to such military service. Another purpose is to prohibit discrimination based on service in the military.
- Who is protected by USERRA?
You are protected by USERRA if you have served, are currently serving, or plan to serve in the Armed Forces, including in the National Guard, Reserves or an active component, as well as other uniformed services like the Public Health Service. Your service is protected by USERRA whether or not it is voluntary or involuntary, both in peacetime or in war, and it includes military training.
- Which employers does USERRA apply to?
USERRA applies to virtually all employers of all sizes, including private sector employers, state and local governments, the federal government, and even members and committees of Congress.
- What rights do servicemembers and veterans have under USERRA?
- USERRA prohibits discrimination against servicemembers and veterans based on their military service or status, including discrimination in hiring, promotions, termination, pay, and benefits.
- USERRA gives servicemembers a right to be reemployed by their civilian employers when they take leave from their employers to serve in the military and return from serving in the military—in the same position or, in some cases, in a better position than when they began their military service—so long as they give notice of their military duty to their civilian employer, request reemployment on a timely basis after serving, are not dishonorably discharged, and have not taken more than five years of military leave from that particular employer (though many types of service are exempted from the five year limit).
- USERRA requires employers to provide pension credits or retirement contributions to employees who take leave to serve in the Armed Forces and return to their employers after their military service. These contributions are required so that servicemembers’ retirement security is not undermined by their service in the Armed Forces.
- USERRA prohibits retaliating against any person for taking action to exercise or enforce a right under USERRA or for complaining about a violation of USERRA.
- USERRA requires employers to continue to pay for their employees’ health insurance benefits for a period of military service that lasts fewer than 31 days. If the period of military service is 31 days or greater, the employer does not have to pay for the health insurance benefits but the employee can remain on the same health insurance plan for at least 24 months if he or she pays up to 102% of the premium of the health insurance plan.
- Other employee benefits. Certain employee benefits that are not tied to an employee’s seniority must be continued during an employee’s military service if the employer provides the same benefits to similarly situated employees who take leave from the employer. For example, if employees accrue vacation leave or sick leave when they take leave from the employer, the employer must provide the same accrued vacation leave or sick leave to an employee who is engaged in military service.
- How do I enforce my rights under USERRA?
You have several options to enforce your rights under USERRA. They include:
- Hiring a private law firm that has experience with USERRA—like Outten & Golden LLP—to represent you, including by filing a complaint in federal or state court, or by negotiating a resolution with your employer. You can file an individual action or a class action.
- Filing a complaint with the U.S. Department of Labor on your own or with the help of a lawyer. The Department of Labor will investigate your complaint. If the complaint is not settled and the government believes that it has merit, the Department of Justice may choose to represent you in enforcing the law.
- Seeking mediation with the Employer Support for the Guard and Reserve, a program within the Department of Defense.
- Can my employer discriminate against me based on my military service or status?
No. Discrimination is unlawful under USERRA. An employer who discriminates against you based on your status in the military or your past, current, or future service in the military is breaking the law. The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages.
- Can an employer retaliate against me for exercising or enforcing my USERRA rights?
No. Retaliation is unlawful under USERRA. Any employer, including your current or future employer, who discriminates against you because you took any action to exercise or enforce your USERRA rights is breaking the law, and you could bring a USERRA lawsuit against the employer for retaliation.
- What are the requirements to be reemployed after taking military leave?
There are several basic requirements that a servicemember must meet before the employer can be required to reemploy the servicemember. They are the following:
- The employer received advance notice of the employee’s uniformed service, either orally or in writing.
- The employee has served for five years or less in the uniformed services during the time period in which the employee worked for the specific employer, but there are many exceptions for types of service that do not count towards the five year limit.
- The employee applies for reemployment or returns to work on a timely basis.For example, if the employee’s service is between 31 and 181 days, he or she must apply for reemployment no later than 14 days after completing the period of service.An employee who served for more than 180 days must apply for reemployment within 90 days after completing the period of service.
- The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions.
- How should my pension credits or retirement contributions be calculated?
If you take military leave from an employer and are reemployed, you have a right to receive a “make-up contribution” so that you receive the same credit or compensation that you would have received had you continued to work for your employer without a break to serve in the military. This rule applies to traditional defined benefit plans, defined contribution plans (such as 401(k) plans), and other types of plans.
- If it is reasonably certain how much compensation you would have made during the period of military service, then you should receive pension credits or retirement contributions in the same exact manner and based on the same compensation as you ordinarily would.
- A special rule applies when it is not reasonably certain how much compensation you would have made during the period of military service, such as employees whose hours or wage rates vary from week to week or month to month (including because they receive overtime pay or other forms of premium pay), or employees who are paid in whole or in part on commission.Under this special rule, the compensation that is used to calculate your pension or retirement contributions is based on the employee’s average compensation from the 12 month period before his or her military service began (or a lesser period if the employee had not worked for 12 months).
- Can I file a class action under USERRA?
Yes. Like many other federal and state laws, you can file a class action to enforce your rights under USERRA and the rights of other similarly situated employees who work or previously worked for the same employer. Generally, about 40 workers need to be affected by the policy or practice that violates USERRA to maintain a class action, but it is possible to have a class action with fewer than 40 workers.
- Is there a time limit to file a lawsuit under USERRA?
There is currently no time limit for filing a lawsuit or a complaint under USERRA. In 2008, Congress clarified that there is no time limit on USERRA suits. However, because some courts believe that USERRA previously was not clear about the existence of a time limit on filing a suit, some courts may consider claims to be untimely if the events occurred before October 10, 2004 and a lawsuit was not filed within four years of the events that violated USERRA.
- Can state law or an employment agreement take away or cut down my rights under USERRA?
No. USERRA expressly prohibits and voids any state law, agreement (including a collective bargaining agreement), or employer policy that takes away or limits your rights under USERRA. However, some courts have erroneously concluded that USERRA’s prohibition on the waiver of USERRA rights does not apply to certain procedural rights.
- If I am reemployed, what position am I entitled to receive when I finish my military service?
When a person returns from military service, he or she is entitled to be reemployed in the position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. This position is called the “escalator” position, because the employee is entitled to ride the escalator like other employees who remained working for the employer during the employee’s military service. The escalator might result in a promotion or a demotion depending on the intervening events. For example, if an employee would generally be entitled to a promotion after a certain number of years of service, and the employee would have attained that number of years of service had he or she continued working for the employer during the period of military service, he or she would be entitled to the promotion when he or she returns from military service.
- If I experience an injury or have a disability related to my military service, does my employer have to accommodate that disability?
Yes. If you are injured or become disabled during your period of military service, and you meet the requirements to be reemployed (see above), your employer must reemploy you in any job that you can do with or without a reasonable accommodation and with appropriate training or retraining. This means that you do not have to be able to perform the job that you had before you went on military duty.
- Are there state or local laws that provide similar rights to servicemembers and veterans?
Yes. Many state or local laws provide protections to servicemembers and veterans. Many of these rights are found in state or local laws that prohibit employment discrimination based on other protected categories, such as race, sex, color, religion, national origin, disability, and sexual orientation.