Employment Protection – Armed Services

When employing or considering the employment of a member of the Armed Services, it is imperative that employers be aware of the strong federal protections put in place for such individuals through the Uniformed Services Employment and Reemployment Rights Act.
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) was enacted in 1994 to ensure that members of the military – particular members of the National Guard or Reserve forces do not face employment discrimination or loss of employment due to their military service. Specifically, USERRA provides as follows:

  • A potential employer cannot refuse to hire a member of the armed forces, such as a reservist, due to the fact that their future service obligations may conflict with their employment.
  • After an employee is hired, an employer cannot take any negative action or retaliate against the service member on the basis of their service obligations.
  • If an employee is deployed, an employer must reemploy them upon completion of their service if the following conditions are met:
    • The person must have been absent from a civilian job on account of service in the uniformed services;
    • The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
    • The cumulative period of military service with that employer must not have exceeded five years;
    • The person must not have been released from service under dishonorable or other punitive conditions; and
    • The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.[1]
  • Returning employees must return to work within a set period of time in order to avail themselves of USERRA protection. Specifically:
    • Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
    • 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible
    • 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
    • Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.[2]
  • When reemploying the service member, the employer is required to employ the member at the same status they would have achieved had their service not intervened. This is known as the “escalator principle.”[3] In addition to accounting for possible raises or promotions that may have occurred, a service member can also be laid off if their position was eliminated in the interim.
  • Once an employee has been reemployed, and their service was more than thirty (30) days there are restrictions on an employer’s ability to terminate them, other than for cause:
    • 180 days after the employee’s date of reemployment if his or her  most recent period of  uniformed service was more than 30 days but less than 181 days; or
    • One year after the date of reemployment if the employee’s most recent period of uniformed service was more than 180 days.[4]
  • Employers are not required to reemploy service members whose service ended in any of the following manners:
    • Separated from uniformed service with a dishonorable or bad conduct discharge;
    • Separated from uniformed service under other than honorable conditions, as characterized by regulations of the uniformed service;
    • A commissioned officer dismissed by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the President;
    • A commissioned officer dropped from the rolls due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or, a sentence to confinement in a Federal or State penitentiary or correctional institution.[5]

USERRA contains additional provisions addressing employee benefit plans, such as the accrual of retirement, etc.
If you are a member of the uniformed services and want to determine if you are eligible for USERRA protection, go here.
If you are a member of the uniformed services and belief action has been taken against you in violation of USERRA, go here.

[1] See https://www.dol.gov/vets/programs/userra/aboutuserra.htm#yourrights
[2] Ibid. 
[3] See https://www.shrm.org/legalissues/federalresources/pages/escalatorprovision.aspx 
[4] See https://www.esgr.mil/USERRA/Frequently-Asked-Questions.aspx
[5] Ibid.