USERRA — How This Law Affects You

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Whether you’re an employee or an employer, you need to know about the Uniformed Services Employment and Reemployment Rights Act (USERRA).  If you’re planning on going on military service leave — or have employees that might be called away — there are certain responsibilities you have under this law.

Who created USERRA?

It’s a joint-effort between the Department of Defense, the Federal Office of Personnel Management, and the Department of Labor.  If you run a business — no matter how big or small — you have to comply with USERRA.

What does the law do?

Among other protections, thanks to USERRA, people who go on military service leave can return to their jobs without losing any seniority, status, or pay.

How do you make sure you’re following the law?

If you want to comply with USERRA, you’ll need to understand these 9 areas:

1. Discrimination

Thanks to USERRA, it is illegal for employers to discriminate against their employees because of their past, present, or future military leave status.  This protection extends to hiring, promotions, reemployment, benefits, and termination.  In fact, a certain amount of time has to pass — once the employee returns from military service leave — before he can be terminated for cause.

Additionally, employers cannot retaliate against their employees for filing a complaint under USERRA, taking part in a USERRA investigation, or exercising any of their USERRA rights.

All of this protection doesn’t just apply to current military members, though.  USERRA also offers legal protection to veterans and employees who are applying to join any branch of the military.

2. Notice of military leave

Unless there is a military necessity, employees are required to give their employers notice that they are being called up for military duty.  Since each situation is different, there is no set amount of notice that needs to be given.  However, USERRA recommends that employees give notice in writing, 30 days before they have to leave.

3. Maximum military leave

In most cases, USERRA rights only apply to members of the military who spend less than five years deployed — and under USERRA, military service leave is calculated cumulatively.

However, if an employee has to be deployed for longer than a total of five years — because of a national emergency, a war, or in order to comply with his initial military obligations — this deadline can be extended.

4. Returning to work

Under USERRA, members of the military have to return to their old job within a certain time frame in order to keep it.  Depending on how long the employee was deployed, he is required to report back to work within either 14 or 90 days after his military service ends.

The only time one of these deadlines does not apply is if the military member was injured (or had an old injury re-aggravated) during his leave.

5. Reemployment Rights

In virtually all cases, employers have to give employees their old jobs back — or, put them in the position they would have been in had they not gone on military leave.

6. Reasonable accommodation of disabilities

Under USERRA, employers have to do everything within reason to accommodate employees that return from military service leave with disabilities.  That way, these employees can (hopefully) return to their old jobs.  The only way employers can get around this requirement is to show that accommodating the military member would put an undue hardship on the company.

7. Leave benefits

Thanks to USERRA, employees will continue to accrue FMLA leave time while they are on military service leave.

But those aren’t the only benefits USERRA covers.

In fact, under USERRA, employees can opt to use their vacation time while they’re on military service leave — so that their entire deployment isn’t unpaid.  However, employers cannot force employees to use their accrued vacation time for military leave.

8. Disqualifying service

In some cases, military members may not have the benefit of their USERRA rights.  For example, if an employee is dishonorably discharged or discharged for bad conduct, he will lose his USERRA protection.

9. Notification of USERRA rights

It isn’t enough for employers to understand USERRA.  They also have to make sure their employees understand the law, too.  All employers — whether they’re public or private companies — are required to give their employees information regarding their USERRA rights.  A great way to do it is to put up posters around the popular spots in the office — like in the break room or near the bathrooms.  Luckily, Compliance Poster Company offers English, Spanish and bilingual Poly Vinyl posters that explain all of the USERRA details in an easy-to-understand way.