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The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to re-employ a person returning from duty in the uniformed services if he or she meets five criteria:

  1. The person must have held a civilian job.
  2. He or she must have given notice to the employer upon leaving the job for duty in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable.
  3. The cumulative period of service must not have exceeded five years.
  4. The person must not have been released from service under dishonorable or other punitive conditions.
  5. He or she must have reported back to the civilian job in a timely manner or submitted a timely application for re-employment.

USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills and annually scheduled active duty for training.

The law requires employers to provide to service members a notice of their rights, benefits and obligations. Employees’ restoration rights are based on the duration of military service rather than the type of military duty performed (e.g., active duty for training or inactive duty), except for fitness-for-service examinations.

The time limits for returning to work are:

  • 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 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 re-employment 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 re-employment 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 those who are hospitalized or convalescing. 

USERRA guarantees pension plan benefits that accrued during military service, regardless of whether it’s a defined-benefit or a defined-contribution plan.

Under the law, service members activated for duty on or after Dec. 10, 2004, may elect to extend their employer-sponsored health coverage for up to 24 months. (Those activated prior to that date may elect to extend coverage for up to 18 months.) Employers may require these individuals to pay up to 102 percent of total premiums for the elective coverage.

In addition, USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations or an intent to serve. Two cases of note:

The city of Margate, N.J., paid $89,649 to a police officer who sued for harassment after he was called up to active service in the U.S. Army Reserve. The officer, who had served in the Reserves for 24 years and on the Margate police force for 15 years, had never had trouble obtaining leave to attend military training in the past. But when he was called to active service, his supervisors denied his requests for leave, changed his work assignments and reduced his pay. The officer was deployed to Iraq and served for a year, and is now back on the Margate police force.

The city of Port St. Lucie, Fla., was ordered to reinstate a demoted meter reader and pay her $60,000 to settle a race discrimination and USERRA lawsuit. The meter reader, a black woman, returned from two years of active Army duty in 2005 to find a white man had taken her job as supervisor, while she was demoted to crew leader. The woman was earning $19.56 per hour as a crew leader, while her replacement, hired 4 and a half years after her, earned $24.32. The settlement restored her to the same position, salary and benefits as the man who replaced her.

For more information on how to meet your obligations under USERRA, visit www.dol.gov/vets/programs/userra.

Dealing with returning disabled soldiers

A lesser-known USERRA provision deals with how employers must handle soldiers who return from active duty with injuries or other disabilities.

USERRA offers broader protections than the ADA and applies to all employers, while the ADA applies only to employers with 15 or more workers. Plus, USERRA offers returning disabled soldiers more generous rights.

Specifically, employees who were injured on active duty have up to two years after their return to claim reinstatement to their jobs. Plus, if returning disabled military personnel can’t perform their former jobs, you must offer training and accommodations to help them return to them, or make every effort to qualify them for a position of equivalent seniority, status and pay. If they still can’t meet position requirements, USERRA demands that you find a position they can perform that is as close as possible to their pre-deployment pay, status and benefits.

More than 150,000 veterans of the Iraq War are receiving disability benefits, with high incidences of brain injuries, psychological trauma and multiple amputations.