USERRA OVERVIEW

Uniformed Services Employment &

Reemployment Rights Act (USERRA)38 U.S.C. §§ 4301-4335

20 C.F.R. §§ 1002.1-1002.314

The views and opinions expressed in this document and in the training are mine alone and do not necessarily reflect the

official policy or position of any organization with which I am affiliated. They are also for information purposes only and

are not legal advice.

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USERRA

Cynthia H. Norwood

Senior Assistant Attorney General

Counsel to the Department of Veterans Services

and DOD ESGR Ombudsman Director

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Learning Objectives

As a result of this training, employers will become

acquainted with:

•The Uniformed Services Employment &

Reemployment Rights Act (USERRA)

•Servicemembers’ rights

•The Servicemember and employer responsibilities

pursuant to USERRA

•Common USERRA violations

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Why Is This Important to Know?

• As a current or potential employer of Veterans, you need

to know the legal rights of the Veterans, Guardsmen, or

Reservists you hire, including:

– Right to reemployment

– Right to be free of discrimination or retaliation

– Right to receive health insurance and other benefits

protection

– Violations of this law can have negative legal and

financial implications for your organization

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USERRA

• Federal Law established 1994

– USERRA, 38 U.S.C. § 4301 – 4335

• Statutory Authority

– Investigations – Dept. of Labor

– Legal Action – Dept. of Justice

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USERRA

• Primary purpose: Protect employment

rights of persons who also serve in the

uniformed service

– Employees who engage in military service are to

receive the same level of seniority, status, pay, and

benefits that would have accrued, but for the

military service.

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Notice of Rights & Duties

• Every employer must provide to “persons

entitled to rights and benefits” a “notice of

the rights, benefits, and obligations of those

covered”

• Posting satisfies requirement

• Secretary of DOL specifies content

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USERRA:

Servicemember Responsibilities

Have left a civilian job for military obligations

Provide advance notice to employer of military service (preferably in writing, but not required)

Received a qualifying military separation (served honorably)

Must not be gone over 5 years cumulative (exceptions)

Timely notice to return to work

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Timely Notice

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Timely notice to return to work:

Service Return to Work Within 1-30 days next shift after safe travel to

residence plus 8 hours of rest 31-180 days 14 days 181 + days 90 daysDisabled up to 2 years

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USERRA

• Disabled Servicemember may not work for another

employer during the 2-year period.

• The notice requesting reemployment need not be in writing

and the employer cannot require the Servicemember to fill

out an application or other paperwork prior to coming back

to work. If gone over 30 days, employer can request proof

of military service (DD form 214 usually).

• Reemployment rights do not apply to temporary positions

or positions that would have been eliminated regardless of

military service (burden of proof on employer).

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USERRA

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Employer Requirements Military obligations cannot be used as a motivating factor not to hire, promote, or provide a pay raise

• Grant military leave of absence (cannot request resignation)

• Prompt reinstatement of employee

• 90 days or less on military duty=escalator position, over 90 days =escalator or one of similar seniority, status, and pay. Disabled=same with accommodation if possible.

• Restore seniority; reinstate employment benefits , such as health insurance. Beware if a pension or 401(k) applies (SM has 3 times period of service, but not to exceed 5 years to make contributions.)

• Training or refreshing of skills at no cost to the servicemember

• No discrimination or retaliation

USERRA

Employer Requirements continued

• Must allow reasonable time off from work prior to entering military duty

when Servicemember (SM) requests leave.

• Cannot require documents prior to SM leaving for military duty.

• Cannot require SMs to use vacation/annual leave, but SMs can choose to

do so.

• SMs receive all seniority-based bonuses, raises, and increases in vacation

and other leave days they would have received had they never been gone.

• SM gone 31-180 days, protected 180 days; gone over 180 days, protected

for one year from termination except for cause. Burden of proof is on

employer.

• USERRA trumps at-will and other state or federal laws, union contracts,

and company policies that do not provide to SMs at least the same or more

rights as does USERRA.

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USERRA

• Contractor and contracting agency must

both comply with USERRA

• Foreign companies doing business in the

U.S. must comply relating to employees

working in the U.S.

• U.S. companies must comply with

USERRA relating to employees working

anywhere in the world.

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USERRA: who is covered?

USERRA has no statute of limitations

Applies to:

• Full-time or part-time employees

• Applicants for full, part-time, or temporary employment

• Employers with even one part-time employee

• Active duty military, Guard, and Reserve

Does not apply to:

• State Militia on state active duty (floods, snow, hurricanes, security, etc.) State laws apply (Code Title 44 in Virginia)

• Students (another federal law applies)

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Frequently Asked Questions

about USERRA

• Does USERRA protect Guard and Reserve (G/R) Servicemember if service was voluntary or weekend drills? Yes!

• Is G/R Servicemember required to provide written orders before entering military duty? No!

• Does the G/R Servicemember have to find a replacement for their absence on military duty? No!

• Does G/R Servicemember have to use vacation for military service? No!

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Top USERRA Violations

• Termination

• Discrimination

• Job Placement

• Pay Rate

• Work Schedule

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Resources

• How do I learn more about USERRA or ESGR?

http://www.esgr.mil

• “about ESGR”

• “USERRA FAQ”

• “Tips for G/R”

• How do I get answers to a specific USERRA question?

Contact Cindy Norwood at 804-663-7398 or cnorwood@oag.state.va.us (Office of the Attorney General of Virginia and ESGR Virginia Ombudsman Director)

ESGR via Email: USERRA@osd.mil

Contact ESGR: 1 (800) 336-4590

Contact DoL/Vets: Virginia Director, Patrick Hecker, at 804-786-7269

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Questions?

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We All Serve

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