Returning Military Vets Have Re-employment Rights
(from Maine Townsman, May 2003)
by
Michael L. Stultz, Esq., MMA Staff Attorney

Members of the Armed Forces returning from active duty have important reemployment rights thanks to a federal law enacted after the Gulf War of 1991.  Following are some frequently asked questions about the Uninformed Services Employment and Reemployment Rights Act of 1994 (USERRA).      

What does USERRA do? 

       USERRA prohibits discrimination in hiring, retention, promotion, or provision of other benefits of employment on the basis of a person’s participation in the National Guard or the U.S. Armed Forces Reserve.  It does not apply to state military duty or to a governor-called mobilization of the National Guard (although state law may provide similar protection in such cases).  

Who is subject to USERRA?

       USERRA applies to all employers in the United States, public and private, regardless of the number of employees. 

Who is covered by USERRA?

       USERRA protects all persons who serve, voluntarily or involuntarily, in the uniformed services (the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service, Army National Guard and Air National Guard).

 What does service under USERRA include?

       Service under USERRA includes all time spent on active duty, active duty training, inactive duty training (drills), initial active duty training and funeral honors duty performed by the National Guard and reserve members.

 What is an employer’s basic obligation under USERRA?

       USERRA requires a pre-service employer to reemploy service members returning from service if (1) the employee was previously employed with the employer; (2) the employee gave advance notice (written or oral) of service, except where military necessity makes this impossible or unreasonable; (3) the cumulative length of service did not exceed five years; (4) the employee was not discharged from service under dishonorable other punitive circumstances; and (5) the employee reports back to work within a certain time (depending on length of service).

 What position is a returning employee entitled to?

       Under USERRA, returning service members must be reemployed in the same job or in a job they would have attained had they not been absent for military service, and with the same seniority, status and pay, as well as other rights and benefits as determined by seniority.

 Is an employee entitled to pay while on active duty?

       No, USERRA does not require an employer to pay an employee while on active duty (although some employers choose to do so, while others make up the difference between military and civilian pay).

 Must an employee use vacation time while on active duty?

       No, under USERRA an employee cannot be required to use vacation time while on active duty, but the employee can choose to do so.  Vacation time does not accrue to employees while on active duty, however.

 What about health coverage while on active duty?

       Under USERRA, if the length of service is less than 30 days, an employer must continue the normal employer-provided health coverage (if any).  After 30 days, employer-provided health coverage is no longer required, although the employee can elect to continue coverage, at the employee’s expense, for an additional period of up to 18 months.

 Who administers and enforces USERRA?

       USERRA is generally administered and enforced by the U.S. Department of Labor’s Veterans’ Employment and Training Service, but serious employer infractions may be prosecuted by the U.S. Attorney General or the Office of Special Counsel.

 What remedies are available for USERRA violations?

       Remedies under USERRA can include return to work, back pay, reinstated benefits, corrected personnel files, lost promotions, retroactive seniority, pension adjustments, restored vacation time and liquidated damages (for willful violations).

       For more USERRA information, go to U.S. Dept. of Labor website at www.dol.gov/vets/#userra  or Employer Support for the Guard and Reserve at www.esgr.org/members/thelaw.asp .