Job Rights of Federal Employees
WHO ENTER THE UNIFORMED SERVICES
Federal employees who enter the Uniformed Services have certain obligations and rights related to their civilian jobs. This fact sheet summarizes the rights and obligations provided by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), but is not a substitute for provisions in law or U.S. Office of Personnel Management (OPM) regulations.
Federal agencies are required to tell employees who enter the service about their entitlements, obligations, benefits, and appeal rights.
EMPLOYEES COVERED BY THE LAW
- All employees, permanent and nonpermanent, in executive agencies, including the U.S. Postal Service, the Postal Rate Commission, and nonappropriated fund employees.
- Employees in the intelligence agencies have basically the same rights but are covered under agency regulations rather than OPM's. These employees also have different appeal rights.
WHAT SERVICE IS COVERED
- All service, voluntary or involuntary, with the Armed Forces (including active duty, active duty for training, initial active duty for training, and absence for service fitness examination);
- National Guard when engaged in active duty for training, inactive duty training, or full-time Guard duty;
- Commissioned Corps of the Public Health Service; and
- Other groups designated by the President in time of war or emergency.
To have restoration rights, the employee must:
- Give the agency advance notice (except when prevented by military circumstances);
- Be released from the military under honorable conditions;
- Serve no more than a cumulative total of 5 years (exceptions are allowed for training and involuntary active duty extensions, and to complete an initial service obligation of more than 5 years); and
- Apply for restoration within the appropriate time limits (see below).
RESOLVING EMPLOYMENT CONFLICTS
Employees in a Reserve component have an obligation to both the military and their civilian employers. Some conflict may be unavoidable, and good-faith efforts by the employee and the agency are needed to resolve any differences.
Agencies may not question the timing, frequency, duration, and nature of the uniformed service, but employees are obligated to try to minimize the agency's burden. For example, employees should give as much advance notice as possible when their military service will interfere with their civilian work.
When there is a conflict between Reserve duty and the legitimate needs of the agency, the agency may contact appropriate military authorities to express concern or determine if the military service could be rescheduled or performed by another member. If military authorities determine that the service is necessary, the agency is required to permit the employee to go.
TIME LIMITS FOR RESTORATION
Employees who served:
- Less than 31 days (or who leave to take a fitness exam for service) must report back for civilian duty at the beginning of the next regularly scheduled work day following their release from service and the expiration of 8 hours after a time for safe transportation back to the employee's residence.
- More than 30 but less than 181 days must apply for reemployment within 14 days of release from service.
- More than 180 days have 90 days after completion of service to apply for restoration.
Employees who fail to return or apply within these time limits are subject to disciplinary action.
Agencies must reemploy as soon as practicable, but no later than 30 days after receiving the application. Agencies have the right to ask for documentation showing the length and character of the employee's service and the timeliness of the application.
POSITIONS TO WHICH RESTORED
- Employees who served less than 91 days must be placed in the position for which they are qualified and would have attained if their employment had not been interrupted. If not qualified for such position after reasonable efforts by the agency to qualify the person, the employee is entitled to be placed in the position he or she left.
- Employees who served more than 90 days have essentially the same rights as above, except that the agency has the option of placing the employee in a position for which they are qualified, with like seniority, status, and pay.
- Employees with service-connected disabilities who are not qualified for the above must be reemployed in a position that most closely approximates the position they would have been entitled to, consistent with the circumstances in each case.
- Employees serving under time-limited appointment serve out the unexpired portions of their appointments upon return.
When an employee applies to OPM for restoration and OPM determines that it is impossible or unreasonable for an agency in the executive branch (other than an intelligence agency) to place a returning employee, OPM will order the employee placed in another agency.
If the returning employee is a member of an intelligence agency, a non-career National Guard technician who was separated involuntarily from the Guard for reasons beyond his or her control, or a legislative or judicial branch employee, OPM will order the individual placed in another agency when the previous employer notifies OPM that it is impossible or unreasonable to reemploy the individual and he or she applies to OPM for placement assistance.
HOW SERVICE IS CREDITED
Upon restoration, employees are generally entitled to be treated as though they had never left. This means that time spent in the uniformed service counts for seniority, within-grade increases, completion of probation, career tenure, retirement, and leave rate accrual. (Employees do not earn sick or annual leave while off the rolls or in a non-pay status.)
- Employees who enter the Uniformed Services are not subject to a reduction in force while they are in service. After their return, they may not be discharged (except for cause) for 1 year if they served for more than 180 days, or for 6 months if they served for more than 30 but less than 181 days.
- The law prohibits an agency from discriminating against or taking any reprisal against an applicant or employee because of his or her application, membership, or service in the Uniformed Services.
Individuals who believe their agency has not complied with the law or with OPM's regulations may file a complaint with the Department of Labor (202) 576-3082 or appeal directly to the Merit Systems Protection Board.
PAID MILITARY LEAVE
Each fiscal year, employees under permanent appointment are entitled to 15 days (120 hours) of military leave, with pay, to perform active duty, active duty training, or inactive duty training as a member of a Reserve component or National Guard. Reservists may use military leave to cover drill periods or to perform funeral honors duty since both are considered inactive duty training for the purposes of military leave. Part-time employees and employees on uncommon tours of duty are entitled to military leave pro-rated according to the number of hours in the regularly scheduled tour of duty, e.g., an employee who works 20 hours a week earns 7 days (56 hours) of military leave.
Employees may carry over 15 (120 hours) days of unused military leave into a new fiscal year. Therefore, potentially they may have a total of 30 (240 hours) days to use in any one fiscal year. This means that Reservists whose military duty spans two fiscal years may use up to 45 days of military leave at one time.
Military leave should be credited to a full-time employee on the basis of an 8-hour workday. The minimum charge to leave is 1 hour. An employee may be charged military leave only for hours that the employee would otherwise have worked and received pay. Employees who request military leave for inactive duty training (which generally is 2, 4, or 6 hours in length) are charged only the amount of military leave necessary to cover the period of training and necessary travel. Members of the Reserves or and National Guard are not charged military leave for weekends and holidays that occurs within the period of military service.
Upon request, an employee performing duty with the uniformed services is entitled to use either accrued annual leave or military leave for such service.
The life insurance of an employee, who takes leave without pay to enter uniformed service, can continue for up to 12 months. If the employee separates to enter the uniformed service, life insurance continues for up to 12 months, or until 90 days after uniformed service ends, whichever is sooner. The insurance is provided at no cost to the employee.
Employees who enter uniformed service can continue their health insurance for up to 12 months; although employees continue to pay their share of the premium.
Employees who remain in uniformed service longer than 12 months may continue health benefit coverage for up to an additional 12 months by paying 102 percent of the premium, i.e., the employee�s share, the agency�s share, and a 2 percent administrative fee.
All uniformed service performed for the United States is generally creditable for civil service retirement. USERRA makes full-time National Guard duty creditable for retirement purposes if it interrupts creditable civilian service and is followed by restoration after August 1, 1990.
To get credit for their uniformed service after August 1, 1990, employees are required to pay to the retirement fund 3 percent towards Federal Employee's Retirement System (FERS) or 7 percent towards Civil Service Retirement System (CSRS) of the military basic pay, or, if less, the amount of civilian retirement deductions which would have been withheld had the individual not entered military service. Interest is added under certain circumstances.
USERRA allows employees to make up the contributions to the thrift savings plan that they missed because of their uniformed service.
WHERE TO GO FOR HELP
Employees with questions should first contact their Personnel Office. By law, the Department of Labor's Veterans' Employment and Training Service (VETS) at www.dol.gov/vets provides assistance to Federal employees or applicants. VETS staff tries to resolve disputes, and may also ask the Office of the Special Counsel to represent the individual in an appeal before the Merit Systems Protection Board.
Other help is available from either of the following: The Ombudsman for the National Committee for Employer Support of the Guard and Reserve at 1-800-336-4590; any national veterans' service organization; or OPM Service Center.
AS OF: 09-07-06
Job Rights of Federal Employees Who Enter the Uniformed Services
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