USERRA is a federal law codified in Title 38, United States Code, Sections 4301 – 4333.  USERRA prohibits employers from discriminating against any person on the basis of their past military service, current military obligations, or intent to join any of the Uniformed Services. Under USERRA, if Service members leave their civilian job for service in the Uniformed Services, they are entitled to return to the job, with accrued seniority, as long as they have met the law’s eligibility criteria.

USERRA is a federal law codified in Title 38, United States Code, Sections 4301 – 4333.  USERRA prohibits employers from discriminating against any person on the basis of their past military service, current military obligations, or intent to join any of the Uniformed Services. Under USERRA, if Service members leave their civilian job for service in the Uniformed Services, they are entitled to return to the job, with accrued seniority, as long as they have met the law’s eligibility criteria.

Under USERRA, the "Uniformed Services" include active duty, active duty for training, inactive duty training (i.e., drills), initial active duty training, and funeral honors duty in the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps. Military Fitness examinations are also covered under USERRA. Federal training/service in the Army National Guard and Air National Guard gives rise to rights under USERRA, but state service, pursuant to a call from the governor of the state, is not protected by the federal law, although it may be protected by state law.  See 20 CFR 1002.5(o), 20 CFR 1002.6, and 20 CFR 1002.54-61.

Under USERRA, the "Uniformed Services" include active duty, active duty for training, inactive duty training (i.e., drills), initial active duty training, and funeral honors duty in the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps. Military Fitness examinations are also covered under USERRA. Federal training/service in the Army National Guard and Air National Guard gives rise to rights under USERRA, but state service, pursuant to a call from the governor of the state, is not protected by the federal law, although it may be protected by state law.  See 20 CFR 1002.5(o), 20 CFR 1002.6, and 20 CFR 1002.54-61.

Reserve Component service members are covered by USERRA if they 

• held or have applied for a civilian job. (For jobs where employers can demonstrate that the job was held for a brief, nonrecurrent period without reasonable expectation of continuing for a significant period, the service member would not be covered by USERRA.)
• gave written or verbal notice to their civilian employer prior to leaving for military training or service except when precluded by military necessity.
• did not exceeded the five year period of service limit.
• were released from service under conditions other than dishonorable.
• reported back to their civilian job in a timely manner or submitted a timely application for reemployment.

See 20 CFR 1002.32.

Reserve Component service members are covered by USERRA if they 

• held or have applied for a civilian job. (For jobs where employers can demonstrate that the job was held for a brief, nonrecurrent period without reasonable expectation of continuing for a significant period, the service member would not be covered by USERRA.)
• gave written or verbal notice to their civilian employer prior to leaving for military training or service except when precluded by military necessity.
• did not exceeded the five year period of service limit.
• were released from service under conditions other than dishonorable.
• reported back to their civilian job in a timely manner or submitted a timely application for reemployment.

See 20 CFR 1002.32.

USERRA does not specify a minimum period of notice that service members must give to their employers, as very little advance notice of activation may have been given to the service member by the military. The Department of Defense recommends 30 days notice be given when possible. See 20 CFR 1002.85.

USERRA does not specify a minimum period of notice that service members must give to their employers, as very little advance notice of activation may have been given to the service member by the military. The Department of Defense recommends 30 days notice be given when possible. See 20 CFR 1002.85.

No. Service members can use their vacation (to continue receiving pay from their civilian employer) if they wish, but it is unlawful for their employer to force them to use their vacation.  See 20 CFR 1002.153.

No. Service members can use their vacation (to continue receiving pay from their civilian employer) if they wish, but it is unlawful for their employer to force them to use their vacation.  See 20 CFR 1002.153.

No. USERRA does not require employers to pay service members for time not worked due to military service. A separate law (Title 5, United States Code Section 6323) provides federal civilian employees the right to 120 hours each fiscal year for paid military leave. Many individual states have similar laws for state and local government employees. Some private employers also do provide pay during some periods of military absence, though not required to do so.  See 20 CFR 1002.7.

No. USERRA does not require employers to pay service members for time not worked due to military service. A separate law (Title 5, United States Code Section 6323) provides federal civilian employees the right to 120 hours each fiscal year for paid military leave. Many individual states have similar laws for state and local government employees. Some private employers also do provide pay during some periods of military absence, though not required to do so.  See 20 CFR 1002.7.

Yes and no. Employers are required to provide Service members away on military duties non-seniority benefits consistent with the benefits they provide to employees who have been furloughed (laid off) or to employees who are on a different, yet similar, non-military leave such as jury leave or educational leave. See 20 CFR 1002.149-153. Seniority benefits are to continue as if the Service member never left employment. See 20 CFR 1002.210-213.

Employees who are absent due to performance of military duties are entitled to elect to continue their health plan coverage through their civilian job. For service of less than thirty-one days, employers are only permitted to charge the employee the employee share (if any) of the cost of the coverage. For service in excess of thirty-one days, the employer is permitted (but not required) to charge up to 102% of the entire premium, including the portion of the coverage cost that the employer normally pays for their employees.  See 20 CFR 1002.166.

Yes and no. Employers are required to provide Service members away on military duties non-seniority benefits consistent with the benefits they provide to employees who have been furloughed (laid off) or to employees who are on a different, yet similar, non-military leave such as jury leave or educational leave. See 20 CFR 1002.149-153. Seniority benefits are to continue as if the Service member never left employment. See 20 CFR 1002.210-213.

Employees who are absent due to performance of military duties are entitled to elect to continue their health plan coverage through their civilian job. For service of less than thirty-one days, employers are only permitted to charge the employee the employee share (if any) of the cost of the coverage. For service in excess of thirty-one days, the employer is permitted (but not required) to charge up to 102% of the entire premium, including the portion of the coverage cost that the employer normally pays for their employees.  See 20 CFR 1002.166.

No. Service members are required to provide their employers notice, not obtain their permission. Although employers have no right to veto the timing, frequency, and duration of military training and service, they do have the right to contact the commanding officer to attempt to resolve any conflict of this kind. The commanding officer will agree to reasonable requests for rescheduling training as long as it does not detract from unit readiness and mission accomplishment.  See 20 CFR 1002.87 and 20 CFR 1002.104.

No. Service members are required to provide their employers notice, not obtain their permission. Although employers have no right to veto the timing, frequency, and duration of military training and service, they do have the right to contact the commanding officer to attempt to resolve any conflict of this kind. The commanding officer will agree to reasonable requests for rescheduling training as long as it does not detract from unit readiness and mission accomplishment.  See 20 CFR 1002.87 and 20 CFR 1002.104.

Yes.  The Servicemember Civil Relief Act (SCRA) of 2003 revised the Soldiers' and Sailors' Civil Relief Act and extended certain rights to Reserve Component personnel called to active duty. Specifically, SCRA protects military personnel in active duty status by 

• providing certain protections for service members against default judgments while in military service, including a minimum ninety day stay of proceedings, with respect to the payment of any tax, fine, penalty, insurance premium, or other civil obligation or liability.
• allowing a stay of execution of judgments, attachments, and garnishments against a service member for the period of military service or within ninety days thereafter.
• setting a maximum of six percent per year on interest for obligations or liabilities incurred by the service member, or jointly by the service member and his/her spouse, before the service member entered military service.
• prohibiting an eviction or distress from being made against a service member or his or her dependents during a period of military service for a premise for which rent does not exceed $2,400. 
• prohibiting the rescinding or terminating for breach of contract, during a period of military service, a contract for the purchase or lease of real or personal property, including a motor vehicle, entered into prior to such service.
• prohibiting a person holding a lien on property or effects of a service member from foreclosing or otherwise enforcing such lien (with penalties and protection for materially affected dependents) during a period of service and ninety days thereafter.

The Family and Medical Leave Act (FMLA) 

• provides Military Family Leave Entitlements for numerous purposes related to the active military of a spouse, son, daughter, or parent.  
• includes a special leave entitlement for purposes of caring for a seriously injured or ill service member whose injury or illness occurred in the line of duty.

For additional information, see US Department of Labor Wage and Hour Division.

Yes.  The Servicemember Civil Relief Act (SCRA) of 2003 revised the Soldiers' and Sailors' Civil Relief Act and extended certain rights to Reserve Component personnel called to active duty. Specifically, SCRA protects military personnel in active duty status by 

• providing certain protections for service members against default judgments while in military service, including a minimum ninety day stay of proceedings, with respect to the payment of any tax, fine, penalty, insurance premium, or other civil obligation or liability.
• allowing a stay of execution of judgments, attachments, and garnishments against a service member for the period of military service or within ninety days thereafter.
• setting a maximum of six percent per year on interest for obligations or liabilities incurred by the service member, or jointly by the service member and his/her spouse, before the service member entered military service.
• prohibiting an eviction or distress from being made against a service member or his or her dependents during a period of military service for a premise for which rent does not exceed $2,400. 
• prohibiting the rescinding or terminating for breach of contract, during a period of military service, a contract for the purchase or lease of real or personal property, including a motor vehicle, entered into prior to such service.
• prohibiting a person holding a lien on property or effects of a service member from foreclosing or otherwise enforcing such lien (with penalties and protection for materially affected dependents) during a period of service and ninety days thereafter.

The Family and Medical Leave Act (FMLA) 

• provides Military Family Leave Entitlements for numerous purposes related to the active military of a spouse, son, daughter, or parent.  
• includes a special leave entitlement for purposes of caring for a seriously injured or ill service member whose injury or illness occurred in the line of duty.

For additional information, see US Department of Labor Wage and Hour Division.

If the service member meets the eligibility criteria (see above), he or she is entitled to 

• prompt reinstatement of his or her position. "Prompt" is generally a matter of days, not weeks or months, but can be adjusted based on the length of the period of military service.  See 20 CFR 1002.180-181.
• accrued seniority that the service member would have received had he or she been continuously employed as well as any benefits that would have been earned as a result of the accrued seniority (to include status, rate of pay, pension vesting, and credit for period of pension benefits). See 20 CFR 1002.191-199, 20 CFR 210-213, 20 CFR 236, and 20 CFR 259.
• training or retraining accommodations. See 20 CFR 1002.198, and 20 CFR 225-226.
• special protection against discharge, except for cause. For periods of military service 31 – 180 days in length, employers may not terminate employment without cause for 180 days. For periods of military service in excess of 180 days, employers may not terminate employment without cause for one year. See 20 CFR 1002.247-248.

If the service member meets the eligibility criteria (see above), he or she is entitled to 

• prompt reinstatement of his or her position. "Prompt" is generally a matter of days, not weeks or months, but can be adjusted based on the length of the period of military service.  See 20 CFR 1002.180-181.
• accrued seniority that the service member would have received had he or she been continuously employed as well as any benefits that would have been earned as a result of the accrued seniority (to include status, rate of pay, pension vesting, and credit for period of pension benefits). See 20 CFR 1002.191-199, 20 CFR 210-213, 20 CFR 236, and 20 CFR 259.
• training or retraining accommodations. See 20 CFR 1002.198, and 20 CFR 225-226.
• special protection against discharge, except for cause. For periods of military service 31 – 180 days in length, employers may not terminate employment without cause for 180 days. For periods of military service in excess of 180 days, employers may not terminate employment without cause for one year. See 20 CFR 1002.247-248.

How soon service members must report back to work depends on the length of the period of service. For service less than thirty-one days, service members are required to report for work "not later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence." If extenuating circumstances, that are no fault of the service member, arise that prevent him or her from returning to work at that time (e.g., automobile accident on return trip), he or she must report for work as soon as possible thereafter. For periods of military service between 31 and 180 days in length, service members are required to submit an application for reemployment within 14 days of the end of the period of military service. For periods of military service greater than 180 days, service members have 90 days to submit their application for reemployment. Each of these deadlines may be extended for up to two years if the service member is hospitalized or convalescing due to a service-connected injury or illness.  See 20 CFR 1002.115-117.

How soon service members must report back to work depends on the length of the period of service. For service less than thirty-one days, service members are required to report for work "not later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence." If extenuating circumstances, that are no fault of the service member, arise that prevent him or her from returning to work at that time (e.g., automobile accident on return trip), he or she must report for work as soon as possible thereafter. For periods of military service between 31 and 180 days in length, service members are required to submit an application for reemployment within 14 days of the end of the period of military service. For periods of military service greater than 180 days, service members have 90 days to submit their application for reemployment. Each of these deadlines may be extended for up to two years if the service member is hospitalized or convalescing due to a service-connected injury or illness.  See 20 CFR 1002.115-117.

An application for reemployment can be an informal statement that says you are ready to return to work. The application can be made verbally, by implication, or as a written notice. The Employer Support of the Guard and Reserve (ESGR) office recommends using a written format and has provided a sample application for reemployment on their web site.  See 20 CFR 1002.118-120.

An application for reemployment can be an informal statement that says you are ready to return to work. The application can be made verbally, by implication, or as a written notice. The Employer Support of the Guard and Reserve (ESGR) office recommends using a written format and has provided a sample application for reemployment on their web site.  See 20 CFR 1002.118-120.

Yes. Under USERRA, for periods of military service in excess of thirty days, the returning employee must (upon request of the employer) provide documentation that establishes length and character of the service. Even if such documentation does not exist or is not readily available, reemployment cannot be delayed. The Secretary of Labor has determined that the following documents are sufficient for proving military service: discharge papers, leave and earnings statements, school completion certificate, endorsed orders, or a letter from a proper military authority. Shorter periods of military service are not specifically addressed by USERRA, but if issues arise, employers should contact the employee’s military command with questions about a specific period of military service.  See 20 CFR 1002.121-123.

Yes. Under USERRA, for periods of military service in excess of thirty days, the returning employee must (upon request of the employer) provide documentation that establishes length and character of the service. Even if such documentation does not exist or is not readily available, reemployment cannot be delayed. The Secretary of Labor has determined that the following documents are sufficient for proving military service: discharge papers, leave and earnings statements, school completion certificate, endorsed orders, or a letter from a proper military authority. Shorter periods of military service are not specifically addressed by USERRA, but if issues arise, employers should contact the employee’s military command with questions about a specific period of military service.  See 20 CFR 1002.121-123.

If you believe that your rights under USERRA have been violated, there are many options for resolving the issue.

The service member can speak directly with the employer. More often than not, discussions with employers can lead to acceptable solutions as long as the discussion is conducted in a respectable and calm manner. If this course of action is not successful, the service member may speak with the unit commander. Unit commanders may be able to discuss or articulate the issue with the employer better, or they may be able to suggest compromises and alternatives that address everyone's concerns.

If speaking to employers and unit commanders does not resolve the issue, the Employer Support for the Guard and Reserve (ESGR) offers Ombudsman services. The ESGR Ombudsman Services can be reached through their toll-free number at 1-800-336-4590, option 1 or through the ESGR Customer Service Center. A Service member can submit an inquiry or an USERRA Assistance Request.  When an assistance request is made based on a suspected USERRA violation, an ESGR Ombudsman will perform informal dispute resolution mediation services between the employer and employee in an attempt to resolve the issue.

Service members may also file a claim to be investigated by either the US Department of Labor’s Veterans Employment and Training Service (DoL VETS) or the U.S. Office of Special Counsel (OSC). Further assistance on filing an USERRA claim can be obtained through the DoL's VETS, by contacting your local VETS office and through the OSC web site.

If you believe that your rights under USERRA have been violated, there are many options for resolving the issue.

The service member can speak directly with the employer. More often than not, discussions with employers can lead to acceptable solutions as long as the discussion is conducted in a respectable and calm manner. If this course of action is not successful, the service member may speak with the unit commander. Unit commanders may be able to discuss or articulate the issue with the employer better, or they may be able to suggest compromises and alternatives that address everyone's concerns.

If speaking to employers and unit commanders does not resolve the issue, the Employer Support for the Guard and Reserve (ESGR) offers Ombudsman services. The ESGR Ombudsman Services can be reached through their toll-free number at 1-800-336-4590, option 1 or through the ESGR Customer Service Center. A Service member can submit an inquiry or an USERRA Assistance Request.  When an assistance request is made based on a suspected USERRA violation, an ESGR Ombudsman will perform informal dispute resolution mediation services between the employer and employee in an attempt to resolve the issue.

Service members may also file a claim to be investigated by either the US Department of Labor’s Veterans Employment and Training Service (DoL VETS) or the U.S. Office of Special Counsel (OSC). Further assistance on filing an USERRA claim can be obtained through the DoL's VETS, by contacting your local VETS office and through the OSC web site.

In discrimination cases covered by USERRA, the burden of proof falls on the individual making claim that his/her employer has violated USERRA.USERRA states that denial of employment or any adverse action taken by an employer is unlawful if the motivating factor was a connection to military service and that employers' actions are prohibited "unless the employer can prove that the action would have been taken under the absence of such membership…" Section 4311(c) of Title 38, United States Code, states:

An employer shall be considered to have engaged in actions prohibited-

(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the Uniformed Services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or

(2) under subsection (b), if the person's (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such person's enforcement action, testimony, statement, assistance, participation, or exercise of a right.  See 20 CFR 1002.22-23.

In discrimination cases covered by USERRA, the burden of proof falls on the individual making claim that his/her employer has violated USERRA.USERRA states that denial of employment or any adverse action taken by an employer is unlawful if the motivating factor was a connection to military service and that employers' actions are prohibited "unless the employer can prove that the action would have been taken under the absence of such membership…" Section 4311(c) of Title 38, United States Code, states:

An employer shall be considered to have engaged in actions prohibited-

(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the Uniformed Services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or

(2) under subsection (b), if the person's (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such person's enforcement action, testimony, statement, assistance, participation, or exercise of a right.  See 20 CFR 1002.22-23.

Under USERRA, time away for military duties must be counted as if the employee had been continually employed for the entire time. This provision of the law specifically relates to eligibility, vesting, and accrual of benefits that are tied to length of service. Even though the employer must count the time away as being employed, employers do not have to make matching contributions to a 401(k) plan during this time. Once the service member returns to work, the employer must make the employer contributions that would have been made while the service member was away. If the retirement plan requires that employees make contributions to the plan (i.e., a company matches employee contributions), then the service member must make these contributions to have the employer contribute the matching amounts. Service members have a period of the lesser of up to three times the period of military duty or five years to make their contributions. Once employee contributions have been made, employers must make the matching contributions.  See 20 CFR 1002.259-267.

Under USERRA, time away for military duties must be counted as if the employee had been continually employed for the entire time. This provision of the law specifically relates to eligibility, vesting, and accrual of benefits that are tied to length of service. Even though the employer must count the time away as being employed, employers do not have to make matching contributions to a 401(k) plan during this time. Once the service member returns to work, the employer must make the employer contributions that would have been made while the service member was away. If the retirement plan requires that employees make contributions to the plan (i.e., a company matches employee contributions), then the service member must make these contributions to have the employer contribute the matching amounts. Service members have a period of the lesser of up to three times the period of military duty or five years to make their contributions. Once employee contributions have been made, employers must make the matching contributions.  See 20 CFR 1002.259-267.