Please note: This article provides general information only. It reflects the law at the time of publication.
You have job protection when you’re called to active duty. The Uniformed Services Employment and Reemployment Rights Act — commonly known as USERRA — is a federal law that provides service members and former service members with protections related to the civilian jobs they held before being called up for active duty. The law encourages non-career military service by minimizing civilian employment problems arising from an employee’s military commitment.
Under the act, an employer — including any government or private entity, regardless of size — can’t refuse to hire someone or deny a promotion or any employment benefit because the person served or is obligated to serve in a uniformed service.
Basic reintegration protections provided under USERRA include:
- Anti-discrimination protection. Employers can't discriminate against you in hiring, employment, reemployment, retention or promotion, or deny you other employment benefits because of your military service.
- Anti-retaliation protection. Your employer can't retaliate against you if you take action to enforce a protection, testify or make a statement in connection with a proceeding, participate in an investigation, or exercise a right provided by the act.
- Rights and benefits when mobilizing or deploying. Your employer must treat time away from work as furlough or leave of absence and can't require you to use your vacation, annual leave or similar leave for time away for military duties. You may choose to use your vacation time to keep getting paychecks, but your employer can't require it.
- Rights and benefits while mobilized or deployed. Because employers are required to treat time away as a furlough or leave of absence, non-seniority benefits provided to other employees on furlough or leave of absence must be extended to you, too. Your employer must treat your time away for military duties as if you were continuously employed. Your employer must also provide you the option to continue your health coverage; however, you may be required to pay more than the full premium.
- Reemployment and reinstatement of health plans. After deployment or on return, you're entitled to reemployment in a position that has the same pay benefits, seniority and other job perks you would have had if you hadn't left for military service. However, your employer isn't required to give you your old job. Your employer may need time to reassign or give notice to someone who took over your position while you were gone. If you're no longer qualified to hold a position, your employer must train you to a qualified status as long as that training wouldn't be an undue hardship for the employer. If you want to return to your company's health plan, your employer must reinstate you immediately on reemployment, with no waiting periods or exclusions due to pre-existing conditions, other than for Department of Veterans Affairs-determined, service-connected conditions.
- Discharge protection. After returning from deployment, your employer can't terminate you without just cause if your period of service was beyond 30 days. You can't be discharged without cause for 180 days if your service was from 31 to 180 days, and if your period of service was 181 days or more, your employer can't terminate you without cause for one year.
Your employer isn't required to pay you for time you're absent from work for military service. However, federal law gives federal civilian employees 120 hours per year of paid military leave, and about 40 states have similar laws for state and local government employees. Some private employers also offer pay or partial pay during military service, even though it isn't required. Ask about your employer's policy on paid military leave.
Contact your legal assistance office and or the Employer Support of the Guard and Reserve to find out how the law applies to your situation, or how to properly provide notice. You can also read Section 4312, Reemployment Rights of Persons Who Serve in the Uniformed Services.