Five USERRA Responsibilities Employers Should Know Regarding Soldiers in the Workplace

These rights apply to employees on active duty or in the reserves, and employees who are not deployed but also must be away from work at intervals to perform their service. It is important for employers to understand if the law applies and, if so, what it requires. Failure to abide by USERRA’s requirements can result in receipt of an investigation inquiry or citation from the Department of Labor, as well as legal liability.

The driving force of USERRA is to provide reemployment rights to those who choose to serve in the armed forces. (See 38 USC §4301.)  Below are five (5) requirements all employers should know.

1. USERRA applies to all employers, regardless of size. This is different from other employment laws that only apply to employers based on the number of employees that the company employs. 

2. USERRA provides that notice of military service does not have to be written. The employee is entitled to reemployment rights and benefits under USERRA if that employee has given advance written OR verbal notice of such service to the employer. However, no notice is required if it is precluded by military necessity, or the giving of such notice is otherwise impossible or unreasonable. After military leave of more than 30 days the employer has the right to request documentation to be used to establish the employee's eligibility for protection under USERRA.

3. USERRA outlines detailed and specific requirements for the return of an employee from service that impact what position, pay and benefits an employee can be returned to based on: 1) if the position’s pay and benefits were advanced due to seniority in the position; and 2) the amount of time the employee has been away. Employees away for under 90 days who are not qualified to return to the advanced position must receive reasonable training to qualify them for the position and otherwise must be placed in a like position with the same pay and benefits.  Employees who are away longer than 90 days must either be returned to the same position they would have been in from a seniority perspective as if they had not been away, with commensurate pay and benefits, or the position, pay and benefits they were in at the time service commenced if not qualified for the seniority advancement.  There are a number of additional factors other than those summarized here that an employer must take into careful consideration when returning an employee to employment. Employers are urged to familiarize themselves with those factors as outlined in 38 U.S.C. §§4312, 4313, and 4316, or seek legal advice and counsel, to ensure compliance. 
   
   It is also important to note that this reemployment right can also go the other way. If an employer demotes or lays off other workers in the position that the service member employee held at the commencement of military leave, that employer may be able to lawfully demote or lay off that employee.

4. USERRA outlines the time period an employee on military service has to report back to the employer upon return from military service to give the employee time to transition back to civilian life and work.

   1. For military service of 30 days or less, the employee must report back to work at the next scheduled shift on the day following completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation from the place of service to the person’s residence and rest.

   2. For service periods between 31 and 180 days, the employee must report to the employer within 14 days following completion of service.

   3. For a service period of 181 days or more, the employee must report to the employer within 90 days after release.

   4. NOTE: Employees who return with disabilities have two years following the completion of service to report to the employer, for purposes of recuperation and convalescence.

5.  For certain employees, there is a period in which an individual can only be discharged for cause. If the employee served for between 31 to 180 days, the period of protection from discharge under USERRA is 180 days. If the period of service was longer than 181 days, the employee is protected from discharge, except for cause, for one year.