USERRA and reemployment after military service

  • Published
  • By Capt. Thomas Franzinger
  • 60th Air Mobility Wing Assistant Staff Judge Advocate
TRAVIS AIR FORCE BASE, Calif. --  Deciding to join the military is a big decision. A decision that requires much thought and consideration. The same can be said about what to do after one's military service has ended.

So is it possible for a servicemember to get his or her same job back after their service is up?

The Uniformed Services Employment and Reemployment Rights Act of 1994 governs a servicemember's right to reemployment after completion of military training or service, including voluntary enlistment.

In order to qualify for USERRA protection, there are five general criteria the servicemember must meet. The member must:

-- Hold or have applied for a civilian job, unless it is a temporary and non-recurrent job with no reasonable expectation that it will be renewed.

-- Have given written or verbal notice to the civilian employer prior to leaving the job for military service or training, if possible.

-- Not have exceeded a 5-year cumulative limit on periods of service. There are exceptions for members who undergo longer, extensive initial training (like active aviators) or serve involuntarily during wartime.

-- Not have been dishonorably discharged.

-- Report back to the civilian job in a timely manner or submit a timely application for reemployment, depending on the length of the service-related absence. The deadlines may be extended for recovery from service-related injuries.

If the above criteria are met, under USERRA, returning employees are entitled to:

-- Prompt reinstatement

-- Accrued seniority and the applicable rights and benefits as if continuously employed.

-- Reasonable retraining and other accommodations, especially for cases of long absences or service-connected disabilities.

--Protection against discharge, except for cause. The period of this protection is 180 days following periods of service of 31 to 180 days. For periods of service of 181 days or more, it is one year.

-- Protection from employer reprisals for filing a USERRA action against the employer.

Under USERRA, for service exceeding 31 days, an employer is entitled to proof that the member actually performed military duty.

The returning employee must provide documentation if it is readily available, such as discharge papers, school completion certificates, endorsed orders and leave and earnings statements.

Servicemembers must be given adequate time to travel to and from their duty stations, and they cannot be required to use earned vacation time while performing military service.

Servicemembers and their family members can also retain their benefits and health insurance from their civilian employer.

If the servicemember decides to discontinue the coverage while performing military duty, then USERRA gives an employee and previously covered family members the right to immediate reinstatement of health insurance coverage upon return to the job.

Given the increased demands placed on military members and their families, the Department of Justice has recently heightened its vigilance of USERRA violations.

If a servicemember is having difficulty with their employer and believes the employer may have violated USERRA, they should speak with an attorney to discuss the situation.

For more information, contact the base legal office at 424-3251.