You Should Know About USERRA...The Uniformed Services Employment and Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law which gives members and former members of the U.S. armed forces (active and reserves) the right to go back to a civilian job they held before military service.
WHO IS ENTITLED TO USERRA PROTECTION?
Any military member qualifies for USERRA protection if they meet all five of these tests:

1. JOB. All civilian jobs are covered, unless the employer can prove the job was truly a temporary position. USERRA applies to all private employers, state governments, and all branches of the federal government.

2. NOTICE. The military member or a responsible officer from the member’s military unit must give advance notice to the employer before he or she leaves for active duty. Notice can be oral or written.

3. DURATION. The member can be gone from his or her civilian job for a total of five years. Any absences protected under the previous law (VRRA) count towards the five-year total.  Most periodic and special Reserve and National Guard training does not count toward the five-year total.

4. CHARACTER OF SERVICE. The member must receive an honorable or general discharge. This test does not apply if the member remains in the reserve component, but an employer can still require some proof that the member’s period of service was honorable.

5. PROMPT RETURN TOWORK. If the military member is gone up to 30 days, he or she must report back to the first shift that begins after safe travel time from the duty site plus eight hours to rest. If the member was gone 31 to 180 days, he or she must apply in
writing for work within 14 days after completing military service. If the member was gone 181 days or more, he or she must apply in writing for work within 90 days.
MILITARY MEMBERS ARE ENTITLED TO PROTECTIONS BOTH WHILE THEY ARE GONE AND WHEN THEY RETURN TOWORK.

1. HEALTH INSURANCE DURING SERVICE.
If the employee requests it, the employer must continue to carry the employee and his or her family on the company health plan for up to 30 days of service, at the normal cost to employee. (Military healthcare does not cover family members for tours of
30 days or less.) The military member is entitled to up to 18 months of coverage,
but the employer can pass the full cost (including the company’s share) on to the military member.

2. PROMPT REINSTATEMENT. The employee is entitled to get his or her job back immediately if they were gone thirty days or less. After longer service, they must get their job back within a few days.

3. STATUS AND SENIORITY. For purposes of status, seniority, and most pension rights (including pay rate) the employee is treated as if they never left for military service. If the member’s peers received promotions or raises while the member was gone, the member must receive the same promotions and/or raises.

4. TRAINING AND OTHER ACCOMMODATIONS.
The employer must train the member on new equipment or techniques, refresh the member’s skills, and accommodate any service connected disability.

5. SPECIAL PROTECTION AGAINST DISCHARGE OTHER THAN FOR CAUSE.

If the member is fired within a protected period, the employer must prove the firing was not because of military service. The length of protected period varies with how long the member was on active duty.

6. IMMEDIATE REINSTATEMENT OF HEALTH BENEFITS.
The member and his or her family may go back on the company health plan immediately upon returning to the civilian job. There can be no waiting period and no exclusion of
pre-existing conditions, other than for VA-determined service-connected conditions.

7. ANTIDISCRIMINATION PROVISION.
USERRAprohibits discrimination based upon military service or military service obligation.

8. OTHER BENEFITS. USERRA guarantees certain rights. It does not eliminate any other benefits the member may have from state law, contract, or collective bargaining agreement.

WHAT JOB POSITION IS AN EMPLOYEE RETURNED TO AFTER MILITARY LEAVE OF ABSENCE?
Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service. The rules are: Service of 1 to 90 days: (a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or (b), if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service. Service of 91 or more days: (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position.
ENFORCEMENT.

USERRA gives the employee the right to sue his or her employer in federal court. If the lawsuit is successful, the employee may be able to recover court costs and attorney fees.