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How the Uniformed Services Employment and Reemployment Rights Act (USERRA) Protects Service Members

 

Enacted in 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes rights and responsibilities for uniformed members of the armed forces and their civilian employers.

USERRA requires that, upon returning from duty, Service members must be promptly re-employed in the same position that they would have attained had they not been absent, with the same pay and status, plus other benefits determined by seniority. The act also protects employees from discrimination based on past, present, or future military service.

Eligibility Under USERRA

To be eligible for reemployment rights under USERRA, the Service member must meet five criteria:

  • They must hold or have applied for a civilian job.
  • They must have given the employer verbal or written notice before departing for military training or service.
  • They must not have exceeded a 5-year cumulative limit on periods of service.
  • They must have been released from service under conditions other than dishonorable discharge.
  • They must report back to their civilian job or apply for re-employment in a timely manner after release from service.

Right to Reinstatement

When a USERRA-eligible employee returns from service, the employer is required to provide

  • Prompt reinstatement
  • Accrued seniority, as if the person had been continuously employed
  • Training, retraining, or other accommodations, which may be necessary in cases of a long-term absence or a service-related disability
  • Protection against discharge, except for cause, for 180 days following service periods of 31-180 days, or for one year following service periods of longer than 181 days

Protection Against Discrimination

USERRA also provides, in Section 4311(c)(1), “An employer may not discriminate in employment against or take any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under this chapter, has testified or otherwise made a statement in or in connection with any proceeding under this chapter, has assisted or otherwise participated in an investigation under this chapter, or has exercised a right provided for in this chapter.”

In cases where discrimination is alleged under USERRA, the employer or prospective employer bears the burden to “prove that the action would have been taken in the absence of such membership, application for membership, or obligation.”

For more information about USERRA, visit