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Clear Up Common Misconceptions About USERRA

With Veterans Day observed every November 11th, the HRinDemand team would like to take the opportunity to clarify some common misconceptions about USERRA (the “Uniformed Services Employment and Reemployment Rights Act.”)

This law protects civilian employment of active-duty and reserve military members called to active-duty, including members of the National Disaster Medical System and the Commissioned Corps of the U.S. Public Health Service. One common misconception is that this law applies only to military reservists called to active duty. However, it also covers active-duty military veterans who served 5 years or less on active duty, as well as civilians who are in the process of joining active-duty or reserve military.

Unlike some federal employment laws, USERRA applies to all U.S. companies, regardless of company size, location, or the number of employees.

Servicemembers are required to give “advance verbal or written notice” of the military service to the employer; however, it is not needed when precluded by military necessity. (As an example, think of the rapid deployment of troops over the New Year’s holiday earlier this year due to U.S. tensions with Iran- those soldiers had just 18 hours’ notice of their deployment.) In rapid deployment, members of the employee’s military unit known as Rear Detachment command will inform the servicemembers’ civilian employer. Additionally, notice of military leave does not need to be written or documented – for example, annual training or drill weekends for reserve component members often do not have formal written training orders.

USERRA’s “escalator provision” requires companies to re-employ servicemembers “in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.” Translation: the employee must come back to at least the same pay, benefits, and seniority they would have had, and any pay increases, holiday pay, yearly bonuses, or promotions that the employee would have gotten if they were not serving on military duty.   

USERRA includes time frames for employees returning to civilian work after active-duty service. For periods of military service 30 days or less (such as annual training or drill weekends for reserve components), servicemembers must return to their civilian work at the next regularly scheduled shift on the day following release from military service plus 8 hours rest. For a military service period of 31 to 180 days (such as during a deployment), the servicemember must apply for re-employment within 14 days of their release from active-duty orders. Finally, with 181 days or more, the servicemember has 90 days from their release from active-duty to apply for re-employment. 

One thing to note, during the current COVID-19 pandemic, employers cannot delay a servicemember’s re-employment due to fear that the service member was exposed to COVID-19. An employer can require the servicemember to work remotely or offer them temporary company paid leave (without requiring them to use vacation time, PTO, or FFCRA leave.)

Understanding USERRA can be complicated, but the team at HRinDemand is available to answer your questions. In fact, one of our team members is very knowledgeable about military-related civilian employment issues as the spouse of an active-duty military member.

Bailey Cummins, PHR, is a member of the HRinDemand team, a human resources company in Reno, NV, offering expert guidance and easy-to-use tools to help small businesses with employment regulations, compliance, employee relations, and company growth.  

Sources:

Society for Human Resource Management. (2017,  March 9). Have Workers in the Military? The 4 USERRA Requirements You Should Know. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-userra-requirements.aspx

Society for Human Resource Management. (2020, July 21).  How to Administer Military Leave Benefits Under USERRA. https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/administermilitarybenefits.aspx

U.S. Department of Labor Veterans Employment and Training Service. USERRA – Uniformed Services Employment and Reemployment Act. https://www.dol.gov/agencies/vets/programs/userra

U.S. Department of Labor Veterans Employment and Training Service. COVID-19 Impact Uniformed Services Employment and Reemployment Rights. https://www.dol.gov/sites/dolgov/files/VETS/files/USERRA-COVID-19-Impact.pdf

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