USERRA: Know Your Employee Rights as Active Duty or Veteran Military

Chelsy Meyer  | 

Being a member of the military requires sacrifice. Those that choose to spend any portion of their lives in the armed forces do so accepting the risks and rewards associated with life in active duty and as a veteran. Because of the special circumstances involved with serving, military members are given a number of protections and perks to make life a bit easier during or after serving. One of those protections is with the USERRA: The Uniformed Services Employment and Reemployment Rights Act. It’s important that all military members, as well as employers, are aware of this act that protects service members who leave civilian employment positions to undertake military service.

USERRA: The Uniformed Services Employment and Reemployment Rights Act

Under many other circumstances, when an employee leaves their position for an extended period of time, that employee isn’t guaranteed their job back. However, some people are given protection from job loss in certain situations. Service members are in that class of people who are protected from losing their employment position if they voluntarily or involuntarily leave to complete military service. There are stipulations for both employers and military members to follow if an employee needs to leave to serve, but the USERRA is the primary legal tool protecting military employees and regulating employers of military members and veterans.

USERRA Military Leave

Having to take leave for military service is really the core of the USERRA. However, there are guidelines and stipulations that will help employers be prepared for a military employee to take leave and for their return.

 

  • How Long Can Military Employees Go On Leave Under USERRA?

 

Employment protections allow for up to five cumulative years of military leave for employees. This can be used for extended duty leave as well as training for reservists. After five years, that servicemember no longer meets the eligibility criteria for reemployment. However, those 5 years will restart under a different employer.

 

  • Responsibilities of Military Employees Preparing for Deployment

 

The USERRA at its core is there to protect the rights of military members retain employment while fulfilling military related duties. However, there are also eligibility requirements to help employers who employ military members understand their rights as well. Not every military member will be eligible to retain employment. Military employees preparing for deployment must give their employer advance written or verbal notice. There is no specific time frame set for notice due to situations that give servicemembers no forewarning. They do not need to show orders, though they may need to provide proof of military duty if the employer requires it.

Reemployment Rights: Getting Your Civilian Job Back

After you’ve left for drill or for a longer leave to serve, there are laws protecting military member’s civilian employment status. However, the servicemember has to follow certain eligibility requirements as well. As long as those are met, service members have rights by law to get their job back in a timely manner and a position they deserve.

 

  • Your Right to Prompt Reinstatement

 

As long as you return to work in a timely manner as a qualification for reemployment under the USERRA, your employer has to reinstate you into your previous position in a timely manner as well. There is not a set amount of time for reinstatement, but the timeframe must be reasonable. It tends to be about two weeks or less after their return. Thankfully, one of the many perks of hiring those who serve in the military is their great work ethic, so many companies look forward to having them back and are flexible with their return.

 

  • The Escalator Principle: Getting the Seniority and Pay Rate You Deserve

 

The escalator principle says that each returning service member be employed in the position the person would have had with reasonable certainty if they had remained employed, with full seniority. On the other hand, depending on economic circumstances or layoffs, the position could be at a lower level than the one previously held. It might be a different job, or it could conceivably be in layoff status. In other words, the escalator can move up or down.

USERRA Rights for Disabled Vets

The USERRA protects a servicemember in a few different instances. Another one of those instances is in the case of service connected disabilities. If you leave for service and come back with a disability, the USERRA protects you from wrongful termination and ensures proper training measures are taken. Not only that, but the Americans with Disabilities Act protects disabled vets as well.

 

  • What to Do If You Are Injured on Deployment

 

Leaving for service and coming back with a service connected disability is extremely difficult in a number of ways. However, as a way to protect these veterans, the USERRA requires an employer to make reasonable efforts to accommodate people with a disability incurred during service. If you can’t be accommodated, the employer is to employ the person in another position they are qualified to perform at the nearest approximation of the position they had before. If there are any signs of discrimination, legal action can be taken.

 

  • Americans with Disabilities Act and Veteran Status: Know Your Rights

 

Discriminating against anyone with a disability, veteran or not, is a crime. The Americans with Disabilities Act (ADA) was created to prohibit people from refusing to hire, fire, or treat someone unfairly because they have a disability. As a veteran, not only is the USERRA protecting you, so is the ADA. Knowing exactly what you’re entitled to and what your rights are will ensure fair treatment by employers or legal action can be taken. If you fall outside of the eligibility criteria for reemployment or the situation is ambiguous, the ADA may be more relevant than the USERRA.

Choosing to serve in the military as in the Reserves or deploying as active duty is not something that should be punished once a servicemember returns home. Fore that reason, the USERRA works to protect all military members who maintain a civilian career as well. Not only should employers follow the laws created to protect service members, but military members should also be aware of their rights to employment once they return.


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Chelsy is a writer from Montana who now lives in Boise, Idaho. She graduated with her journalism degree from the University of Montana in 2012. She enjoys talk radio, cold coffee, and playing Frisbee with her dog, Titan. Follow Chelsy on Twitter @Chelsy5

This post was updated March 9, 2018. It was originally published February 9, 2018.