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(38 USC §§4301 through 4333)
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed on October 13, 1994. The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services" as well.
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.
The pre-service employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria:
USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills and annually scheduled active duty for training.
USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy's nuclear power program are required to serve six years).
Under USERRA, restoration rights are based on the duration of military service rather than the type of military duty performed (e.g., active duty for training or inactive duty), except for fitness-for-service examinations. The time limits for returning to work are as follows:
USERRA guarantees pension plan benefits that accrued during military service, regardless of whether the plan is a defined benefit plan or a defined contribution plan. Also, USERRA provides health benefits continuation for service members and their families during military service for up to 18 months. In addition, USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or an intent to serve.
The Veterans' Employment and Training Service (VETS) enforces USERRA. However, the law also allows an employee to enforce his or her rights by filing a court action directly, without filing a complaint with VETS.
VETS has published a fact sheet (OASVET 97-3) about USERRA. Copies of this and/or other VETS' publications, or answers to questions about USERRA, may be obtained from the local VETS office. The elaws Uniformed Services Employment and Reemployment Rights Act (USERRA) Advisor helps veterans understand employee eligibility and job entitlements, employer obligations, benefits and remedies under the Act. VETS has also published a non-technical USERRA Guide (. pdf) that contains general information about the law. Information on USERRA and other VETS programs may be found on the VETS Web site.
A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for "willful" violations.
USERRA does not preempt state laws providing greater or additional rights, but it does preempt state laws providing lesser rights or imposing additional eligibility criteria.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling (866) 4-USA-DOL ((866) 487-2365).