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OASVET Fact Sheet 97-3

Job Rights for Veterans and Reserve Component Members

The Uniformed Services Employment and Reemployment Rights Act (USERRA 38 U.S.C. 4301-4333)

The Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA,

The Uniformed Services Employment and Reemployment Rights Act (USERRA) clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute.

USERRA continues the protection of civilian job rights and benefits for veterans and members of Reserve components. However, USERRA makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms, and providing federal government employees with Department of Labor assistance in processing claims.

USERRA expands the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights for five years (the previous law provided four years of active duty, plus an additional year if it was for the convenience of the government). There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service.

USERRA provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years to return to their jobs (as opposed to the one year provided by the old law).

As under the previous law, USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. However, USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. USERRA also reaffirms and clarifies that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Health and pension plan coverage for service members is clarified under USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making explicit that all pension plans are protected.

The period an individual has to make application for reemployment or report back to work after military service is now based on time spent on military duty; not on the category of service performed. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty.

The Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA, including federal and Postal Service employees.

If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant. For the first time, if violations under USERRA are shown to be willful, the court may award liquidated damages. Federal and Postal Service employees may have their claims referred to the Office of Special Counsel for consideration of representation before the Merit Systems Protection Board (MSPB). Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.

Service member employees of intelligence agencies are provided similar assistance through the agency's Inspector General.

Questions or assistance regarding rights and obligations under USERRA should be referred to the nearest VETS office listed in the phone book under U.S. Government; Labor Department.

This is one of a series of fact sheets highlighting Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion.