|
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.
| 
