PL 103-337: What Are Your Reemployment Rights?

Public Law 103-337, the National Defense Authorization Act for Fiscal Year 1995, contains the Uniformed Services Employment and Reemployment Rights Act (USERRA). This federal law establishes the employment and reemployment rights for individuals who serve or have served in the uniformed services. USERRA minimizes career disruptions for service members by protecting their jobs and benefits while on duty. The law applies to all U.S. public and private employers, regardless of size, and prohibits discrimination based on military service.

Eligibility for USERRA Protections

To qualify for USERRA protections, an individual must meet five criteria. The “uniformed services” include the Army, Navy, Air Force, Marine Corps, Coast Guard, their reserve components, and the Public Health Service Commissioned Corps. This covers various duties, such as active duty, training, and funeral honors duty.

The five eligibility requirements are:

• The person must have been absent from a civilian job to perform service in the uniformed services.
• The service member must have provided their employer with advance notice of their military service.
• The cumulative length of absence from a single employer for military service must not exceed five years, though some exceptions apply.
• The service member’s separation from service must have been under honorable conditions, as a disqualifying discharge makes an individual ineligible.
• The individual must report back to work or apply for reemployment in a timely manner after their service is complete.

Service Member Notification Requirements

Service members must provide their employer with advance notice to preserve their reemployment rights. USERRA stipulates that this notice can be delivered either verbally or in writing. It does not need to follow a specific format, and an employer cannot require the employee to use a standardized form. The notice can be provided by the employee or by an appropriate officer from the military branch in which the individual will be serving.

This notification is a statement of the employee’s upcoming military obligation, not a request for permission to leave. While the law encourages providing notice as far in advance as is reasonable, it does not set a specific timeframe.

There are limited exceptions to this notification requirement. Notice is not required if military necessity prevents it, such as in cases of classified operations where public knowledge could compromise the mission. It is also excused if giving notice is otherwise impossible or unreasonable under the circumstances.

Employer Reemployment Obligations

Upon a service member’s return, employers have specific obligations for prompt reemployment based on the “escalator principle.” This principle dictates that the returning employee must be restored to the job, including seniority, status, and pay, that they would have attained if they had not been absent for military service. This could mean reemployment in a higher position if a promotion would have likely occurred.

The timeframe to apply for reemployment is tied to the length of military service. For service of 1 to 30 days, the employee must report to work on the next full workday after safe travel home and an eight-hour rest period. For service between 31 and 180 days, the individual has 14 days to submit an application, and for service of more than 180 days, the application period is 90 days.

Employers must make reasonable efforts, such as providing training, to help the employee become qualified for their escalator position. If the employee cannot qualify, they must be reinstated in the position they held before leaving or a similar one. An employer is only excused if their circumstances have changed so significantly that reemployment would be impossible or impose an “undue hardship.”

Associated Rights and Protections

USERRA also provides other rights and protections, including the continuation of health insurance. An employee can elect to continue employer-sponsored health coverage for up to 24 months while on military duty. For service of 31 days or more, the employee may be required to pay up to 102% of the full premium, and upon reemployment, coverage must be immediately reinstated without waiting periods.

The law also safeguards pension plan benefits. A period of military service must be counted as service with the employer for vesting and benefit accrual, and the employer must fund any pension benefits that would have accrued. For plans like a 401(k), contributions are based on the pay rate the employee would have received if they had remained employed.

USERRA provides protection against discrimination based on military status in hiring, promotion, and retention. The law also offers protection from discharge without cause after returning to work. If military service was between 31 and 180 days, the employee is protected for 180 days; if service was for 181 days or more, this protection extends to one year.