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Protecting Those Who Serve: USERRA

03/07/07

The Department of Defense says it called up 38,649 members of the National Guard and Reserves in the second week of February. That brings the number of reservists called to active duty to 150,252.

If the current call-up hasn’t affected your organization yet, just wait. With military action in Iraq looking more and more likely, and with more than a million reservists waiting in the wings, additional call-ups are just about guaranteed.

USERRA: Flak Jacket for Reservists and Veterans
USERRA—the Uniformed Services Employment and Reemployment Rights Act—provides a multitude of protections for your employees who also happen to be in one of the uniformed services. It is the law that ensures, for instance, that employers permit reservists leave to take part in annual training or respond to a call to active duty.

USERRA, which covers virtually all U.S. employers, is as much or more about the reservists’ return to work as it is about their departure. According to Steve Bernstein, a USERRA expert and attorney with Fisher & Phillips, LLP, “The law essentially requires employers toprovide job-protected leave, much like the Family and Medical Leave Act.”

USERRA Must-Dos
When it comes to employees in uniform, employers must:

  • Continue to pay for health insurance (assuming you already do) during leaves of thirty days or less. After that, you must offer continuation of health coverage under COBRA.

  • Give employees their jobs back once they return from duty. However, says Bernstein, “Reemployment is not required if an employer’s circumstances have changed so much that it would either be impossible or unreasonable to reemploy the returning veteran.” He points to a layoff that would have affected the employee as an example.


    • Also, you need not hold a particular job open longer than ninety days, but you must offer the returning employee one just like it or one of similar seniority, status, and pay—as long as the employee is qualified. If the employee is not qualified, says Bernstein, “Employers must make reasonable efforts to retrain returning service members to refresh or upgrade their skills so that they might qualify for reemployment.”
  • Accommodate any service-connected disabilities. Plus, you must keep a job open for two years if an employee incurs a disability (or worsens one) while in the line of duty.

  • Offer promotions or other seniority-based job benefits upon return that employees would have received had they remained on staff. The government calls this the “escalator” principle: Returning employees must be allowed to step on the escalator at the point they would be had they never left.

  • Maintain pension plans while employees are away. The law says that a re-employed person “must be treated as not having incurred a break in service with the employer maintaining a pension plan.”

  • Permit an employee to use vacation or other PTO while on leave. Adds Bernstein, “Although service members are allowed to use any accrued vacation or other available paid leave, they cannot be required to do so.”
What About Pay?
USERRA is equally clear regarding what you do not have to do while an employee is called away on active duty:
  • You don’t have to pay the employee. Some companies, like IBM, do however choose to make up the difference between employees’ military pay and their company pay. Also, keep in mind that some states require you to pay reservists on duty, at least for a certain amount of time.

  • You don’t have to allow vacation days or other paid time off to accrue—unless you allow such accrual with other forms of leave (like FMLA).
Brief Supervisors
Steve Bernstein says employers with reservists on staff should remind supervisors and managers of their obligations under USERRA. “Beyond that, take steps to ensure that you extend health benefits and continue insurance in compliance with the law. Going forward, you should also remind people replacing departing service members that veterans will have a claim on the job when they come back.” Bernstein also recommends that employers review forms, policies, programs, and procedures that may apply to veterans, reservists, and National Guard members.

Finally, take care to stay within the law. Violations of USERRA can result in back pay and attorney’s fees—and “willful” violations may result in double damages.

USERRA has many wrinkles that require you to be on your toes when it comes to handling the military personnel and veterans on your staff. G.Neil has put together an exclusive USERRA Kit that provides clear guidelines for employers and prepares you to meet your legal obligations to employees.