Actively engaged in civilian employment. USERRA protects members of the uniformed services during employment. Employers cannot take military service into account when they fire, discipline, promote, or award benefits to employees. In addition, employees may not be retaliated against for exercising their USERRA rights, for filing a complaint under USERRA, or for assisting others in exercising their USERRA rights. For instance, if an employee believes his USERRA rights have been violated and files a complaint, the employer may not respond by firing, demoting, or otherwise retaliating against him.
Examples of discrimination include:
- An employee not being promoted because she may be absent in the future due to military service;
- An employee not being awarded a employer-wide raise or bonus because he was away on military duty for any or all of the applicable rating period;
- An employee being disciplined because he had to perform military duty during working hours.
Returning from military deployment. USERRA helps returning service members become re-employed in the job they left. A service member must simply request reemployment and report back to work in a timely manner. The timeframe for this depends on how long the service member has been absent:
- For absences of 1-30 days, the service member is allowed time to travel home, plus 8 hours of rest, and must then report to work on the next working day.
- For absences of 31-180 days, the service member has 14 days to contact the employer and request reemployment.
- For absences of more than 180 days, the service member has 90 days to contact the employer and request reemployment.
- Extra time is allowed if the service member is recovering from an injury suffered during military service.
Once a request for reemployment is made, the service member must be reemployed promptly (if federally employed, he must be reemployed no later than 30 days after his request). If a service member does not make a timely request for reemployment, she is still entitled to prompt reemployment, but may be subject to discipline by her employer in the same manner as other employees with unauthorized absences.
An employee may perform up to five years of military service and still be fully entitled to reemployment. This is a cumulative total and starts over every time the employee switches employers. For example, if a member of the National Guard has separate deployments lasting six months, one year, and three years with one employer (for a total of 4 ½ years with that employer), and then changes jobs and is deployed for an additional two years, she is entitled to reemployment each time she returns. In addition, there are many exceptions to this five-year limit that exempt certain types of service from counting toward the five-year total. Once a service member reaches the five-year limit, they may still be reemployed, but would be subject to discipline by the employer, as with an untimely request for reemployment.
In addition to exceeding the five-year limit, there are a few other instances in which service members are not entitled to reemployment:
- If they receive an unfavorable discharge from the military, such as a discharge for bad conduct.
- If their original job (before deployment) was temporary, with no reasonable expectation that it would continue indefinitely or for a significant period. For example, a service member who spends a day painting fences for a home-improvement contractor would not be entitled to reemployment.
- If a change in the employer’s circumstances makes reemployment impossible or unreasonable. For instance, if a service member returns from service to find that her former employer is going bankrupt and has laid off 90 percent of its employees, she may not be entitled to a job there. (However, if she worked for the federal government, she may be entitled to a job in another agency with assistance from the Office of Personnel Management.)
- If an injury suffered by the employee would create an “undue hardship” on the employer, meaning that accommodating the employee would be unreasonable or impossible for the employer. (If she worked for the federal government, she may be entitled to a job in another agency with assistance from the Office of Personnel Management.)
Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. Generally, the employee must be given the position she would have held had she remained continuously employed. (This is often referred to as the “escalator principle.”) This may result in a promotion or other advancement. If an employer thinks that a service member is not qualified to perform this job, the employer must provide training or other experience to boost the employee’s skills to the required level. If the employee cannot be trained through reasonable efforts, she is still entitled to her former position.
In some cases, where the employee was absent for more than 90 days due to military service, the employer may choose to reassign the employee, but it must be to a job of similar seniority, status, and pay as the employee’s former position.
Returning service members are also entitled to receive benefits and seniority as though they had remained continuously employed. For instance, if an employee works at a company for two years and then completes one year of military service before returning, her employer must treat her as though she had worked continuously for three years when calculating the following benefits:
- Paid leave (although no leave is accrued while the employee is absent)
- Credit toward completing probationary periods
- Eligibility for promotions
- Anything else that is tied to the employee’s longevity at the workplace
In addition, returning service members have added job security. If they were absent for 31-180 days, they are protected against being terminated without cause for six months. If they were absent for more than 180 days, they are protected against being terminated without cause for one year. However, all returning service members can be terminated for cause at any time. USERRA does not protect service members if, for instance, they improperly miss work for reasons not related to their military service.