Veterans Reemployment Rights

Uniformed Services Employment Rights Act (USERRA) here are the answers to frequently asked questions on the Uniformed Services Employment Rights Act.  This material is for your information only and should not be considered a legal authority.

 1.     Is there a law governing a service member’s right to reemployment after his or her completion of military training or service?  

Yes.  Since 1940, there has been a law known as the Veterans’ Reemployment Rights (VRR).  On October 13, 1994 , President Clinton signed the Uniformed Service Employment Rights Act, a comprehensive revision of VRR.  USERRA became effective December 12, 1994 and is contained in Title 38, United States Code, at Chapter 43 (4301 through 4333)

2.  Who is eligible for reemployment rights under USERRA following military service? 

The individual must meet five conditions or “eligibility criteria.”  The individual:

*Must hold or have applied for a civilian job.  (Note: If employers can show jobs are to be held for a brief, nor recurrent period, with no reasonable expectation of continuing for a significant period, they may not qualify for protection.)

 *Must provide written or verbal notice to the civilian employer prior to leaving the job   for military training or service except when precluded by military necessity.

 *Must not have exceeded the five-year cumulative limit on periods of service

 *Must have been released from service under conditions other than dishonorable.

 *Must report back to the civilian job in a timely manner or submit a timely application for reemployment.

 3. What is an employer required to provide to a returning service member  upon reemployment? 

There are four basic entitlements: (if the eligibility criteria in answer are  met)

*Prompt reinstatement (generally a matter of days, not weeks, but depends on the length of absence). 

*Accrued seniority, as if continuously employed. This applies to rights and benefits determined by seniority as well.  This includes status, rate of pay, pension vesting and pension benefit credit.

 *Training or retraining and other accommodations.  This would be particularly  applicable in case of a long period of absence or service-connected disability.

 *Special protection against discharge, except for cause.  This period of protection is   180 days following periods of service of 31 to 180 days and one year for periods     of service of 181 days or more.  

4. Are there reemployment rights following voluntary military service?     State call-ups?

USERRA applies to voluntary as well as involuntary military service, in peacetime as well as in wartime.  However, like the VRR law, USERRA does not apply to State call-ups of the National Guard for disaster relief, riots, etc.  Any protection for such duty must be provided by State Law (4303).

 5. When is prior notice to the civilian employer required? How is such notice given?  

The person who is performing the Service (or an official representative of the uniformed service) must give written or verbal notice to the employer.  The notice requirement applies to all categories of training or service.  Notice is not required if precluded by military necessity or, if the giving of such notice is otherwise impossible or unreasonable.  For assistance in making this notice, call 303-844-2151.

 6.      Can an employee be required to use earned vacation while performing military service?

No.  A person may not be forced to use earned vacation.  Employees are entitled to earned vacation or leave in addition to time off to perform military service.  A rare exception would be a case where there is a standard plant shutdown at a certain time of year and all employees must take their vacations during that period and an employee’s period of military service happens to coincide with that period.

 7.      After the completion of military service what is the time frame within which a person has to report back to work or apply for reemployment?  

For periods of up to 30 consecutive days, the person must report back to work for the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and safe transportation home, plus an 8 hour period of rest.  If reporting back within this deadline is “impossible or unreasonable” through no fault of the employee, he or she must report back as soon as possible after the expiration of the 8 hour period.  

After a period of training of 31 to 180 days, the person must submit a written or verbal application for reemployment with the employer not later than 14 days after completion of the period of service.  If submitting the application within 14 days is “impossible or unreasonable” through no fault of the employee, he or she must submit the application as soon as possible thereafter.

 After a period of service of 181 days or more, the person must submit an application for reemployment not later than 90 days after completion of the period of service.  These deadlines to report for work or apply for reemployment can be extended up to two years to accommodate a period during which a person was hospitalized for or convalescing from an injury or illness that occurred or was aggravated during a period of military service (Section 4312).  

In either case, the person does not automatically forfeit the right to reemployment, but will be “subject to the conduct rules, established policy and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.”