NEWS | Aug. 25, 2015

Uniformed Services Employment and Reemployment Rights Act

By 628th Air Base Wing and 315th Airlift Wing Legal Offices

Are you a reservist or guard member who has an employer who is upset with your absence due to military service?  The Uniformed Services Employment and Reemployment Rights Act found at 10 U.S.C. § 4301-4335 and 20 C.F.R.  § 1002, protects people who are absent from their civilian job due to military service.  Possible discrimination includes refusing to hire a person because of military service, denying benefits because of absence due to military service or terminating employment because of military service.  Although USERRA applies to veterans and to active duty members who left civilian jobs to serve on active duty for four years, this article focuses on the law's protections for reserve and guard members.  

USERRA protects reservists and guard members from employment discrimination and termination due to their voluntary or involuntary federal military service as long as they meet certain conditions of eligibility.  First, the civilian employment can either be full-time, part-time, or contractual.  Temporary or brief, non-recurring jobs are not protected under USERRA.  Second, notice must be given to the employer either orally or in writing before leaving to complete military service.  Although, the amount of notice (i.e. two weeks, 30 days, etc.) is not specified under the law, it is recommended that adequate notice be provided (when possible) so that your employer can prepare for your absence.  It is also recommended that you provide written notice so there is proof that you followed the rules.  Third, unless an exception applies, the military service must not exceed a total of five years for the duration of your employment by the same employer.  Fourth, the service characterization for your military service must be under honorable conditions.  Finally, there must be a timely return to your civilian job after your service obligation ends.

The requirements for timely reporting back to civilian employment after completing military service depend upon the length of military service.  For service less than 30 days, you must return to your civilian job the first full regularly scheduled work period after the first calendar day of your return home, including eight hours of rest.  For 31 to 180 days of military service, you must notify your employer of your application for reemployment within 14 days of completion of service.  If your military service exceeds 180 days, you must apply for reemployment no later than 90 days after completion of service.  Although your employer may not require you to provide a copy of your orders prior to your absence, your employer may request a copy of your orders, the characterization of your service and proof of your timely application for reemployment , if your military service was more than 30 days. 

Anyone meeting the qualifications of reemployment under USERRA is entitled to receive prompt reinstatement, with any accrued seniority, status, rate of pay or pension vesting that would have occurred had he/she never left, and any training required to be able to perform the job.  Additionally, if the military service was 31 to 180 days, the person cannot be terminated except for cause for 180 days after his/her reemployment.  If the military service was more than one year, the person cannot be terminated except for cause for one year after his/her reemployment.

If you feel you have suffered a USERRA rights violation, please make an appointment with the legal office to discuss your options for filing a complaint with the U.S. Department of Labor.  Legal assistance appointments are available at the Air Base on Tuesdays from 12 to 2 p.m. and Thursdays from 8 to 10 a.m. Walk-in legal assistance is available at the Weapons Station on Mondays from 8 to 11 a.m. (please arrive by 10:30 a.m.).  Appointments are available at the Weapons Station on Fridays from 8 to 11 a.m.  All appointments can be made by calling 843-963-5502 or 843-794-7500.   Reserve members can make appointments to receive legal assistance from 315 AW/JA on Saturday and Sunday afternoons during UTA weekends by calling 843-963-5564.