The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, Pub.L. 103-353, codified as amended at 38 U.S.C. §§ 4301–4335) was signed into law by U.S. President Bill Clinton on October 13, 1994 to protect the civilian employment of non-full time military service members in the United States called to active duty. The law applies to all United States uniformed services and their respective reserve components.
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USERRA clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute by protecting civilian job rights and benefits for veterans, members of reserve components, and even individuals activated by the President of the United States to provide Federal Response for National Emergencies. USERRA also makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms, and adding Federal Government employees to those employees already eligible to receive U.S. Department of Labor assistance in processing claims of noncompliance.
USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years. The exceptions to the five-year limit include initial enlistments lasting more than five years, periodic United States National Guard and reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service as long as the basic eligibility criteria are met.
USERRA also provides protection for disabled veterans by requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
USERRA applies to all employers in the United States. This includes Federal, State, Local, Private and even Foreign Companies operating within the United States and its territories. USERRA also applies to all United States employers operating in Foreign countries.
Returning service-members are to be reemployed in the job that they would have attained had they not been absent for military service, this is known as the "escalator principle" (See FISHGOLD v. SULLIVAN DRYDOCK & REPAIR CORP., 328 U.S. 275 (1946) ), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also mandates that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights and benefits accorded other individuals on comparable types of non-military leaves of absence.
Health and pension plan coverage for service members is provided for by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making explicit that all pension plans are protected.
The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.
USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty.
The US Department of Labor through the Office of the Assistant Secretary for Veterans' Employment and Training [http://www.dol.gov/vets/aboutvets/asec/ciccolella.htm(VETS) provides assistance to all persons having claims under USERRA, including Federal and Postal Service employees. If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant. Federal and Postal Service employees may have their claims referred to the Office of Special Counsel for consideration of representation before the Merit Systems Protection Board (MSPB). If violations under USERRA are shown to be willful, the court may award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail. Because USERRA is a relatively recent statute, not much case law interpreting it or its corresponding regulations has been developed.
On Jan. 1, 2008 a five-year pilot project ended that had given the Office of Special Counsel shared responsibility with The Department of Labor for assisting federal employee USERRA claimants in initial claims. All claims must now be filed directly with the Department of Labor [1]
There were many deficiencies within USERRA that affected those in the National Guard and Reserves. In October 2007, Mathew B. Tully, an attorney practicing military law, himself a Major in the National Guard, was called to give testimony to Congress on these flaws within USERRA. On August 1, 2008 these flaws were addressed and many repaired with the introduction of legislation by Senator Barack Obama and Senator Edward Kennedy. This new legislation is referred to as the Servicemembers Access to Justice Act of 2008.
This article contains information that originally came from a US Government website, in the public domain.