Understanding USERRA: Essential Protections for Service Members and Employment Implications

Thank you Cynthia Price for your question!

We recently discovered that one of our temporary employees is out for two weeks on military reserve duty.  This employee is a temporary employee who is paid by us but who is not benefits eligible. Is this employee still eligible under USERAA and if so, should we open a leave of absence for the temporary employee so we can track his USERAA?

Yes, this employee is eligible under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA provides protections for employees who serve in the uniformed services, including temporary employees. The law mandates that employers must grant leave to employees who are called to military service and must reemploy them upon their return, provided they meet certain criteria.

Given that the temporary employee is out for military reserve duty, you should:

  1. Open a Leave of Absence: Track their leave under USERRA to ensure compliance and proper documentation.
  2. Maintain Records: Document the start and expected end date of the military service, the employee’s status, and any communication related to the leave.
  3. Ensure Reemployment Rights: Be prepared to reemploy the temporary employee in their position or a similar position upon their return, as long as they meet USERRA requirements for reemployment (Returning within 5 years and not being dishonarable discharged)

Tracking the leave will help you stay compliant with USERRA regulations and support the employee’s rights while they fulfill their military obligations.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a critical piece of legislation that provides robust protections for service members in the United States. Enacted in 1994, USERRA ensures that individuals who serve or have served in the Armed Forces, Reserves, National Guard, or other uniformed services are not disadvantaged in their civilian careers due to their service. The act also mandates that service members are promptly reemployed in their civilian jobs upon return from duty, protecting their employment and benefits.

One of the key points of USERRA is its provision for job security. The act requires employers to rehire returning service members to the same or a similar position they would have held if their employment had not been interrupted by military service. This includes seniority, status, and pay, as well as other rights and benefits determined by seniority. This reemployment right is contingent on the service member providing advance notice to their employer, the cumulative length of service not exceeding five years, and timely return to work or application for reemployment. However, it is important to note that USERRA applies to all employees but does not extend its protections to independent contractors, as they are not considered employees under the act.

USERRA also offers protection against discrimination. Employers are prohibited from discriminating against individuals based on their past, present, or future military service. This anti-discrimination provision applies not only to hiring and retention but also to promotions and other benefits of employment. The act ensures that service members are treated fairly and are not disadvantaged in their civilian careers due to their military obligations. Again, these protections do not apply to independent contractors, who are excluded from the definition of “employee” under USERRA.

Another important aspect of USERRA is the protection of benefits. The act requires that service members be allowed to continue their existing health insurance coverage for themselves and their dependents while on military duty for up to 24 months. Additionally, USERRA mandates that pension plans must be protected, ensuring that returning service members can make up missed contributions and continue accruing benefits as if they had never left their civilian jobs. This benefit protection is another area where the distinction between employees and independent contractors is crucial, as independent contractors are not covered by USERRA.

Overall, USERRA is a comprehensive act designed to safeguard the employment and reemployment rights of service members, ensuring they are not penalized for serving their country. It provides essential protections and guarantees that help service members transition smoothly between their military and civilian careers, maintaining the stability and security of their employment and benefits. The exclusion of independent contractors highlights the act’s focus on traditional employment relationships and underscores the importance of understanding employment status in the context of USERRA protections.