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The Uniformed Services Employment and Reemployment Rights Act

What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides employment protections for individuals who serve or have served in the United States military, including the National Guard and Reserves. The law was enacted in 1994 and administered by the United States Department of Labor's Veterans' Employment and Training Service (VETS).

VETS designed the USERRA to ensure that individuals who leave their civilian jobs to serve in the military can return to their jobs without facing discrimination or adverse employment consequences. The law provides a wide range of protections, including: 

  • The right to be reemployed in the same position or a position of similar seniority, status, and pay

  • The right to receive any pay raises or promotions that would have been received if the employee had not been absent for military service

  • The right to receive any benefits that would have been earned during the period of military service

In addition to these protections, USERRA prohibits discrimination against employees and job applicants based on their military service or affiliation. This means employers cannot refuse to hire, promote, or retain individuals based on their military service or obligations.

USERRA applies to all employers in the United States, regardless of size, and to all individuals who serve in the military, including those on active duty, in the National Guard, or the Reserves. The law also provides protections for individuals who are disabled as a result of their military service, as well as for family members of service members.

Employer Responsibilities Under the USERRA

As an employer, it's essential to understand your obligations regarding employees who take military leave. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees who take military leave are entitled to the same rights and benefits as non-military employees who take comparable forms of leave. However, determining what is considered a comparable form of leave can be challenging.

Generally, a comparable form of leave is of a similar duration. For example, if you provide paid leave for one to five days of jury service or up to a week of bereavement leave, you should also pay for a military leave of that approximate duration. Similarly, if you provide longer paid leaves, such as a four- to eight-week family wellness leave, then you should consider paying for a military leave of that approximate duration as well.

If you are still determining whether the other leaves you offer are comparable, speaking with an attorney is recommended. Ensuring that you are meeting your legal obligations as an employer is essential.

If there are no comparable paid leaves, nonexempt employees do not need to be paid for military leave. Exempt employee pay requirements will depend on the duration of the leave and when it falls in the workweek.

Employers cannot require employees on military leave to use their paid time off benefits during absences. However, employees can use their paid time off to cover their absence.

Regarding exempt employees, employers may not reduce their salary for partial week absences for military leave per the Fair Labor Standards Act (FLSA). If an exempt employee does not work during the week, they would only need to be paid if you would pay for a comparable leave.

It's important to note that you can reduce an exempt employee's salary by any payment they receive for their military service during the workweek when they are absent.

It's crucial to ensure that you are following the law and providing your employees with the benefits they are entitled to while on military leave. Failure to do so could result in legal action and negative impacts on employee morale and loyalty.

Handling employee pay on military leave can be a complex issue. As an employer, it's essential to understand your obligations under USERRA and other laws and regulations. Providing comparable pay and benefits can help maintain employee morale and loyalty and ensure compliance with legal requirements. If you have any doubts about your obligations, consult an attorney.

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