The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 USC 4301 et. seq., provides reemployment rights to members of the Armed Forces, including the National Guard, who temporarily leave their civilian job to perform military duty.
To obtain reemployment rights under USERRA, you must provide notice to your civilian employer before leaving for military duty. Prior notice is excused if precluded by military necessity or if giving notice is impossible or unreasonable.
To qualify for reemployment rights under USERRA, your cumulative absence due to military service cannot exceed five years. This five-year cumulative service total is per employer. For the National Guard and Reserves, the two-week annual training and monthly weekend drills do not count toward the five-year cumulative service limitation. Further, service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress is also exempt from the five-year limitation. This includes individuals who are involuntarily ordered to active duty and individuals who volunteer for such duty and receive orders to active duty.
After conclusion of your military duty, you must promptly return to work. What is considered a prompt return depends on the length of your military duty which resulted in your absence from work.
Military duty of 1 to 30 days: You must report back to work at the first shift beginning after safe travel time from your military duty site plus eight hours rest.
Military duty of 31 to 180 days: You must request reemployment within 14 days after completing your military duty.
Military duty of 181 days or more: You must request reemployment within 90 days after completing your military duty.
To be entitled to reemployment rights under USERRA, you must have received an Honorable or General Discharge when you left active duty.
The Position You Are Entitled to Upon Return
The specific position that you are entitled to upon returning to work depends on the length of your duty.
Military duty of 1 to 90 days: You are entitled to the same position you would have held had you remained continuously employed.
Military duty of 91 or more days: You are entitled to the same position you would have held had you remained continuously employed or a position of like seniority, status, and pay.
Escalator principle: USERRA provides that you step back onto the seniority escalator at the point you would have occupied if you had remained continuously employed. For example, if you would have been promoted based on your seniority had you not been absent, you are entitled to the promotion upon reinstatement. If, however, you would have been laid off had you remained continuously employed, you may return to work in layoff status.
Retraining: Your employer must provide refresher training, and any training necessary to update your skills if you are no longer qualified for the job due to technological advances.
If unable to retrain: If you, after reasonable retraining efforts, are unable to qualify for the position that you would have held had you remained continuously employed, your employer must place you in a position of equivalent or nearest approximation and pay that you are qualified to perform.
Under USERRA, you are entitled to continue your health benefits while on leave. If your health plan terminates because of your absence due to military service, you may elect to continue your health plan coverage for up to 24 months. You can't be required to pay more than 102% of the full premium for your coverage. If your military service is 30 days or less, you can't be required to pay more than the normal employee share of the premium.
Upon reinstatement to employment, your health benefits must be immediately reinstated. A waiting period or pre-existing condition exclusion can't be applied to you.
While absent from work on military leave, you are deemed to be on a leave of absence or furlough and are entitled to the benefits generally provided to employees having similar seniority, status, and pay who are on furlough or leave of absence.
Your employer must count any period of military leave protected under USERRA as if it were in continuous service with the employer. Your military leave time should be credited toward any benefit eligibility vesting and to any benefit calculations. For example, if you accrue leave at a faster rate for each year of service, your time on military leave must be credited toward your leave accrual rate. Your employer, however, doesn't have to give you the leave you would have accrued while on military leave.
You may use accrued vacation leave while on military leave, but your employer cannot require you to do so.
If your pension plan or 401(K) plan allows for employee contributions, upon return you must be provided up to three times the period of absence, up to 5 years, to make up the contributions.
Special Protections Against Discharge Upon Return from Military Leave
Upon your return to work you cannot be discharged without cause for up to six months if your military duty was 31 to 180 days, and you cannot be discharged without cause for up to 12 months if your military duty was 181 days or more.
If you believe that you have been a victim of a USERRA violation, you may file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS). VETS is authorized to investigate and resolve complaints of USERRA violations.
You can contact VETS at 866-4-USA-DOL or visit its website.
If VETS is unable to resolve your complaint, you may request that your case be referred to the U.S. Department of Justice for representation.
You may also bypass the VETS process and file a lawsuit alleging violations of USERRA.
You may also mediate your dispute with your employer by contacting Employer Support of the Guard and Reserve. ESGR is an agency of the Department of Defense. ESGR's Ombudsman Services Program provides a means by which disputes arising under the USERRA can be informally mediated between employers and their Guard and Reserve employees.
Michigan Law, MCL 32.271, et. seq., provides similar employment protections to those provided under USERRA. Unlike USERRA, however, Michigan law also covers state military service performed by members of Michigan National Guard by Order of the Governor. Most military service performed by members of the National Guard, including drills and annual training, are covered by both USERRA and Michigan law.
USERRA provides that an employer may not deny you initial employment because of your past, present, or future military service. USERRA's anti-discrimination provision also provides that your current employer shall not terminate your employment, fail to promote, or fail to provide you any benefit of employment because of past, present, or future military service. Further, USERRA prohibits your employer from taking retaliatory action against you for seeking to enforce your USERRA rights.
The same USERRA enforcement mechanisms (VETS or private action) mentioned under the reemployment rights section also apply if were you were discriminated against in violation of USERRA.
As with your reemployment rights, Michigan law provides similar anti-discrimination protections. While most military service performed by members of the National Guard is covered by USERRA, Michigan law also covers state military service performed by Order of the Governor.