USERRA: Job Rights After Military Duty

Who USERRA Protects and What It Covers

USERRA covers people who serve in the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, the Reserves, the National Guard and certain public health and disaster-response service. It applies to nearly all employers, public and private, no matter how small. It covers voluntary and involuntary service, active duty, training, and time away for a fitness-for-duty exam.

The law does two main things. It bars employers from discriminating against you because of your service, and it gives you the right to be reemployed when you come back.

Your Right to Get Your Job Back

If you meet the requirements, your employer must put you back in the job you would have held if you had not been away, with the seniority, status and pay that came with it. This is known as the escalator principle. If you would have received a raise, a promotion or a step increase while you were gone, you are generally entitled to it on your return. If a service-connected disability keeps you from doing that job, the employer must make reasonable efforts to help you qualify for it, or place you in another job that fits.

To be entitled to reemployment you generally must meet these conditions:

• You gave notice

  You told your employer, in writing or out loud, that you were leaving for service. Advance notice is not required when military necessity makes it impossible or unreasonable.

• Your service stayed within the limit

  Your total military service with that employer generally cannot exceed five years, though required training, involuntary recalls and certain other service do not count toward the limit.

• You were released under honorable conditions

  A dishonorable or bad conduct discharge, or other punitive discharge, ends reemployment rights.

• You returned on time

  You reported back or applied for reemployment within the deadline for the length of your service, shown below.

Deadlines for Returning to Work

The time you have depends on how long you were away on service:

• Service of 30 days or less

  Report back by the start of the first full workday after you finish service, allowing time to travel home safely and eight hours of rest.

• Service of 31 to 180 days

  Submit an application for reemployment within 14 days after you finish service.

• Service of 181 days or more

  Submit an application for reemployment within 90 days after you finish service.

• Injury or illness from service

  The deadlines can be extended for up to two years while you recover from a condition caused or made worse by your service.

If you miss a deadline because of circumstances outside your control, you may still be protected. Applying for reemployment does not require any special form, though putting it in writing creates a record.

Seniority, Pay and Benefits

USERRA treats your time in service as if you had stayed continuously employed for seniority and for benefits that depend on seniority. Pension plans must credit the period of service, and you should not face a new waiting period before your health coverage resumes. You may choose to continue employer health coverage for up to 24 months while you are away. If your service lasted 30 days or less, you only owe the normal employee share of the premium.

You may use accrued vacation during service, but your employer cannot force you to. Employers do not have to pay your wages while you are on military leave unless they pay other employees on comparable leave.

Protection From Discrimination and Firing

An employer may not refuse to hire you, fire you, demote you, deny you a promotion or deny you any benefit of employment because of your military service, past or future. It also may not retaliate against you for asserting your USERRA rights, filing a complaint or helping someone else do so. Examples include being passed over after announcing a deployment, being scheduled out of drill weekends, or being disciplined for the time away.

After you return, additional protection from firing applies. If your service lasted more than 180 days, you cannot be fired except for cause for one year after you are reemployed. If it lasted 31 to 180 days, the period is six months. For the general rules on what a firing may look like when it is unlawful, see our guide to signs you were wrongfully terminated.

What to Do If Your Employer Pushes Back

• Put your notice and return request in writing

  Keep a copy of your orders, your discharge paperwork and any email or text about your leave and your return date.

• Record what changed

  Write down your old job title, pay, schedule and benefits, and what the employer offered when you came back.

• Ask for the escalator position in writing

  If you were offered a lower job, a pay cut or loss of seniority, ask in an email for the position and pay USERRA requires.

• Avoid waiving your rights

  Be careful before signing anything that gives up reemployment, seniority or benefits, and have it reviewed first.

• Know where to file

  You can file a complaint with the Department of Labor, or consult an employment lawyer. Retaliation is explained in our guide to <a href="/blogs/understanding-workplace-retaliation-how-to-fight-back" class="text-primary underline">workplace retaliation</a>.

Enforcing Your USERRA Rights

The Department of Labor's Veterans' Employment and Training Service investigates USERRA complaints at no cost to you. Depending on the employer, the case may be referred to the Department of Justice or to the Office of Special Counsel, or you may bring your own lawsuit in court. Federal law does not set a deadline for a USERRA claim, but evidence fades, so acting early helps. A court can order the employer to restore your position, and to pay lost wages and benefits. For a willful violation it can award an equal amount as damages, and it may order the employer to pay your attorney fees.

The Department of Labor explains the law and the complaint process on its USERRA page. Service members who also lose their job while on medical leave may have overlapping protections, covered in our guide on being fired while on medical leave.

Frequently Asked Questions