HR Support on Ensuring USERRA Compliance

Editor's Note: Comply with the many employer obligations under USERRA.

Melissa S. BurdorfOverview: The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that is intended to encourage individuals to participate in uniformed service while minimizing the disruption to an employer's business operations. Uniformed service includes full-time National Guard duty, active duty, active and inactive duty for training, certain funeral honors and attending military service academy. Several states have comparable laws whose definition of uniformed service includes state National Guard duty. USERRA also requires employers to promptly reemploy employees who serve in the uniformed services and prohibits discrimination and retaliation against individuals who serve in or who are affiliated with the uniformed services.

Almost all public and private employers must comply with USERRA. In fact, those who have control over an employee's employment opportunities or whom an employer has delegated the performance of employment-related responsibilities must comply with USERRA; therefore, supervisors, managers and HR professionals may be held individually liable for USERRA violations. Undoubtedly, proper training is critical.

Employers should be mindful that in certain situations, USERRA will overlap with other federal and state laws, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). For example, although employees are eligible to take FMLA leave only if they have worked at least 1,250 hours in the 12 months prior to the FMLA leave, employees who serve in the uniformed services are entitled to credit for hours they would have worked if not for military leave. Moreover, in addition to the benefits USERRA provides to employees who serve in the military, the FMLA has two military-related leaves (military caregiver leave and military exigency leave) that apply to employees with family members serving in the military.

Trends: With so many US employees currently overseas on uniformed services leave, the Department of Labor (DOL) and the Department of Justice (DOJ) strongly believe that these servicemembers should not sacrifice their civilian job in order to serve their country. In response, the DOJ is actively suing employers that do not comply with USERRA.

Since the federal Defense of Marriage Act (DOMA) was struck down and many states are legalizing same-sex marriage, employers in those locations should update their family military leave policies to include same-sex spouses.

Author: Melissa S. Burdorf, JD, Legal Editor

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    Date:
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