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

Latest items in USERRA

  • Military Leave Handbook Statement: Maryland

    Type:
    Employee Handbooks

    Maryland employers seeking to educate employees about the availability of military leave and demonstrate compliance with Maryland's military leave law should consider including this model policy statement in their handbook.

  • Deployment of Family Member in the Armed Services Handbook Statement: Maryland

    Type:
    Employee Handbooks

    Maryland employers with 50 or more employees seeking to advise employees about the availability of leave for service members' families and demonstrate compliance with Maryland law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Federal

    Type:
    Employee Handbooks

    Employers seeking to set forth employees' rights to take leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) in order to serve in the military should consider including this model policy statement in their handbook.

  • Family and Medical Leave Handbook Statement: Federal

    Type:
    Employee Handbooks

    Employers with 50 or more employees for 20 or more workweeks in the current or preceding calendar year and that are engaged in commerce or in any industry or activity affecting commerce are covered under the Family and Medical Leave Act (FMLA) and should consider including this model policy statement in their handbook.

  • Military Leave - Reinstatement From Active Duty: West Virginia

    Type:
    Employee Handbooks

    West Virginia employers seeking to educate employees about the availability of reinstatement following active duty in the state's military forces and to demonstrate compliance with the law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Utah

    Type:
    Employee Handbooks

    Utah employers seeking to advise employees about the availability of leave for military duty and to demonstrate their compliance with Utah's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Arkansas

    Type:
    Employee Handbooks

    Arkansas employers with five or more employees in each of the 20 or more calendar weeks in the current or preceding calendar year seeking to advise employees about the availability of leave for military duty and to demonstrate their compliance with Arkansas' military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Idaho

    Type:
    Employee Handbooks

    Idaho employers seeking to educate employees about the availability of military leave and demonstrate compliance with Idaho's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Arizona

    Type:
    Employee Handbooks

    Arizona employers seeking to inform servicemembers, or those who may become servicemembers, of their rights and protections under Arizona law and to demonstrate compliance with Arizona's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: South Dakota

    Type:
    Employee Handbooks

    South Dakota employers seeking to educate employees about the availability of military leave and demonstrate compliance with South Dakota military leave law should consider including this model policy statement in their handbook.

About this topic

HR guidance on USERRA and handling uniformed service leave obligations.