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: Kentucky

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Nebraska

    Type:
    Employee Handbooks

    Nebraska employers seeking to educate employees about the availability of different rights, protections and benefits, including a paid leave of absence, for eligible servicemembers and to demonstrate their compliance with Nebraska's military leave laws should consider including this model policy statement in their handbook.

  • Military Leave - Reinstatement From Active Duty Handbook Statement: South Carolina

    Type:
    Employee Handbooks

    South Carolina employers seeking to educate employees about the availability of reinstatement following certain military service and to demonstrate their compliance with the South Carolina law that provides reemployment rights for those serving in the South Carolina state or National Guard should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Missouri

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Delaware

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Indiana

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Alabama

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Michigan

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: New York

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Mississippi

    Type:
    Employee Handbooks

    Mississippi employers seeking to educate employees about the availability of military leave and to demonstrate compliance with Mississippi 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.