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: Rhode Island

    Type:
    Employee Handbooks

    Rhode Island employers seeking to educate employees about the availability of military leave for members of the Rhode Island National Guard and United States armed forces and to demonstrate compliance with Rhode Island's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Connecticut

    Type:
    Employee Handbooks

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

  • Massachusetts Military Leave Law Repealed: Employment Law Manual Updated

    Date:
    06 February 2015
    Type:
    Editor's Choice

    Massachusetts repealed its military leave law and now provides servicemembers with the same rights and privileges granted by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).

  • Military Leave Handbook Statement: New Mexico

    Type:
    Employee Handbooks

    New Mexico employers seeking to educate employees about their reinstatement rights following military service and to demonstrate their compliance with New Mexico's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Montana

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: North Carolina

    Type:
    Employee Handbooks

    North Carolina employers seeking to educate employees about the availability of leave for state service in the North Carolina National Guard and to demonstrate compliance with North Carolina's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Vermont

    Type:
    Employee Handbooks

    Vermont employers seeking to educate employees about the availability of temporary military duty leave and reemployment rights for Vermont National Guard members and to demonstrate compliance with Vermont's military leave laws should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Colorado

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Virginia

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Nevada

    Type:
    Employee Handbooks

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