What is the Uniformed Services Employment and Reemployment Rights Act?

The acronym USERRA is the shortcut label for a federal law which provides rights and benefits for employees and applicants who have served the United States in the military or other forms of protected service.  The law’s primary purpose is to protect the jobs of military personnel who leave to serve and return to the job they left.

Are tribal employers obligated to follow USERRA?

There is a dispute regarding the applicability of USERRA to tribal employers. There is a good argument the law applies to tribal employers and there is a good argument it does not apply.

Outside the tribal context, what employers must follow USERRA?

Most employers must follow USERRA.  The law applies to an employer which employs the employee and the employer which controls the employee’s employment opportunities. Therefore, an employee is hired by ABC and is leased to XYZ. USERRA applies to ABC and to XYZ.

Which employees are covered by the law?

Individuals who perform or have performed service in the uniformed services are covered by the law. Uniformed service covers all categories of military service and extends to civilians at the National Disaster Medical System and other categories of employees designated by the President in the time of war.

What are the rights of covered applicants and employees?

Employers may not discriminate against covered employees and applicants.  Employers may not retaliate against employees for exercising their USERRA rights. Please note that these protections may extend to temporary employees.

Is the employee obligated to provide notice to the employer of USERRA protected leave?

Yes, but there are not formal deadlines or a formal process. Employees are obligated to give employers notice 30 days before departing for service when it is feasible. Notice can be conveyed informally and therefore employers may not deny USERRA protected leave if the employee fails to provide notice on the employer’s designated form. Understand, the notice is not a request for permission to utilize leave, but instead “permission” is provided by the legal protections in the law.

What is USERRA’s reemployment right?

Employees are entitled to re-employment as long as the employee’s cumulative length of qualified leave does not exceed five years. In other words, protected workers must be re-employed unless they are gone for service more than five years. Note, the five year requirement applies to each employer.  For example, Chuck is on military protected leave from Slippery Slots Casino for four years. Chuck is re-employed by Slippery Slots Casino upon his return.  A year later Chuck works for Everyone Wins Bingo and with his transition to a new employer, he has five more years of protection. Moreover, there are additional tricky rules regarding the calculation of the five years.

Other than re-employment, do employees have protections during leave?

Maybe. Employers should treat USERRA employees the same as other employees who are on a leave of absence or furloughed. Accordingly, if employers permit employees to accrue vacation leave during a leave of absence, vacation accrual is required as well under USERRA.

Must employers pay employees while on USERRA leave?

No, but employers may pay employees during the leave.

Must employers maintain health insurance during USERRA leave?

No.  However, employees have the right to elect continuing coverage of an existing health plan for the shorter of 24 months or the length of their leave. This election of health coverage is similar to, but not the same as, the election under COBRA.

Summary

This summary is not a comprehensive analysis of the law, applicable regulations or judicial decisions. Please consult the rules and seek the assistance of legal counsel in evaluating the rights and responsibilities of the law.

Recommendation:  Determine whether you will follow USERRA and if so develop and follow a strong policy.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.