USERRA Job Protection

The short version

USERRA, the Uniformed Services Employment and Reemployment Rights Act, protects your civilian job when you leave it for military duty, including drill, annual training, schools, and mobilization. Done right, you come back to the job, and the seniority, pay, and benefits, you would have had if you never left.

The protections are strong, but they come with steps: give your employer notice, stay inside the time limits, and report back on time. USERRA does not require your employer to pay you while you are gone.

What are your core rights?

USERRA covers nearly all employers, large and small, and most kinds of military service.

What you are owed

• Reemployment in the job you would have held, with seniority, status, and pay.
• No discrimination based on your service.
• Health coverage continuation while you are away.
• Your own vacation stays yours. An employer may not require you to use accrued vacation, annual, or similar leave during a period of military service, though you may choose to.

The limits and duties

• Give advance notice to your employer when you can. Notice may be written or oral, and may come from you or from an appropriate officer.
• Five-year cumulative cap on service with one employer, with eight exceptions. Periodic Guard and Reserve training duty is one of them, so drill weekends and annual training do not burn the clock.
• Report back on time based on how long you served.

USERRA returns you to where you would have been, not just your old seat. That is the escalator principle, and it protects the raises and promotions you would have earned. It can also move down if your whole peer group was laid off.

Source: Department of Labor (VETS), 20 CFR 1002.153, and ESGR

Does USERRA cover state callouts?

Since January 5, 2021, it can. Federal law now counts as service in the uniformed services State active duty for a period of 14 days or more, plus state active duty in response to a national emergency declared by the President, and state active duty in response to a presidentially declared major disaster. The Department of Labor is explicit that 13 days or fewer of State Active Duty gets no federal USERRA protection.

One catch worth knowing before you call: ESGR, as a federally funded program, cannot expend resources mediating State Active Duty related disputes, so the free mediation route is not available there. More in State Active Duty.

Source: 38 U.S.C. 4303(13) and ESGR

What happens to health coverage while you are away?

It depends on one number: 31 days.

• Service of 30 days or fewer. You cannot be required to pay more than the normal employee share of any premium. For a drill weekend or a two-week annual training, the family plan is untouched and the premium does not change.
• Service of 31 days or more. You may elect to continue the plan, but you cannot be required to pay more than 102 percent of the full premium.
• How long. Up to 24 months from when the absence begins, or the period of service plus the time allowed to apply for reemployment, whichever is shorter.
• Coming back. Your plan cannot impose a waiting period or exclusion that would not have applied if you had never left, other than for service-connected conditions.

Compare the 102 percent number against your Reserve Component options in TRICARE for Guard and Reserve before you elect.

Source: Department of Labor

Does my employer have to pay me?

No. USERRA treats you as being on furlough or leave of absence, so differential pay from a private employer is voluntary. Some employers offer it anyway, and it is worth asking HR before your next set of orders. If an employer does pay it, differential wage payments for active duty of more than 30 days are subject to income tax withholding but not to Social Security or federal unemployment tax, and they show up on your W-2.

Federal civilian employees are the exception. They have a statutory reservist differential, and separate paid military leave that covers inactive duty training, meaning drill weekends can be paid time.

Source: 20 CFR 1002.149, IRS Revenue Ruling 2009-11, and OPM

What is the return-to-work clock?

Your deadline to report back or reapply depends on how long you served. Miss the window and you can lose the protection.

Reporting back

• 1 to 30 days: report at the beginning of the first regularly scheduled work period on the next calendar day after finishing, allowing safe travel home and an 8-hour rest period.
• 31 to 180 days: apply for reemployment within 14 days.
• 181 days or more: apply within 90 days.

The 14-day rule after a set of orders in the 31 to 180 day range is the one people miss. It is not 30 days, and it is not whenever you feel ready.

Source: Department of Labor and ESGR

What about my 401(k) while I was gone?

You are treated as not having a break in service. Military service counts as service with the employer for vesting and benefit accrual, and you can make up employee contributions or elective deferrals for the period of service over three times the length of that service, up to a maximum of five years from the date of reemployment. That is a long runway, and employer match is owed on those makeup contributions.

Source: Department of Labor Employment Law Guide

Do this now

1. Give your employer written notice of orders when you can, and keep a copy of the email.
2. Decide on health coverage before you leave: the employer plan at up to 102 percent for service of 31 days or more, or your Reserve Component options.
3. Write your report-back deadline on the orders themselves so you do not have to remember it later.
4. Ask HR about differential pay and about whether you can decline to use vacation.
5. Call ESGR if your employer resists, before it escalates.

FAQ

Does USERRA cover drill and annual training?

Yes. It covers voluntary and involuntary service, including drill, annual training, schools, and mobilization, and periodic training does not count against the five-year cap.

Does my employer have to pay me while I am on orders?

Not under USERRA. You are treated as on unpaid leave. Some employers pay a differential voluntarily, and federal civilian employees have a statutory one.

Can my boss make me use my vacation?

No. An employer may not require you to use accrued vacation, annual, or similar leave for military duty, though you may choose to.

Can I keep my employer health insurance?

For service of 31 days or more you can continue it for up to 24 months, paying up to 102 percent of the full premium. For 30 days or fewer, you pay no more than the normal employee share.

What is the escalator principle?

You return to the position, seniority, and pay you would have attained had you not left, not simply your former job. It can move down as well as up.

Does a state callout count?

State Active Duty of 14 days or more counts, as does state active duty responding to a declared national emergency or major disaster. Under 14 days generally does not.

What if my employer will not reemploy me?

Contact ESGR for free mediation, except on State Active Duty disputes. The Department of Labor's VETS enforces USERRA at no cost to you.

Where to get help

• ESGR for free employer mediation: esgr.mil
• DOL VETS to file a USERRA complaint: dol.gov
• Military legal assistance (JAG) at your installation or mobilization station.
• Your unit S-1 for certified copies of your orders to give your employer.
• Military OneSource, free 24/7, 800-342-9647: militaryonesource.mil

Verification Notes

• State Active Duty coverage comes from 38 U.S.C. 4303(13) as amended January 5, 2021 by Public Law 116-315, section 7004. Re-verify before publish.
• Differential pay prevalence is deliberately not quantified here. The most recent Bureau of Labor Statistics publication located is from March 2018 and should not be presented as current.
• USERRA protection from discharge except for cause after reemployment was not confirmed on a Department of Labor page and is not stated in this article.
• Internal link repaired: this article previously linked to a tricare-reserve-select slug that does not exist. It now points to the live TRICARE for Guard and Reserve article.

Sources & links

• Department of Labor VETS, USERRA: dol.gov
• Department of Labor, USERRA Fact Sheet 2: dol.gov
• Department of Labor, Employment Law Guide, USERRA: dol.gov
• eCFR, 20 CFR 1002.149: ecfr.gov
• eCFR, 20 CFR 1002.153: ecfr.gov
• U.S. Code, 38 U.S.C. 4303: uscode.house.gov
• ESGR, USERRA FAQs: esgr.mil
• ESGR, USERRA and State Active Duty: esgr.mil
• IRS, Revenue Ruling 2009-11: irs.gov
• OPM, Military leave fact sheet: opm.gov

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