Frequently Asked Questions (FAQ)
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- Which Employers are covered by the Uniformed Services Employment and
Reemployment Rights Act (USERRA)?
- What types of Military service are covered by USERRA?
- Can an employer discriminate based on past or present Military service?
- Does USERRA protect against discrimination in initial hiring decisions?
- What criteria must the employee meet to be eligible under USERRA for
reemployment after Military service?
- What are the guidelines USERRA provides for the employee to return
to work after completion of military service?
- Is an application for reemployment required to be in any particular
form?
- Is the employee required to submit documentation to the employer in
connection with the application for reemployment?
- What documents satisfy the requirement that the employee establish
eligibility for reemployment after a period of service of more than thirty days?
- What types of discharge or separation from uniformed service will
make the employee ineligible for reemployment under USERRA?
- When is an employee entitled to be reemployed by his or her civilian
employer?
- What position is the employee entitled to upon reemployment?
- Does the reemployment position include elements such as seniority,
status, and rate of pay?
- Can the application of the escalator principle result in adverse consequences
when the employee is reemployed?
- What seniority rights does an employee have when reemployed following
a period of military service?
- Does USERRA require the employer to use a seniority system?
- Does an individual have rights under USERRA even if he or she is an
executive, managerial, or professional employee?
- Are Federal employees protected by USERRA?
- Does USERRA cover independent contractors?
- Must the employee give advance notice to his or her employer for a
leave of absence due to military service?
- Is the employee required to get permission from his or her employer
before leaving to perform military service?
- Must the employee tell their employer prior to leaving that he or
she will seek reemployment upon completion of military service?
- Is there a limit on the total amount of service in the uniformed services
that an employee may perform and still retain reemployment rights with the employer?
- Are there any exceptions to USERRA’s five-year service limit?
- What is the employee’s status with his or her civilian employer while
performing military service?
- Which non-seniority rights and benefits is the employee entitled to
during a period of service?
- What health plan coverage must the employer provide for the employee
under USERRA?
- How much must the employee pay in order to continue health plan coverage?
- In a multi-employer health plan, how is liability allocated for employer
contributions and benefits arising under USERRA’s health plan provisions?
- How does USERRA protect an employee’s pension benefits?
- If the employee is reemployed with his or her pre-service employer,
is the employee’s pension benefit the same as if he or she had remained continuously
employed?
- Is the employee entitled to any specific reemployment benefits if
he or she has a disability that was incurred in, or aggravated during, the period
of service?
- Does USERRA provide the employee with protection against discharge?
- What constitutes cause for discharge under USERRA?
- What options are available for conflict resolution issues concerning
employment, reemployment, or other rights and benefits under USERRA?
Answers:
1. Which Employers are covered by the Uniformed Services
Employment and Reemployment Rights Act (USERRA)?
USERRA applies to all public and private employers in the United States, regardless
of size, to include an employer with only one employee. USERRA applies to foreign
employers doing business in the United States and American companies operating in
foreign countries, unless compliance would violate the law of the foreign country
in which the workplace is located.
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2. What types of Military service are covered by USERRA?
USERRA’s definition of “service in the uniformed services” covers all categories
of military training and service, most often understood as applying to National
Guard and Reserve military personnel. USERRA also applies to persons serving in
the active components of the Armed Forces “upon release from active duty.
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3. Can an employer discriminate based on past or present
Military service?
An employer must not deny initial employment, reemployment, retention in employment,
promotion, or any benefit of employment to an individual on the basis of his or
her military service. Additionally, an employer cannot retaliate against an individual
by taking any adverse employment action against him or her because the individual
has taken an action to enforce a protection afforded any person under USERRA; testified
or otherwise made a statement in or in connection with a proceeding under USERRA;
assisted or participated in a USERRA investigation; or exercised a right provided
for by USERRA.
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4. Does USERRA protect against discrimination in initial
hiring decisions?
Yes. A person, institution, organization, or other entity that has denied initial
employment to an individual is in violation of USERRA’s anti-discrimination provisions.
Under the act, an employer need not actually employ an individual to be his or her
“employer,” if initial employment was denied on the basis of the individual’s military
affiliation, application for membership, performance of service, application for
service, or obligation for service in the uniformed services. For example, if the
individual has been denied initial employment because of his or her obligations
as a member of the National Guard or Reserve, the company or entity denying employment
is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer
of employment because the individual is called upon to fulfill an obligation in
the uniformed services, the entity withdrawing the employment offer is an employer
for purposes of USERRA.
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5. What criteria must the employee meet to be eligible under
USERRA for reemployment after Military service?
In general, if the employee has been absent from a position of civilian employment
by reason of service in the uniformed services, he or she will be eligible for reemployment
under USERRA by meeting the following criteria:
- The employer had advance notice of the employee’s service;
- The employee has five years or less of cumulative service in the uniformed services
in his or her employment relationship with a particular employer;
- The employee returns to work in a timely manner as defined under USERRA; and,
- The employee has not been separated from service with a disqualifying discharge
or under other than honorable conditions.
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6. What are the guidelines USERRA provides for the employee
to return to work after completion of military service?
To be eligible for protection under USERRA, the service member must report back
to work or apply for reemployment within the following guidelines:
- 1-30 days of service: Report next scheduled work day
- 31-180 days of service: Apply within 14 days completion of service
- 181+ days of service: Apply within 90 days after completion of service
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7. Is an application for reemployment required to be in
any particular form?
An application for reemployment need not follow any particular format. The employee
may apply verbally or in writing to the pre-service employer or to an agent or representative
of the employer who has apparent responsibility for receiving employment applications.
The application should indicate that the employee is a former employee returning
from service in the uniformed services and that he or she seeks reemployment with
the pre-service employer. The employee is permitted but not required to identify
a particular reemployment position in which he or she is interested.
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8. Is the employee required to submit documentation to the
employer in connection with the application for reemployment?
Yes, if the period of service exceeded 30 days and if requested by the employer
to do so. If the employee submits an application for reemployment after a period
of service of more than 30 days, he or she must, upon the request of the employer,
provide documentation to establish that:
- The reemployment application is timely;
- The employee has not exceeded the total time limit, currently five years, on the
duration of service;
- The employee's separation or dismissal from service was not disqualifying.
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9. What documents satisfy the requirement that the employee
establish eligibility for reemployment after a period of service of more than thirty
days?
Documents that satisfy the requirements of USERRA include the following:
- DoD (Department of Defense) 214 Certificate of Release or Discharge from Active
Duty;
- Copy of duty orders prepared by the facility where the orders were fulfilled carrying
an endorsement indicating completion of the described service;
- Letter from the commanding officer of a Personnel Support Activity or someone of
comparable authority;
- Certificate of completion from military training school;
- Discharge certificate showing character of service;
- Copy of extracts from payroll documents showing periods of service.
The types of documents that are necessary to establish eligibility for reemployment
will vary from case to case. Not all of these documents are available or necessary
in every instance to establish reemployment eligibility.
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10. What types of discharge or separation from uniformed
service will make the employee ineligible for reemployment under USERRA?
Reemployment rights are terminated if the employee is:
- Separated from uniformed service with a dishonorable or bad conduct discharge;
- Separated from uniformed service under other than honorable conditions, as characterized
by regulations of the uniformed service;
A commissioned officer dismissed by sentence of a general court-martial; in commutation
of a sentence of a general court-martial; or, in time of war, by order of the President;
A commissioned officer dropped from the rolls due to absence without authority for
at least three months; separation by reason of a sentence to confinement adjudged
by a court-martial; or, a sentence to confinement in a Federal or State penitentiary
or correctional institution.
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11. When is an employee entitled to be reemployed by his
or her civilian employer?
The employer must promptly reemploy the employee when he or she returns from a period
of service if the employee meets USERRA’s eligibility criteria. “Prompt reemployment”
means as soon as practicable under the circumstances of each case. Absent unusual
circumstances, reemployment must occur within two weeks of the employee’s application
for reemployment. For example, prompt reinstatement after a weekend National Guard
duty generally means the next regularly scheduled working day. On the other hand,
prompt reinstatement following several years of active duty may require more time,
because the employer may have to reassign or give notice to another employee who
occupied the returning employee’s position.
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12. What position is the employee entitled to upon reemployment?
As a general rule, the employee is entitled to reemployment in the job position
that he or she would have attained with reasonable certainty if not for the absence
due to military service. This position is known as the escalator position. The principle
behind the escalator position is that, if not for the period of military service,
the employee should be reemployed
in a position that reflects with reasonable certainty the pay, benefits, seniority,
and other job perquisites, that he or she would have attained if not for the period
of service.
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13. Does the reemployment position include elements such
as seniority, status, and rate of pay?
Yes. The reemployment position includes the seniority, status, and rate of pay that
an employee would ordinarily have attained in that position given his or her job
history, including prospects for future earnings and advancement. The employer must
determine the seniority rights, status, and rate of pay as though the employee had
been continuously employed during the period of service. The seniority rights, status,
and pay of an employment position include those established (or changed) by a collective
bargaining agreement, employer policy, or employment practice. In particular, the
employee’s status in the reemployment position could include opportunities for advancement,
general working conditions, job location, shift assignment, rank, responsibility,
and geographical location. If an opportunity for promotion, or eligibility for promotion,
that the employee missed during service is based on a skills test or examination,
then the employer should give him or her a reasonable amount of time to adjust to
the employment position and then give a skills test or examination.
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14. Can the application of the escalator principle result
in adverse consequences when the employee is reemployed?
Yes. USERRA does not prohibit lawful adverse job consequences that result from the
employee’s restoration on the seniority ladder. Depending on the circumstances,
the escalator principle may cause an employee to be seniority or job classification
would have resulted in the employee being laid off during the period of service,
and the layoff continued after the date of reemployment, reemployment would reinstate
the employee to layoff status. Similarly, the status of the reemployment position
requires the employer to assess what would have happened to such factors as the
employee’s opportunities for advancement, working conditions, job location, shift
assignment, rank, responsibility, and geographical location, if he or she had remained
continuously employed. The reemployment position may involve transfer to another
shift or location, more or less strenuous working conditions, or changed opportunities
for advancement, depending upon the application of the escalator principle.
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15. What seniority rights does an employee have when reemployed
following a period of military service?
The employee is entitled to the seniority and seniority-based rights and benefits
that he or she had on the date military service began, plus any seniority and seniority-based
rights and benefits that the employee would have attained if he or she had remained
continuously employed.
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16. Does USERRA require the employer to use a seniority
system?
No. USERRA does not require the employer to adopt a formal seniority system. USERRA
defines seniority as longevity in employment together with any employment benefits
that accrue with, or are determined by, longevity in employment. In the absence
of a formal seniority system, such as one established through collective bargaining,
USERRA looks to the custom and practice in the place of employment to determine
the employee’s entitlement to any employment benefits that accrue with, or are determined
by, longevity in employment.
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17. Does an individual have rights under USERRA even if
he or she is an executive, managerial, or professional employee?
Yes. USERRA applies to all employees. There is no exclusion for executive, managerial,
or professional employees.
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18. Are Federal employees protected by USERRA?
Yes. Federal employees have the same USERRA rights and responsibilities as non-federal
employees. Federal employees can request assistance through ESGR and Department
of Labor/ Veterans’ Employment and Training Service (DOL/VETS). When appropriate,
DOL/VETS can refer a case to the Office of Special Counsel Merit Systems Protection
Board.
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19. Does USERRA cover independent contractors?
No. USERRA does not provide protections for independent contractors. In deciding
whether an individual is an independent contractor, the following factors need to
be considered:
- The extent of the employer’s right to control the manner in which the individual’s
work is to be performed;
- The opportunity for profit or loss that depends upon the individual’s managerial
skill;
- Any investment in equipment or materials
- Whether the service the individual performs requires a special skill;
- The degree of permanence of the individual’s working relationship; and,
- Whether the service the individual performs is an integral part of the employer’s
business.
No single one of these factors is controlling, but all are relevant to determining
whether an individual is an employee or an independent contractor.
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20. Must the employee give advance notice to his or her
employer for a leave of absence due to military service?
Yes. The employee, or an appropriate officer of the uniformed service in which his
or her service is to be performed, must notify the employer that the employee intends
to leave the employment position to perform military service. If the employee has
more than one employer, each employer must be notified of the impending leave of
absence due to military service. USERRA regulations provide that an “appropriate
officer” can give notice on the employee’s behalf. An “appropriate officer” is a
commissioned, warrant, or non-commissioned officer authorized to give such notice
by the military service concerned. The employee’s notice to the employer may be
either verbal or written. The notice may be informal and does not need to follow
any particular format. Although USERRA does not state how far in advance notice
must be given to the employer, an employee should provide notice as far in advance
as is reasonable under the circumstances. The Defense Department “strongly recommends
that advance notice to civilian employers be provided at least 30 days prior to
departure for uniformed service when it is feasible to do so.”
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21. Is the employee required to get permission from his
or her employer before leaving to perform military service?
No. The employee is not required to ask for or get his or her employer’s permission
to leave to perform military service. The employee is only required to give the
employer notice of pending service.
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22. Must the employee tell their employer prior to leaving
that he or she will seek reemployment upon completion of military service?
No. When the employee leaves the employment position to begin a period of service,
he or she is not required to tell the civilian employer that he or she intends to
seek reemployment after completing uniformed service. Even if the employee tells
the employer before entering or completing uniformed service that he or she does
not intend to seek reemployment after completing the uniformed service, the employee
does not forfeit the right to reemployment. The employee is not required to decide
in advance of leaving the civilian employment position whether he or she will seek
reemployment after completing uniformed service.
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23. Is there a limit on the total amount of service in
the uniformed services that an employee may perform and still retain reemployment
rights with the employer?
Yes. In general, the employee may perform service in the uniformed services for
a cumulative period of up to five (5) years, under the current statute, and retain
reemployment rights with the employer.
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24. Are there any exceptions to USERRA’s five-year service
limit?
USERRA creates the following exceptions to the five-year limit on service in the
uniformed services:
Service that is required beyond five years to complete an initial period of obligated
service. Some military specialties require an individual to serve more than five
years because
of the amount of time or expense involved in training. If the employee works in
one of those specialties, he or she has reemployment rights when the initial period
of obligated service is completed.
If the employee was unable to obtain orders releasing him or her from service in
the uniformed services before the expiration of the five-year period, and the inability
was not the employee’s fault.
Service performed to fulfill periodic National Guard and Reserve training requirements
and includes service performed to fulfill additional training requirements determined
and certified by a proper military authority as necessary for the employee’s professional
development, or to complete skill training or retraining.
Service performed in a uniformed service if he or she was ordered to or retained
on active duty under the following circumstances:
- Involuntary active duty by a military retiree;
- Involuntary active duty in wartime;
- Retention on active duty while in captive status;
- Involuntary active duty during a national emergency;
- Involuntary active duty for an operational mission, involuntary retention on active
duty of a critical person during time of crisis or other specific conditions;
- Involuntary active duty by Coast Guard Reserve member for natural or man-made disasters;
- Service performed in a uniformed service if the employee was ordered to or retained
on active duty (other than for training) under any provision of law because of a
war or national emergency declared by the President or the Congress, as determined
by the Secretary concerned;
- Service performed in a uniformed service if the employee was ordered to active duty
in support of a critical mission or requirement of the uniformed services as determined
by the Secretary concerned; and service performed as a member of the National Guard
if the employee was called to respond to an invasion, danger of invasion, rebellion,
danger of rebellion, insurrection, or the inability of the President with regular
forces to execute the laws of the United States.
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25. What is the employee’s status with his or her civilian
employer while performing military service?
The employee is deemed to be on furlough or leave of absence from the civilian employer
while performing military duty. In this status, the employee is entitled to the
non-seniority rights and benefits generally provided by the employer to other employees
with similar seniority, status, and pay that are on furlough or leave of absence.
Entitlement to these non-seniority rights and benefits is not dependent on how the
employer characterizes the employee’s status during a period of service. For example,
if the employer characterizes the employee as “terminated” while performing military
service, this characterization cannot be used to avoid USERRA’s requirement that
the employee be deemed on furlough or leave of absence, and therefore entitled to
the non-seniority rights and benefits generally provided to employees on furlough
or leave of absence.
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26. Which non-seniority rights and benefits is the employee
entitled to during a period of service?
The non-seniority rights and benefits to which an employee is entitled during a
period of service are those that the employer provides to similarly situated employees
by an employment contract, agreement, policy, practice, or plan in effect at the
employee’s workplace. These rights and benefits include those in effect at the beginning
of the employee’s employment and those established after employment began. They
also include those rights and benefits that become effective during the employee’s
period of service and that are provided to similarly situated employees on furlough
or leave of absence. If the non-seniority benefits to which employees on furlough
or leave of absence are entitled vary according to the type of leave, the employee
must be given the most favorable treatment accorded to any comparable form of leave
when he or she performs service in the uniformed services. As a general matter,
accrual of vacation leave is considered to be a non-seniority benefit that must
be provided by an employer to an employee on a military leave of absence only if
the employer provides that benefit to similarly situated employees on comparable
leaves of absence.
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27. What health plan coverage must the employer provide
for the employee under USERRA?
If the employee has coverage under a health plan in connection with his or her employment,
the plan must permit the employee to elect to continue the coverage for a certain
period of time as described below:
When the employee is performing military service, he or she is entitled to continuing
coverage for himself or herself (and dependents if the plan offers dependent coverage)
under a health plan provided in connection with the employment. The plan must allow
the employee to elect to continue coverage for a period of time that is the lesser
of:
- The 24-month period beginning on the date on which the employee’s absence for the
purpose of performing service begins; or,
- The period beginning on the date on which the employee’s absence for the purpose
of performing service begins, and ending on the date on which he or she fails to
return from service or apply for a position of employment.
- USERRA does not require the employer to establish a health plan if there is no health
plan coverage in connection with the employment, or, where there is a plan, to provide
any particular type of coverage.
- USERRA does not require the employer to permit the employee to initiate new health
plan coverage at the beginning of a period of service if he or she did not previously
have such coverage.
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28. How much must the employee pay in order to continue
health plan coverage?
If the employee performs service in the uniformed service for fewer than 31 days,
he or she cannot be required to pay more than the regular employee share, if any,
for health plan coverage. If the employee performs service in the uniformed service
for 31 or more days, he or she may be required to pay no more than 102% of the full
premium under the plan, which represents the employer’s share plus the employee’s
share, plus 2% for administrative costs. USERRA does not specify requirements for
methods of paying for continuing coverage. Health plan administrators may develop
reasonable procedures for payment, consistent with the terms of the plan.
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29. In a multi-employer health plan, how is liability
allocated for employer contributions and benefits arising under USERRA’s health
plan provisions?
Liability under a multi-employer plan for employer contributions and benefits in
connection with USERRA’s health plan provisions must be allocated either as the
plan sponsor provides, or, if the sponsor does not provide, to the employee’s last
employer before his or her service. If the last employer is no longer functional,
liability for continuing coverage is allocated to the health plan.
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30. How does USERRA protect an employee’s pension benefits?
On reemployment, the employee is treated as not having a break in service with the
employer or employers maintaining a pension plan, for purposes of participation,
vesting and accrual of benefits, by reason of the period of absence from employment
due to or necessitated by service in the uniformed services.
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31. If the employee is reemployed with his or her pre-service
employer, is the employee’s pension benefit the same as if he or she had remained
continuously employed?
In a non-contributory defined benefit plan, where the amount of the pension benefit
is determined according to a specific formula, the employee’s benefit will be the
same as though he or she had remained continuously employed make up contributions
in order to have the same benefit as if he or she had remained continuously employed
during the period of service. In a defined contribution plan, the benefit may not
be the same as if the employee had remained continuously employed, even though the
employee and the employer make up any contributions or elective deferrals attributable
to the period of service, because the employee is not entitled to forfeitures and
earnings or required to experience losses that accrued during the period or periods
of service.
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32. Is the employee entitled to any specific reemployment
benefits if he or she has a disability that was incurred in, or aggravated during,
the period of service?
Yes. A disabled service member is entitled, to the same extent as any other individual,
to the escalator position he or she would have attained if not for military service.
If the employee has a disability incurred in, or aggravated during, the period of
service, the employer must make reasonable efforts to accommodate that disability
and to help the employee become qualified to perform the duties of his or her reemployment
position. If the employee is not qualified for reemployment in the escalator position
because of a disability after reasonable efforts by the employer to accommodate
the disability and to help the employee to become qualified, the employee must be
reemployed in a position according to the following priority. The employer must
make reasonable efforts to accommodate the employee’s disability and to help him
or her to become qualified to perform the duties of one of these positions:
- A position that is equivalent in seniority, status, and pay to the escalator position;
- A position that is the nearest approximation to the equivalent position, consistent
with the circumstances of the employee’s case, in terms of seniority, status, and
pay. A position that is the nearest approximation to the equivalent position may
be a higher or lower position, depending on the circumstances.
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33. Does USERRA provide the employee with protection against
discharge?
Yes. If the employee’s most recent period of service in the military was more than
30 days, he or she must not be discharged except for cause. For 180 days after the
employee’s date of reemployment if his or her most recent period of uniformed service
was more than 30 days but less than 181 days; or, for one year after the date of
reemployment if the employee’s most recent period of uniformed service was more
than 180 days.
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34. What constitutes cause for discharge under USERRA?
The employee may be discharged for cause based either on conduct or, in some circumstances,
because of the application of other legitimate nondiscriminatory reasons. In a discharge
action based on conduct, the employer bears the burden of proving that it is reasonable
to discharge the employee for the conduct in question, and that he or she had notice,
which was express or can be fairly implied, that the conduct would constitute cause
for discharge. If, based on the application of other legitimate nondiscriminatory
reasons, the employee’s job position is eliminated, or the employee is placed on
layoff status, either of these situations would constitute cause for purposes of
USERRA. The employer bears the burden of proving that the employee’s job would have
been eliminated or that he or she would have been laid off.
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35. What options are available for conflict resolution
issues concerning employment, reemployment, or other rights and benefits under USERRA?
In the event a conflict arises that the employee and employer are unable to resolve,
ESGR’s trained Ombudsmen can provide mediation. Call ESGR’s national customer service
center at 1-800-336-4590 to get in contact with one of our trained ombudsmen. If
the service member or employer chooses to open a formal investigation regarding
a USERRA violation, they may do so by contacting the Department of Labor. The last
option available would be to hire a private attorney. Once the parties involved
file a formal complaint with the Department of Labor or hire private council, ESGR
ombudsmen can no longer offer assistance.
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