The Uniformed Services Employment and Reemployment Rights Act (USERRA)

Basically, USERRA provides that an employer must give you time off to perform military service and reemploy you following the service with status, seniority and rate of pay as though you never left. The employer cannot discriminate against you because of your military connection. This protection applies to employees who are full-time, part-time, or probationary, so long as the employment is not brief, non-recurring, and not expected to continue for a significant period.

Here are the basics you should know:

1. USERRA is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services”:

   • Are not disadvantaged in their civilian careers because of their service
   • Are promptly reemployed in their civilian jobs upon their return from duty; and
   • Are not discriminated against in employment based on past, present, or future military service.

2. An employer cannot discriminate against you for being a National Guard member. Types of discrimination include denying initial employment, reemployment, retention in employment, promotion, or any employment benefit because of your membership, application for membership, performance of service, application for service, or obligation for service in the military.

3. To be eligible for protection under USERRA, if you’ve been absent from your civilian job due to serving in the National Guard, you need to meet the following criteria:

   • Your employer had advance notice of your service;
   • You have five years or less of cumulative service in the uniformed services in your employment relationship with your employer;
   • You timely return to work or apply for reemployment; and
   • You have not been separated from service with a disqualifying discharge or under other than honorable conditions.

4. NGB Employer Support is here to help. Employer Support informs and educates service members and their civilian employers regarding their rights and responsibilities governed by USERRA. We do not have statutory authority to enforce, but serve as a neutral, free resource to employers and service members. Our trained ombudsmen provide mediation of issues relating to compliance with USERRA.

5. It’s in your employer’s best interest to comply with the law. If the Department of Labor finds that an employer has likely violated USERRA and cannot voluntarily comply with the law, the Department of Labor may refer the case to the U.S. Department of Justice for legal action against the employer.

Who’s covered?

USERRA applies to all public and private employers in the United States, regardless of size. For example, an employer with only one employee is covered for purposes of the Act.
USERRA also applies to foreign employers doing business in the United States. A foreign employer that has a physical location or branch in the United States (including U.S. territories and possessions) must comply with USERRA for any of its employees who are employed in the United States.

An American company operating either directly or through an entity under its control in a foreign country must also comply with USERRA for all its foreign operations, unless compliance would violate the law of the foreign country in which the workplace is located.

Independent contractors are not protected by USERRA. 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 required for the individual's tasks, or his or her employment of helpers;
• 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.