The Department of Defense relies heavily upon the Reserve and National Guard as part of the Total Force.  This is especially true given the current OPSTEMPO of the United states military.  This strong reliance has resulted in the highest callup of Reserve Component forces in the history of our nation.  The rights and responsibilities of our Reserve Component membership are imprtant to employers and employees alike as everyone is pulling together to serve as patriots in the defense of our nation.  USERRA is the law that governs this important area and a copy of the actual statute is available through www.ESGR.com.  Enclosed is a practical guide to the understanding of USERRA.  Our sole practitioners are specifically trained to handle USERRA issues both from the employer and employee perspectives.   

I.    INTRODUCTION.

II.    PURPOSE OF USERRA.

III.   ELIGIBILITY.

·        Civilian Employment.

·        Performing Military Service.  

·        Notice Requirements Before Military Service Begins.  

·        Reporting Back to Work, Applying for Reemployment, and Documentation Requirements upon Return from Military Service.  

·        Honorable Release from Military Service.

·        5-year Maximum Military Service Period.

IV.  EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS.

·        Reemployment Positions.

·        Seniority Rights and Leave Benefits.

·        Continuing Health Care Coverage.

·        Employee Pension Plans.

V.   ENFORCEMENT OF USERRA PROVISIONS FOR SERVICE MEMBERS.  

·        Gather All Employment-Related Information.  

·        Military Command.  

·        Military Legal Assistance.

·        National Committee for Employer Support of the Guard and Reserve (ESGR).  

·        U.S. Department of Labor.

·        Additional State and Private Employee Enforcement Procedures.

·        Additional Federal Agency Employee Enforcement Procedures.

VI.   FEDERAL USERRA STATUTES (ESGR).

I.   INTRODUCTION.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in 1994 (Public Law 103-353, 13 Oct 94), replacing the Veterans' Reemployment Rights law.  USERRA provides numerous protections allowing service members to retain civilian jobs upon reporting back from military service.  This guide is Web-based and allows readers to click on the highlighted sections to navigate throughout the guide and to sites on the World Wide Web.  We have attempted to credit the authors and organizations that created or maintain the links found throughout the guide.  Most of the hyperlinks to specific USERRA statutes are linked to the National Committee for Employer Support of the Guard and Reserve (ESGR) Website.  Also, many of the helpful links include articles written by CAPT Samuel F. Wright, JAGC, USNR, one of the two authors of USERRA, and published on the Reserve Officers Association Website.  This guide addresses the basic rights and benefits afforded service members as well as service member obligations necessary to protect those rights and benefits and is not intended to constitute specific legal advice.  Service members are encouraged to seek legal assistance for more detailed information about USERRA benefits and obligations.           

II.   PURPOSE OF USERRA.  The purposes of USERRA are:

(1) To encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment that can result from such service;

(2) To minimize the disruption to the lives of service members as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of service members upon their completion of military service; and

(3) To prohibit discrimination against persons because of their service in the uniformed services (USERRA, sec. 4301).  Therefore, employers may not discriminate against service members because of their affiliation with the armed forces, including the initial hiring of service members seeking employment (USERRA, sec 4311).  Employers are also prohibited from acts of reprisal against service members that file USERRA complaints against them.

III.   ELIGIBILITY.  

·        Civilian Employment.  Generally, USERRA requires all civilian employers to provide reemployment to service members, upon the member's return from military service.  The term “employer” means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities (USERRA, sec. 4303(4)).  Therefore, even small businesses, regardless of the number of employees, must follow USERRA requirements.  However, there are some special exceptions when circumstances have changed and reemployment is not feasible.  (USERRA, sec. 4303(15)).

[Helpful Links: Does USERRA Apply to Students? (CAPT Wright, ROA Law Review 32, Nov 01); Defense Authorization Approved by House Includes Measures to Provide Troops with Student Loan Relief (CAPT Wright, ROA Law Review 32, May 03 update)]

 ·        Performing Military Service.  All armed force military personnel (including the Coast Guard, National Guard and Reserves) called to service in the uniformed services under federal authority, in both peacetime and wartime, that meet all the other eligibility requirements are protected under USERRA (USERRA, sec. 4303 (16)).  Commissioned Corps of the Public Health Service, and others designated by the President in time of war, are also covered.  USERRA offers civilian employment protection for all forms of duty performed with the “uniformed service under competent federal authority, [including] active duty, active duty for training, initial active duty for training, inactive duty training, [and] full-time National Guard duty . . .” (USERRA, sec. 4303 (13)).  Assignments also include absence from work for an examination to determine fitness to perform in the uniformed services, funeral honors, and duty performed by intermittent disaster response personnel for the Pubic Health Service and approved training for such service (USERRA, sec. 4303 (13); 42 USC 300hh-11(e), DOL USERRA Guide, p.4). 

[Helpful Links: USERRA Coverage for Examination to Determine Fitness (CAPT Wright, ROA Law Review 50, Sept 02); USERRA Coverage for Funeral Honors Duty, CAPT Wright, ROA Law Review 51, Sept 02)]

 State call-up of National Guardsmen is not included in USERRA, but may be covered under state law.  Although USERRA applies to National Guard duty assignments under federal authority, it does not apply to National Guardsmen called to duty under state authority, such as disaster relief or riot control.  However, most states have enacted military employment and reemployment rights laws, or military leave laws, that extend USERRA-type protections to Guardsmen performing military service when called to duty by the state's governor.  Section VII, towards the end of this guide, titled State Laws outlines laws concerning National Guardsmen performing military duty under state authority.

Voluntary tours are included.  USERRA protections apply equally to involuntary and voluntary tours.  Service members frequently misunderstand this aspect.  In other words, service members that make it known that they are volunteering for a military tour are afforded the same rights, and must comply with the same obligations under USERRA as members involuntarily called to duty.  (USERRA, sec. 4303 (13)(Definitions: “The term ‘service in the uniformed services’ means the performance of duty on a voluntary or involuntary basis….”).)   

[Helpful Link: Does USERRA apply to Voluntary Service? (CAPT Wright, ROA Law Review 30, Oct 01]                                                                                     

·        Notice Requirements Before Active Service Begins.  Service members are responsible for giving civilian employers verbal or written notice prior to military service (USERRA, sec. 4303 (8)).  Service members should provide their employers with notice as far in advance to military service as possible.  Service members are strongly encouraged to provide their employers with written advance notice to military service periods, 30 days in advance if possible. (DoDI 1205.12, paragraphs 6.1.1, 6.1.2.1.1, & 6.1.2.1.2).  Members of the Guard and Reserve performing inactive duty training should adopt a notification procedure that works well for their employer, such as a letter outlining the member’s drill days and two-week annual training days.  Advanced written notice demonstrates a member’s fulfillment of the initial USERRA notice requirement and provides the employer with a reasonable time frame to adjust to vacant positions that must be filled while the member is performing military service.  Moreover, the statute allows for letters signed by the member’s commander or supervisor (DoDI 1205.12, Enclosure 1.1.7 states that supervisory commissioned officers, warrant officers, and non-commissioned officers may sign notice letters). 

[Helpful Links: Notice To Civilian Employers, scroll down to Sample Letter (ESGR); DoDI 1205.12, Enclosure 3, scroll to last page: Sample Employer Notification of Uniformed Service; Sample Letter from Reservist or Others to Send to Their Civilian Employers (USCG, MLCPAC); Notice to Your Civilian Employer (CAPT Wright, ROA Law Review 5, updated Mar 03)]   

Notice is not required if prohibited by military necessity or if the ability to provide notice is impossible or unreasonable (USERRA, sec. 4312 (b)).  DoDI 1205.12, E1.1.4 provides examples of when providing advance notice to employers would be impossible or unreasonable.  These examples include when the employer or employer representative are not available to receive notice; a competent military authority orders the service member to report to duty within 48-hours of notification; and when the Office of Assistant Secretary of Defense for Reserve Affairs determines that sufficient justification exists making it impossible or unreasonable to provide advance notice.

This is a critical point in a service member’s journey to getting their civilian job back without loss of benefits upon returning from military service.  Even before members report to military service, they should begin maintaining a log or file so they can keep all of their records, letters, and other documents relating to their duty assignments and their communications with their employer.  For example, here is some information a member should maintain prior to, during, and after his or her duty assignment:      

- The civilian employers phone number, address, and other contact information

- The member’s old and new military installations’ personnel and duty office phone numbers, addresses, and other contact information

- A copy of military orders or drill schedules

- Letters written to employers concerning duty assignment(s)

- Memos for record that summarize verbal conversations between service members and employers regarding duty assignments

- A copy of this guide or other USERRA guidance materials

- A copy of signed orders, drill completion or other separation documents    

·        Reporting Back to Work, Applying for Reemployment, and Documentation Requirements upon Return from Military Service. 

Service members must follow reemployment reporting and application requirements upon returning from military service, as discussed in the following paragraphs.  For example, when periods of military service are 31 days or more, service members must apply for reemployment by providing specific information to the employer.  Although service members that fail to follow USERRA reporting and application deadlines do not automatically forfeit their entitlement to USERRA rights and benefits, they will be subject to the employer’s policies governing unexcused absences (USERRA, sec. 4312(e)(3)).  

[Helpful Link: Deadline for Returning to work (CAPT Wright, ROA Law Review 7, Nov 98)]    

30 days or less of military service.  Members that perform 30 days or less of military service must report back to work at the beginning of the first full regularly scheduled work period that begins after the member’s safe return home from military service plus an eight hour period (USERRA, sec. 4312 (e)(1)(A)(i) and (ii)).  This reporting requirement also applies in situations where members are absent for any length of time for the purposes of an examination to determine the person’s fitness to perform in the uniformed services, or for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32 (USERRA, sec. 4303 (13)   and sec. 4312 (e)(1)(B)).  The following example from the DOL USERRA Guide, p. 5, is helpful:

An employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night.  But the employer can require the employee to report for the 6:00 a.m. shift the next morning.  If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.

31 days to 180 days of military service.  Members returning from 31 days to 180 days of military service must submit an application for reemployment with the employer no later than 14 days after the completion of military service (USERRA, sec. 4312 (e)(1)(C)).  Application for reemployment may be oral or written.  Service members should identify themselves, state that they left their employer to perform military service, and that they have completed military service and wish to be reemployed (Ombudsman Services and the Law, scroll down to “Reemployment procedures” (ESGR)).  ESGR recommends that service members apply in writing and not simply verbally as a means to best preserve a member's reemployment request.  If applying for reemployment within 14 days after completing service is impossible or unreasonable through no fault of the member, application must be made the next full calendar day when applying is possible.  As one example, if the 14th day falls on a day when the offices are not open, or there is otherwise no one available to accept the application, the time extends to the next business day (DOL USERRA Guide, p. 5).   Also, if requested by the employer, service members returning from 31 to 180 days of military service are required to provide their employers with specific documentation establishing military service, as discussed below under “documentation requirements.”   

[Helpful Link: Sample Application for Reemployment (CAPT Wright, ROA Law Review 77 (sample letter), Jun 03)]

181 days or more of military service.  Members returning from 181 days or more of military service must submit an application for reemployment with the employer no later than 90 days after the completion of military service (USERRA, sec. 4312 (e)(1)(D)).  Application for reemployment may be oral or written.  Service members should identify themselves, state that they left their employer to perform military service, and that they have completed military service and wish to be reemployed (Ombudsman Services and the Law, scroll down to “Reemployment procedures” (ESGR)).  ESGR recommends that service members apply in writing and not simply verbally as a means to best preserve a member's reemployment request.  If applying for reemployment within 90 days after completing service is impossible or unreasonable through no fault of the member, application must be made the next full calendar day when applying is possible.  Additionally, if requested by the employer, service members returning from 181 days or more of military service are required to provide their employers with specific documentation establishing military service, as discussed below under “documentation requirements.”

[Helpful Link: Sample Application for Reemployment (CAPT Wright, ROA Law Review 77 (sample letter), Jun 03)]    

Service-connected hospitalization and convalescence. 

Service members hospitalized for or convalescing from any illness or injury incurred in or aggravated from military service must follow the above reporting and application procedures applicable to their total service time upon recovery (i.e., less than 30 days, 31 to 180 days, or over 181 days).  An ill or injured service member’s total time of service includes periods of hospitalization and convalescence.  The period of time for recovering from service-connected hospitalization or convalescence may not exceed two years (USERRA, sec. 4312 (e)(2)(A)).  If requested by the employer, service members returning from 31 days or more of combined military service and medical treatment are required to provide their employers with specific documentation establishing military service, as discussed below under “documentation requirements.”   

Documentation Requirements.  Service members performing 31 days or more of military service must provide the employer with documentation establishing their military service as part of, or in addition to, applying for reemployment, if requested by the employer (USERRA, sec. 4312(f)(1)).  However, employers cannot require this documentation prior to a service member’s duty assignment.  Documentation requirements include disabled service members that total period of military service, including service-connected hospitalization or convalescence, exceeds 31 days.  The documentation establishing military service must contain:

(1) Evidence that the service member applied for reemployment in a timely fashion;

(2) That the member’s cumulative time in service has not exceeded the five-year limitation; and

(3), That the member was separated under honorable conditions.  (USERRA, sec. 4312 (f)(1)(A) to (C).) 

 Failure of service members to provide documentation establishing military service cannot serve as a basis for denying reemployment to the service member, if the documentation does not exist or is not readily available at the time of the employer’s request.  However, if after reemployment, documentation becomes available that establishes the service member did not timely apply for reemployment, their cumulative service time exceeds the five-year limitation, or that they were not honorably separated, the employer may immediately terminate the service member’s employment (USERRA, sec. 4312(f)(3); DoDI 1205.12, Enclosure 2.5.2).  Suggested forms of documentation include a DD-214, endorsed orders, or a letter from the service member’s command (Ombudsman Services and the Law, scroll down to “Documentation” (ESGR)).           

·        Honorable Release from Military Service.  Service members entitled to the protections of USERRA do not include service members that are separated with dishonorable or bad conduct discharges, separated under other than honorable conditions, or commissioned officers dismissed or dropped from the rolls under 10 USC 1161(a) & (b).  (USERRA, sec. 4304 (1) to (4).)

·        5-year Maximum Military Service Period.  Generally, USERRA protects service member’s reemployment rights for up to five years of cumulative active duty and inactive military service (USERRA, sec. 4312 (a)(2)).   Cumulative military service duty means the total number of combined service days performed while employed by the same civilian employer.  Therefore, a new five-year clock begins when a service member begins work with a new civilian employer.  There are many important exceptions to the five-year cumulative rule that do not count against a member’s five-year maximum military service period with the same employer, including the following exceptions:   

(1) When a member’s initial service obligation exceeds five years (USERRA, sec. 4312(c)(1)).

(2) When a member, through no fault of his or her own, is unable to obtain orders releasing them before the expiration of the five-year period (USERRA, sec. 4312(c)(2).  For example, the five-year limit will not be applied to service members whose obligated service dates expire while they are at sea (DOL USERRA Guide, p. 3).

(3) When a member is required to perform duty under 10 USC 10147, under 32 USC 502(a) or 503, or to fulfill additional training necessary for professional development or for completion of skill training or retraining (USERRA, sec. 4312(c)(3)).  Therefore, annual two-week training requirements, monthly drill weekends, and other inactive duty training of National Guardsmen and Reservists do not count towards the five-year clock.                  

(4) Order to active duty under the following circumstances:           

(i) Involuntary order or call to active duty, or retention on active duty; 

(ii) Service resulting from an order to, or retention on, active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or Congress, as determined by the service Secretary;  

(iii) Ordered to active duty in support of an operational mission for which personnel have been involuntarily recalled;  

(iv) Performing service in support of a critical mission or requirement, as determined by the service Secretary;   

(v) Performing service in the National Guard when ordered to active duty by the President to suppress an insurrection or rebellion, repel an invasion, or execute laws of the United States;  

(vi) Voluntary recall to active duty of retired regular Coast Guard officers or retired enlisted members.  (USERRA, sec. 4312(c)(4)(A) to (E); DoDI 1205.12, Enclosure 2.3.4 to Enclosure 2.3.9).) 

[Helpful Link: Reemployment Protections for Activated Reserve Component Members (discusses 5-yr period on bottom of first page (OSD letter, Sep 01))] 

IV.   EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS.  

Service members that meet all of the USERRA eligibility requirements are entitled to specific rights and benefits such as prompt reemployment upon returning from military service.  Employers' reemployment processes for service members returning from military service can vary markedly, partly because of lack of knowledge or misunderstanding regarding this relatively new law.  The National Committee for Employer Support of the Guard and Reserve (ESGR) maintains a listing of "outstanding employers" concerning the reemployment of National Guard members and Reservists returning from duty.  The following sections address some rights and benefits and their limitations.    

·        Reemployment Positions.  Service members that meet USERRA eligibility requirements are entitled to prompt reemployment in specifically identified employment positions.  These positions vary due to the length of military service and other circumstances.  One type of position identified in the following paragraphs is called the “escalator position.”  The Department of Labor USERRA Guide, p.7 (Mar 03) describes the “escalator position” as follows:  

The escalator principle requires the each returning service member actually step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.  The position may not necessarily be the same job the person previously held.  For instance, if the person would have been promoted with reasonable certainty had the person not been absent; the person would be entitled to that promotion upon reinstatement.  On the other hand, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. 

[Helpful Link: Escalator Principle Applies to Entire Period of Military-Related Absence, Question 2 (CAPT Wright, ROA Law Review 60, Dec 02)]

 Also, there are occasions where employers must make “reasonable efforts” to assist service members in qualifying for specific employment positions upon returning from duty.  The term “reasonable efforts,” includes adequate refresher and advanced training that does not place an undue hardship on the employer (USERRA, sec. 4303(10)).  Members returning from military service are entitled to reemployment in the positions outlined below, in their specific order of priority (USERRA, sec. 4313(a)): 

90 days or less of service.  Members who perform 90 days or less of military service are entitled to reemployment in one of the following civilian positions, in order of priority:  

(1) In the civilian employment position the service member would have attained if continuously employed (the “escalator” position discussed above).  In other words, in the position the member’s civilian position would have developed or evolved into while he or she was away performing military service.  If the service member fails to qualify for the escalator position, the employer must make reasonable efforts to assist the service member in becoming qualified; or

(2) If the service member fails to qualify for the escalator position, employers must place the service member in the civilian position he or she held at the time they left the employer and reported to military service (i.e., in a “continuation” position, USERRA, sec. 4313(a)(1)(A) & (B)); or

(3) If the service member fails to qualify for the escalator position in (1) above and the continuation position in (2) above after reasonable efforts by the employer to assist the service member in becoming qualified, then the employer must place the service member in a position which is the nearest approximation to escalator position or the continuation position that the service member is qualified for, with full seniority (USERRA, sec. 4313(a)(4)).

91 days or more of service.  Members who perform 91 days or more of military service are entitled to reemployment in one of the following civilian positions, in order of priority:  

(1) In the civilian employment position the service member would have attained if continuously employed (the “escalator” position discussed above).  That is, in the position the member’s civilian position would have developed or evolved into while he or she was away performing military service.  If the service member fails to qualify for the escalator position, the employer must make reasonable efforts to assist the service member in becoming qualified for the “escalator” position; or  

(2) If the service member fails to qualify for the escalator position, employers must place the service member in the civilian position he or she held at the time they left the employer and reported to military service (i.e., in a “continuation” position), or in a position of like seniority, status and pay, the duties of which the person is qualified to perform (USERRA, secs. 4313(a)(2)(A) & (B)); or  

(3) If the service member fails to qualify for the escalator position in (1) above, or the continuation position and the position of like seniority in (2) above, after reasonable efforts by the employer to assist the service member in becoming qualified, then the employer must place the service member in a position which is the nearest approximation to the positions described in (1) & (2) above that the service member is qualified for, with full seniority (USERRA, sec. 4313(a)(4)).   

Service members with disabilities resulting from military services.  Service members with disabilities incurred in or aggravated during military service are entitled to reemployment in the following civilian positions, in order of priority:

(1) In the civilian employment position the service member would have attained if continuously employed (the “escalator” position discussed above).  In other words, in the position the member’s civilian position would have developed or evolved into while he or she was away performing military service.  If the service member fails to qualify for the escalator position, the employer must make reasonable efforts to accommodate the disability and to assist the service member in becoming qualified for the “escalator” position (USERRA, sec. 4313(a)(3)); or  

(2) If the service member is not qualified to perform the escalator position after reasonable efforts by the employer to accommodate the disability and qualify the service member, the employer must place the service member a position of like seniority, status and pay to the escalator position, the duties of which the member is qualified to perform, or would become qualified to perform with reasonable efforts by the employer to assist the member; or         

(3) If the service member cannot qualify for the escalator position in (1) above or the position of like seniority, status and pay to the escalator position in (2) above, the employer must place the member in a position which is the nearest approximation to the positions described in (1) & (2) above in terms of seniority, status, and pay consistent with the circumstances of the member’s case (USERRA, sec. 4313(a)(3)(A) & (B)). 

When two employees occupy the same employment position. 

There may be situations where service members report or apply for reemployment for a civilian position now occupied by another employee.  As one example, a Guardsman may be deployed for a long period of time and a second employee (a Reservist) is hired to replace the Guardsman, then the second employee is deployed himself or herself.  In this situation, the person who left the position first shall have the priority right to reemployment in that position (USERRA, sec. 4313(b)(1)).  The person who left the position second is entitled to reemployment as follows:     

(1) A position that provides a similar status and pay consistent with the circumstances of each member’s case, with full seniority; or

 (2) In a case of a disability incurred in or aggravated during military service that requires reasonable efforts by the employer for the member to be able to perform the duties of the position of employment, a position of similar status or pay of the member’s previous position, consistent with the circumstances of the member’s case, with full seniority.  (USERRS, secs. 4313(b)(2)(A) & (B).)    

Employers are not required to reemploy service members if reemployment is impossibility or unreasonable, causes undue hardship, or concerns a nonrecurrent or brief employment position.  An employer is not required to reemploy service members under the following situations:  

(1) Employers are not required to reemploy service members when their circumstances have changed so much as to make such reemployment impossible or unreasonable.  The Department of Labor USERRA Guide, p. 9 (Mar 03) provides an example when an employer would be excused from reemploying a returning service member: a reduction-in-force that would have included the service member.     

(2) Additionally, employers are not required to reemploy service members when doing so would impose an undue hardship on the employer.  Under USERRA, “undue hardship” requires significant difficulty or expense for an employer when considering the nature and cost of the necessary employer action, the employer’s overall financial resources and number of employees, and the size and type of the employer’s business (USERRA, sec. 4303(15)).  Situations where employers are required to demonstrate an undue hardship as a reason for not reemploying a service member includes:

(i) Even after reasonable efforts by the employer, a service member disabled from recent military service cannot qualify for a position in the same, similar, or nearest approximation to his or her previous employment position (USERRA, secs. 4312(d)(1)(B) & 4313(a)(3)); and  

(ii) Even after reasonable efforts by the employer, the service member cannot become qualified for the same, similar, or nearest approximation to his or her previous employment position (USERRA, secs. 4312(d)(1)(B) & 4313(a)(4)).   

(3) Further, employers are not required to reemploy service members if the member’s civilian employment is for a brief nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period of time (USERRA, sec. 4312(d)(1)(A) to (C)).  Although, the statue does not provide adequate guidance as to the meanings of “reasonable expectation” and “significant period,” federal regulations state that federal employees on a time-limited appointment serve out any remaining unexpired portion of the appointment upon his or her return for military service.  (5 CFR § 353.103(a).)  Also, the Office of Personnel Management directs that USERRA does apply to temporary federal civilian employees.  (CPM 2001-09, Rights and Benefits of Reservists Called to Active Duty; Attachment one, Section 10, Employment rights and benefits of Federal civilian employees who perform active military service.)  A U.S. Department of Agriculture Website provides a good example:  

An employee is hired on a temporary appointment effective October 1, 1996, with a not-to-exceed date of September 30, 1997.  On February 10, 1997, his/her reserve unit is mobilized for active duty by the Secretary of Defense to assist in an international crisis.  The employee returns to work on July 1, 1997, and will work through September 30, 1997, the remaining unexpired period of the temporary appointment.”  Therefore, no credit is given for the period of time the temporary employee is performing military service. 

Importantly, in all of these unique situations, the employer has the burden of proof concerning: impossibility or unreasonableness of reemployment, undue hardship of reemployment, or the brief or nonrecurrent nature of the employment without a reasonable expectation that such employment will continue (USERRA, sec. 4312(d)(2)(A) to (C)).  Also, once reemployed, service members cannot be released from civilian employment for one year if military service was for 181 days or more, and for 180 days if military service was for 31 to 180 days, except for cause (USERRA, sec. 4316(c)).

Additional reemployment provisions applicable to the federal government.  In addition to the above reemployment position requirements, federal government employers must follow additional procedural requirements.  Under USERRA, the term “federal government” includes any federal executive agency, the legislative branch of the United States, and the judicial branch of the United States (but excludes specific federal intelligence agencies listed below) (USERRA, sec. 4303(6)).   

Federal executive agency employees.  The Director of Office of Personnel Management (OPM) can make the following determinations concerning the reemployment of a service member in a federal executive agency position upon returning from military service: 

(1) The Director could determine that the federal executive agency the service member was employed with no longer exists and the functions of the agency have not been transferred to another federal agency; or   

(2) The Director could determine that It is impossible or unreasonable to reemploy the service member.  (USERRA, secs. 4314(b)(2)(A) & (B).)                  

If the Director of OPM determines either (1) or (2) above, the Director must ensure that the service member is offered a position of like seniority, status, and pay at another federal executive agency for which the member is qualified (USERRA, secs. 4314(b)(1)(A) & (B)).                   

Federal judicial and legislative agency employees.  If a federal judicial or legislative branch employer determines that it is impossible or unreasonable to reemploy a service member the member may apply to the Director of OPM, ensuring that they will be offered employment in an alternative position in a federal executive agency (USERRA, sec. 4314(c)).  The alternative federal agency position must be of like seniority, status, and pay to the member’s previous judicial or legislative position and for which the member is qualified.    

National Guard Technicians.  If the Adjutant General of a state determines that it is impossible or unreasonable to reemploy a service member who was employed as a National Guard technician, the Director of OPM must ensure that the technician is offered employment in an alternative position in a federal executive agency (USERRA, sec. 4303(4)(B); DoDI 1205.12, Enclosure 2.8.3)) 

Federal intelligence agency employees.  Federal employees of intelligence agencies listed in 5 USC 2302(a)(2)(C)(ii) follow unique reemployment processes (USERRA, sec. 4315(a)).  These agencies include the FBI, the CIA, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and other agencies or units determined by the President as functioning to conduct foreign intelligence or counterintelligence activities.  Although these intelligence agencies are exempt from the procedures mandated for other federal agencies, they must proscribe procedures to ensure, to the maximum extent practicable, that they provide for reemployment in a similar manner to the other agencies.  One aspect of these procedures is to designate an agency official to determine if reemployment of a service member is impossible or unreasonable (USERRA, sec. 4315(C)(1)).  Although the designated official’s determination is not subject to judicial review, they must notify the Director of OPM if they determine that it is impossible or unreasonable to reemploy service members (USERRA, secs. 4315(c)(2) & (3)).  The Director of OPM must then ensure that the service member is offered employment in a position in a federal agency, upon application by a service member (DoDI 1205.12, Enclosure 2.9.2)).  Additionally, the head of each intelligence agency must provide an annual report to three congressional committees stating the number of persons whose reemployment was determined to be impossible or unreasonable, including the reasons for such determinations (USERRA, sec. 4315(c)(4)).    

·        Seniority Rights and Leave Benefits.  Upon return from active duty, service members are credited for all aspects of advancement and benefits unless voluntarily forfeited by the service member.  Therefore, USERRA benefits accumulated while performing military service are credited as if the service member never left their civilian job.  Generally, employers are not required to compensate service members for payroll differences if their civilian pay is more than their military service pay.  Nevertheless, service members should inquire if their employer compensates members for pay differences—because some do (See ESGR's listing of "outstanding employers" under "Pay Diff.").   

Seniority rights.  A service member reemployed under USERRA is entitled to the seniority, rights, and benefits determined by the seniority the member had on the date they reported for military service plus additional seniority and rights and benefits the member would have attained if they remained continuously employed (USERRA, sec. 4316(a)).  The term “seniority” means longevity in employment together with any benefits of employment that accrues with, or is determined by, longevity in employment (USERRA, sec. 4303(12)).  Service member could forfeit non-seniority benefits by providing written notice to their employer based on a clear understanding of the specific rights and benefits they are forfeiting.  Even if a member knowingly forfeits non-seniority benefits, this does not affect the member’s other reemployment rights and benefits (USERRA, sec. 4316(b)(2)).    

Vacation, annual leave, and similar accrued leave days.  Employers are not required to allow members to accrue vacation time while performing military service.  However, vacation time accrued prior to beginning a period of military service will remain in effect upon return from duty (USERRA, sec. 4316(d)).  As one example, federal employees that receive and use 15 days of paid military leave for one year may use other federal leave days that accrued, prior to commencing military service, upon returning from duty.  Also, service member cannot be forced to use vacation, annual, or similar leave during military service (USERRA, sec. 4316(d)).

[Helpful Links: 5 USC 6323, Military leave; Reserves and National Guardsmen; Use of paid leave during uniformed service--federal employees (5 CFR 353.208); Employment rights and benefits of Federal civilian employees who perform active military service, Section 3, MILITARY LEAVE (OPM Memo, Attachment 1, 14 Sep 01)); Paid Military Leave for Federal Employees (CAPT Wright, ROA Law Review 33, Nov 01); Vacation Benefits Under USERRA (CAPT Wright, ROA Law Review 59, Apr 02)] 

·        Continuing Health Care Coverage.  From their initial date of absence from civilian employment, service members may elect to continue their current civilian employee health coverage for themselves and their dependents for up to 18 months while performing military service, unless the member has not elected coverage under the employer’s health plan or fails to report or apply for reemployment upon return from duty (USERRA, sec. 4317(a)).  The term “health plan” means an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health services for individuals are provided or the expenses of such services are paid (USERRA, sec. 4303(7)).  As noted in the “Health Insurance” law review below, employers are not responsible for initiating service member health care elections; therefore, members are responsible for informing employers of their desire to continue health care coverage for themselves and their dependents prior to commencing military service.  Also, note that service members and their dependents may enroll in TriCare while the member is on active duty for tours of 31 days or more and may qualify for the more costly COBRA or HIPAA health care plans due to changed circumstances. 

[Helpful Links: Protection of Uniformed Service Members’ Rights to Family and Medical Leave (DOL memo, 22 Jul 02); DOL VETS FAQs (many of the FAQs deal with health care); Health Insurance, CAPT Wright, ROA Law Review 10, updated Mar 03; Medical Benefits Overview (Military.com); Deciding Whether to Elect COBRA Health Care Continuation Coverage after the Enactment of HIPAA (DOL Notice 98-12)] 

Payment of health plan.  Members performing 30 days or less of military service must continue paying their current employee health plan premiums, where members performing 31 days or more of military service may be required to pay two percent (2%) more than the full (employer’s and employee’ share) premium (USERRA, sec. 4317(a)(2)).  Civilian health plan premiums need to be made and kept current while the member is performing military service.

Reinstatement of health care plans.  Employers must reinstate a service member’s health care plan upon reporting back or applying for reemployment, even when a member’s period of military service is for more than 18 months.  If a service member’s health plan is terminated while performing military service, employers may not impose exclusions or waiting periods above those recognized in the employer’s health plan upon a member’s return from service.  (USERRA, sec. 4317(b)(1)).  However, an exclusion or waiting period may be imposed for coverage of any illness or injury determined by the Secretary of Veterans Affairs to have been incurred in or aggravated during the service member’s performance of duty (DoDI 1205.12, Enclosure 2.14.3).  For multiemployer health plans see USERRA, sec. 4317(a)(3).

·        Employee Pension Plans.  Service member pension plan rights and benefits vary between private pension plans, the Federal Employees' Retirement System (FERS), the Civil service Retirement System (CSRS), or other federal or state pension plans.   Generally, service members are treated as not having incurred a break in civilian employment, with respect to employer pension plans tied to seniority, for periods of military service (USERRA, sec. 4318(a)(2)(A)).  An employer who reemploys a service member absent from a position of employment for 91 days or more may require the service member to provide the employer with documentation before treating the service member as not having incurred a break in service for pension purposes under USERRA, sec. 4318(a)(2)(A) (USERRA, sec. 4312(f)(3)(B)).  The documentation necessary must contain evidence that the service members applied for reemployment in a timely fashion, that the member’s cumulative time in service has not exceeded the five-year limitation, and that the member was separated under honorable conditions (USERRA, secs. 4312 (f)(1)(A) to (C)).  Suggested forms of documentation include a DD-214, endorsed orders, or a letter from the service member’s command.  (ESGR Website, scroll to documentation.)   

Types of plans covered.  A “pension plan” that complies with the requirements of the reemployment law would be any plan that provides retirement income to employees until the termination of employment or later.  Defined benefits plans, defined contribution plans, and profit sharing plans that are retirement plans are covered (this paragraph is from the DOL USERRA Guide, p. 10).  

Pension payment contributions.  Generally, employers are responsible for maintaining a service member’s pension plans, including funding the employee’s portion of pension payment contributions while the member is serving in the uniformed services (USERRA, sec. 4318(b)(1)).  Employers are responsible for maintaining a service member's pension plan for each period of the member's military service (USERRA, sec. 4318(a)(2)(B); DoDI 1205.12, Enclosure 2.15.2).  Service members will likely need to pay any accrued pension plan contributions upon return from military service and commencement of reemployment.  However, pension plan contribution payments shall not exceed the amount the payments would have been had the service member retained their civilian employment.  Importantly, service members have a length of time equal to three times the duration of the member’s military service to pay the accrued pension contributions, for a period not to exceed five years (USERRA, sec. 4318(b)(2)).  As one example, a service member will have three years to pay back accrued employee pension plan contributions upon returning from one year of qualified military service. 

[Helpful Links: Pension Entitlement under USERRA, CAPT Wright, ROA Law Review 74, May 03); Making up Missed Contributions to Pension Plan, CAPT Wright, ROA Law Review 76, May 03)] 

Federal Employees Retirement System (FERS).  Under USERRA, Thrift Savings Plan (TSP) benefits and rights are covered in accordance with 5 USC 8432b.  Employees enrolled in FERS may chose to make up TSP contributions over a period of at least twice the period of military service and no more than four times the period of military service (5 USC 8432b(b)(4)(B)).  For example, a service member covered under FERS will have between two and four years to pay back TSP contributions upon returning from one year of qualified military service.  Also, while performing military service, the service member's agency must make contributions of one percent of the member's basic pay and match contributions made by the service member (5 USC 8432b(c); DoDI 1205.12, Enclosures 2.16.1 & 2.16.2).   

[Helpful Links: Thrift Savings Plan Participation of Individuals Who Return to Civilian Service or Pay Status Following Military Service, TSP Bulletin 02-7; Thrift Savings Plan Features for Civilians;

Thrift Savings Plan for Uniformed Services; CPM 2001-09, Rights and Benefits of Reservists called to Active Duty (OPM Memo, Attachment 2, Section 9, RETIREMENT, 14 Sep 01)]

Civil Service Retirement System (CSRS).  Service members enrolled in the CSRS may make up TSP contributions similarly to those enrolled in the FERS, however, agencies are not required to match service member TSP contributions under the CSRS while the member is performing military service (DoDI 1205.12, Enclosure 2.17.1).                                                            

V.   ENFORCEMENT OF USERRA PROVISIONS FOR SERVICE MEMBERS.   Members who meet all USERRA eligibility requirements are entitled to prompt reinstatement of their prior civilian jobs.  When an employer does not afford service members appropriate employment positions or benefits under USERRA, or is about to fail or refuse to comply with USERRA, service members should follow the steps below to protect and enforce their USERRA rights. 

[Enforcement of USERRA Rights (CAPT Wright, ROA Law Review 12, updated Mar 03)]      

·        Gather All Employment-Related Information.  Gathering pertinent documentation and creating summaries of oral conversations relating to reemployment is critical to a service member’s ability to enforce his or her rights and secure his or her benefits under USERRA.  Ideally, service members will have existing files containing all of their records, letters, and other documents relating to their military assignments and their communications with their employer.  If not, service members should gather all pertinent case information.  A list of some of the information that members should gather or create is described above in the paragraph titled Notice requirements before active duty begins.   

·        Military Command.  Once a service member compiles all pertinent information and documentation, their next step in resolving a reemployment dispute should be to request the assistance of their Command.  Unit reservists can seek Command assistance, beginning with their immediate supervisor.  IMAs should seek Command assistance through their Program Manager and/or Base IMA Administrator.  If the dispute involves scheduling, the possible solution may involve a reasonable adjustment to a member's military schedule that does on impact Command readiness.  For more problematic disputes, a member's Command may telephone or write employers directly to notify the employer of USERRA requirements.  Command notification is a powerful tool because it has a good probability of resolving disputes in the shortest period of time without the service member being considered represented by counsel, as can be the case when military legal assistance attorneys contact employers.     

[Helpful Link: Sample Unit Letter to Employer (ESGR, 97)] 

·        Military Legal Assistance.  If a service member’s Command is not successful in resolving a reemployment dispute, the member may contact their base legal office.  Legal assistance attorneys advise service members on active duty or performing Inactive Duty for Training on USERRA notice requirements and their rights under USERRA, and provide sample letter formats for use by returning service members in asserting their USERRA rights with their employers.  Legal assistance attorneys may also assist service members in preparing DOL Form 1010, Eligibility Data Form: Veterans' Reemployment Rights Program, to open a file with the Department of Labor's Veterans' Employment and Training Services (VETS)— the agency responsible for enforcement of USERRA.  However, a legal assistance attorney’s ability to assist service personnel has its limitations.  First, Legal assistance attorneys should not contact service member employers concerning relief under USERRA.  This is an important issue because a letter written by a military legal assistance attorney to an employer on behalf of the service member could be considered as representation by organizations such as VETS, potentially resulting in no representation by VETS on behalf of the member.  If legal assistance service is not readily available or unsuccessful in resolving the issue, members should be referred to the Ombudsmen Services in the National Committee for Employment Support of the Guard and Reserve (ESGR) or VETS to pursue relief under USERRA.   

·        National Committee for Employer Support of the Guard and Reserve (ESGR).  The ESGR’s purpose is “to develop public understanding of the National Guard and Reserve and to enlist the support of American employers in the development of personnel policies and practices which will encourage employee participation in the Guard and Reserve programs.”  Trained ESGR volunteers and the Ombudsmen Services national staff are available to promptly respond to inquiries and conflicts presented by employees or employers.  (See [Resources page] of ESGR Website for listings of local contacts or call 1-800-336-4590.)  More than 95 percent of all such requests for assistance are resolved in this informal process. Many problems result from poor communication between employers and their employees or from a lack of familiarization with the rights and responsibilities of each as defined by law.  (This section is from ESGR’s Webpage: Ombudsman Services and the Law.) 

·        U.S. Department of Labor (DOL).  The Secretary of the Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to any person with respect to the employment and reemployment rights and benefits to which such person is entitled under USERRA.  In providing such assistance, the Secretary may request the assistance of existing federal and state agencies engaged in similar or related activities and utilize the assistance of volunteers (USERRA, sec. 4321).  The Mission statement for VETS is “to provide veterans with the resources and services to succeed in the 21st century work force by maximizing their employment opportunities, protecting their employment rights and meeting labor-market demands with qualified Veterans.”  Their Website is located at http://www.dol.gov/vets/welcome.html.  Also, service members can find contact information for their local VETS office from a DOL directory at http://www.dol.gov/vets/aboutvets/contacts/main.htm.

Filing a complaint with the Department of Labor.  When employers fail or refuse to comply with USERRA, or are about to fail or refuse to comply, service members (excluding intelligence community employees) may file a complaint with DOL through VETS (USERRA, sec. 4322(a)).  The complaint must be in writing, include the name and address of the employer, and contain a summary of the allegations that are the basis of the complaint (USERRA, sec. 4322(b)).  VETS/USERRA/VP Form 1010, Eligibility Data Form: Veterans' Reemployment Rights Program, is sufficient to file a complaint and open a file with VETS.  Legal assistance attorneys may assist service members in preparing VETS/USERRA/VP Form 1010 (note: although the form has an expiration date of 02/28/03, OMB has extended the form until 02/28/04).  Service members are advised to summarize their complaint and mention the remedies they seek on page 3 of the form.  The DOL investigates each complaint, and makes reasonable efforts to resolve the complaint if they determine the alleged actions occurred.  As part of their investigation, the DOL may examine documents from both the employer and employee and subpoena the testimony of witnesses and production of documents (USERRA, sec. 4326(a) & (b)).  If the DOL does not resolve the complaint they will notify the service member and the member may further pursue enforcement by the procedures described below, depending on whether the employer is a state or private employer or a federal employer (USERRA, secs. 4322(d) & (e)).  

[Helpful Link: Compliance Assistance--USERRA (DOL)]

·        Additional State and Private Employee Enforcement Procedures, Including when the DOL Complaint Process does not resolve the Service Member’s Complaint.  If service members receive notification from the DOL that they were unsuccessful in resolving the USERRA complaint against a state or private employer (the term “private employer” includes a political subdivision of a state), the service members may request that the DOL refer the complaint to the United States Attorney General, Department of Justice (DOJ).  The Attorney General may then commence an action for relief if he or she is reasonable satisfied that the member is entitled to relief under USERRA (USERRA, sec. 4323(a)).   If the DOJ commences an action on behalf of a state-employee service member, the action would be brought in the name of the United States as the plaintiff, and would be brought in a federal district court of competent jurisdiction (USERRA, secs. 4323(a) & (b)(1)). 

Remedies, attorney fees and court costs.  In a court action brought by or on behalf of a service member that is a state or private sector employee, courts may award the following relief:  

(1) Require the employer to comply with USERRA provisions; or 

(2) Require the employer to compensate the service member for lost wages or benefits incurred as a result of the employer’s failure

to comply with USERRA; or 

(3) If (2) above is awarded, courts may also require the employer to pay an additional amount up to the amount in (2) above as liquidated damages if the employer’s failure to comply with USERRA provisions was willful (USERRA, secs. 4323(d)(1)(A) to (1)(C)). 

Courts may also use their full equitable powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to fully vindicate service member’s USERRA rights and benefits (USERRA, sec. 4323(e)).  Additionally, courts may award reasonable attorney fees, expert witness fees, and other litigation expenses when service members obtain private counsel for USERRA proceedings against state and private employers (USERRA, sec. 4323(h)(2)).  Further, no fee or court costs may be charged against any person claiming USERRA rights (USERRA, sec. 4323(h)(1)).

State and private employees may submit a USERRA complaint directly to a court of competent jurisdiction.  Also, a service member that is a state government or private sector employee may commence a court action for relief under USERRA on his or her own or with the representation of private counsel.  USERRA states that these actions may be commenced in a state court in accordance to the laws of the state when the action is against a state employer, and must commence an action against a federal district court when the action is against a private employer (USERRA, secs. 4323(b)(2) & (b)(3)).  However, in practice, USERRA court actions against both state and private sector employees are likely to be commenced in federal court because of apparent state immunity from individual lawsuits under the eleventh amendment.  The instances were state and private sector employees and their private counsel may commence court actions are as follows:

(1) When a service member chose not to file a complaint with, or seek assistance from, the DOL (USERRA, sec. 4323(a)).  Therefore, a service member that is a state or private sector employee may commence an action directly with the proper court when an employer does not afford the service member employment or reemployment rights or benefits under USERRA, or is about to fail or refuse to comply with USERRA;  

(2) When a service member receives a notice from the DOL that they were not able to resolve the USERRA complaint submitted by the service member, and the service member chose not to request the DOL to refer the complaint to the United States Attorney General;  

(3) When a service member receives a notice from the DOL that they were not able to resolve the USERRA complaint submitted by the service member, and the service member requested that the DOL refer the complaint to the United States Attorney General but the Attorney General decided not to commence an action on behalf of the service member (USERRA, secs. 4323(a)(2)(A) to (C)).

·        Additional Federal Agency Employee Enforcement Procedures, Including when the DOL Complaint Process does not resolve the Service Member’s Complaint.  If service members receive notification from the DOL that they were unsuccessful in resolving the complaint against a federal agency employer, the service members may request that the DOL refer the complaint for litigation before the Merit Systems Protection Board (MSPB).  Upon this request, the DOL must refer the complaint to the Office of Special Counsel established under section 1211 of title 5 (USERRA, sec. 4324(a)(1)).  The Office of Special Counsel may commence an action (upon the request of the persons submitting the complaint) for relief and appear for the service member before the MSPB if reasonably satisfied that the member is entitled to relief under USERRA (USERRA, sec. 4324(a)(2)(A)).  The Office of Special Counsel shall notify the service member if they decide not to report the service member before the MSPB (USERRA, sec. 4324(a)(2)(B)).  

[Helpful Links: Code of Federal Regulations, Title 5, Chapter 1, Part 353--Restoration To Duty from Uniformed Service or Compensable Injury (United States Government Printing Office); Enforcement of USERRA against Executive Agencies, CAPT Wright, ROA Law Review 67, Mar/Apr 03)]      

Federal employees may submit a complaint directly to the MSPB.

Service members that are federal employees (excluding FBI and other intelligence community agencies) may submit a USERRA complaint concerning a federal government agency or the Office of Personnel Management directly to the MSPB.  Service members that chose this method may represent themselves or acquire private counsel to represent them before the MSPB.  Federal employees may submit USERRA compliant directly to the MSPB under the following circumstances:

(1) When a service member chose not to file a complaint with the DOL under USERRA, sec. 4322(a).  Service members that are federal employees may submit a complaint directly to the MSPB when an employer does not afford service members employment or reemployment rights or benefits under USERRA, or is about to fail or refuse to comply with USERRA;  

(2) When a service member receives a notice from the DOL that they were not able to resolve the USERRA complaint submitted by the service member;    

(3) When a service member decides not to be represented by the Office of Special Counsel, even after the service member requested that the DOL refer their case to the Office of Special Counsel and the Office of Special Counsel was willing to appear before the MSPB on the service member's behalf; and 

(4) When a service member is notified by the Office of Special Counsel of their decision not to represent the service member before the MSPB (USERRA, secs. 4324(b)(1) to (4)).

Merit Systems Protection Board Decisions.  “The U.S. Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems.”  (See About MSPB).  If the MSPB determines that a Federal executive agency or the Office of Personnel Management has not complied with the provisions of this chapter relating to the employment or reemployment of a person by the agency, the Board shall enter an order requiring the agency or Office to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by such person by reason of such lack of compliance (USERRA, sec. 4324(c)(2)).   

Attorney fees.  If the Board determines as a result of a hearing or adjudication conducted pursuant to a complaint submitted by a person directly to the Board, the Board may, in its discretion, award such person reasonable attorney fees, expert witness fees, and other litigation expenses.

Petitioning the United States Court of Appeals.   A service member that is a federal employee that is adversely affected or aggrieved by a final order or decision of the MSPB may petition the United States Court of Appeals for the Federal Circuit to review the final order or decision.  Such petition and review shall be in accordance with the procedures set forth in section 7703 of title 5 (USERRA, sec. 4324(d)(1)).  The Office of Special Counsel may represent a service member if they also represented the member before the MSPB (USERRA, sec. 4324(d)(2)).  

Federal employees of intelligence community agencies may submit USERRA claims to their agency’s Inspector General.  Under USERRA, sec. 4325, employees of intelligence community agencies may submit USERRA claims directly to their agency’s Inspector General.  These agencies include the FBI, the CIA, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and other agencies or units determined by the President as functioning to conduct foreign intelligence or counterintelligence activities.  The following two circumstances are examples of when intelligence community employees may submit a USERRA claim: 

(1) When the head of the service member’s intelligence community agency failed to proscribe and follow procedures to ensure, to the maximum extent possible, reemployment of returning service members in a manner similar to all other federal government, and state and private employers; and

(2) When the service member’s agency failure to abide by (1) above was wrongful (e.g., an intelligence agency’s designated official’s determination that it is impossible or unreasonable to reemploy a service member)(USERRA, sec. 4315(c)(1)).

The agency’s Inspector General shall investigate and resolve the allegation in accordance with or his or her agency’s procedures.  Generally, the Inspector General’s decision on how to resolve, or not to resolve, a USERRA reemployment complaint is not subject to judicial review

(USERRA, secs. 4315(c)(2), (c)(3) & 4315(C)(1)). 

[Helpful Links: Dew v. United States (Intelligence agency procedures)]

VI.   FEDERAL STATUTES.  The following sites from the ESGR Website provide the pertinent federal statutes concerning USERRA. 

ages? Click to add your page's main content here.

For further information and assistance, we urge you to contact the National Committee for Employer Support of the Guard and Reserve (NCESGR) at www.esgr.com.