This year marks the 30th anniversary of the Uniformed Services Employment and Reemployment Rights Act (USERRA or “the Act”), a law that safeguards the employment rights of military service members. Enacted in 1994, USERRA was part of a significant era of legislation that also saw the introduction of the Family and Medical Leave Act and the Americans with Disabilities Act.

USERRA protects employees and applicants who have served in the military, those who currently serve, and those who intend to serve.  The Act prohibits discrimination based on military service and provides covered employees with leave rights of up to five years.

Under USERRA, military leave is treated like furloughs or unpaid leaves. Employees may use accrued paid time off but are not required to. For absences lasting 31 days to two years, they may continue participating in their employer’s benefit plans, similar to COBRA, paying up to 102% of the premium.

The Escalator Principle

The “escalator principle,” a cornerstone of USERRA, guarantees the reinstatement of returning employees to their previous position or the role they would have attained had they not taken leave, including pay raises, bonuses, and promotions, provided they would have achieved the requisite seniority with “reasonable certainty.” However, the escalator principle can work in reverse; economic circumstances, reorganizations, or layoffs that would have impacted their position can justify denying reinstatement.

Procedural Requirements for Employees and Employers

USERRA stipulates that employees do not need to provide formal documentation before taking leave but must give advance notice. After more than 31 days of military service, documentation may be required upon return, and employers are given a grace period (up to 90 days) to reinstate the employee. The law provides that an employer must also accommodate a disability that occurs or is exacerbated during the leave.

Firm Job Protection and Legal Considerations

USERRA provides strong job protection, overriding even at-will employment clauses.  A covered employee who serves between 31 and 181 days may not be terminated without cause for 180 days from the date of their re-employment. Notably, USERRA does not have a statute of limitations for filing claims, allowing direct legal action without exhausting administrative remedies with an agency claim before suing the employer in court.

Additional Resources

Employers must notify employees of their USERRA rights, which can be done using the DOL’s available poster. A detailed guide is also available.

AIM members with questions about USERRA may contact the AIM Helpline at 800-470-6277 or email  helpline@aimnet.org. For more complex HR matters, visit our website, www.AIMHRSolutions.com to learn how we can help.