Brown Law Office 972-355-0092
Brown Law Office 972-355-0092
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Employer Law FAQ

What are an Employer's Duties under USERRA?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to reemploy employees who voluntarily or involuntarily have to leave employment for duty in the uniformed services, including training in the National Guard and service in the National Disaster Medical System. USERRA also protects employees with current, past or future military service from discrimination in employment decisions and benefits as well as protects these employees from retaliation by their employers for exercising their rights under the Act.

USERRA applies to private and public employers.

Reemployment Duties

Employers are required to reemploy those who leave employment voluntarily or involuntarily for service so long as the total of all of employee's absences is not more than 5 years. There are exceptions to the five year rule, including for employees who have to leave for National Guard training duty and those who involuntarily have their duty extended or recalled.

Under the "escalator provision", employers are required to restore those qualified under USERRA to positions they would have attained had they continued to be employed and not had to leave for military service, including providing the employee with the benefits, pay and seniority. If the employee is not qualified for this position, the employer has a duty to use reasonable attempts to train the employee for the position. If the employee cannot be reasonably trained to qualify for the position, then the employer must restore the employee to the position he or she had prior to leaving.

Notice and Reapplication Deadlines

Employees are required to give employers as much notice as possible of their service leave. The notice can be verbal or in writing. The only exceptions to this rule are in cases where it is impossible or unreasonable to provide notice, or when the employee is precluded from doing so by military necessity.

Once employees return from service, they have a certain amount of time after their release to return or reapply for their jobs.

  • If the service period lasted less than 31 days, employees must return to work at the beginning of the next regularly scheduled work period on the first full day after release (this does not include the time it takes the employee to travel home or the 8 hour rest period that is provided)
  • If the service period was more than 30 days, but less than 181 days, the employee has 14 days after release to reapply for the employment position
  • If the service period was more than 180 days, the employee has 90 days after release to reapply for the employment position

Antidiscrimination

Employers may not discriminate against job applicants and employees who have served or currently serve in the armed forces. This means employers may not make hiring decisions based on an applicant's current or former involvement in the military. Employers also are prohibited from using an employee's military status to make decisions regarding raises, promotions, lay-offs, training, termination, job assignments and any other employment decisions. Further, employers may not retaliate against employees who exercise their rights under USERRA or those who participate in any way in internal or external investigations or legal proceedings regarding a USERRA claim.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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Betty L. Brown
Board Certified by the Texas Board of Legal Specialization
in Labor and Employment Law
Fountain Park
1021 Long Prairie Road, Suite 402
Flower Mound, TX 75022
Phone: 972-355-0092
Fax: 972-899-9635
E-mail: betty@brownemploymentlaw.com