YOUR RIGHTS UNDER USERRA

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1 FOR USE BY PRIVATE SECTOR AND STATE GOVERNMENT EMPLOYERS REEMPLOYMENT RIGHTS YOUR RIGHTS UNDER USERRA THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. HEALTH INSURANCE PROTECTION You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and: you ensure that your employer receives advance written or verbal notice of your service; you have five years or less of cumulative service in the uniformed services while with that particular employer; you return to work or apply for reemployment in a timely manner after conclusion of service; and you have not been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job. RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION If you: are a past or present member of the uniformed service; have applied for membership in the uniformed service; or are obligated to serve in the uniformed service; then an employer may not deny you: initial employment; reemployment; retention in employment; promotion; or any benefit of employment If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military. Even if you don't elect to continue coverage during your military service, you have the right to be reinstated in your employer's health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries. ENFORCEMENT The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations. For assistance in filing a complaint, or for any other information on USERRA, contact VETS at USA-DOL or visit its website at An interactive online USERRA Advisor can be viewed at If you file a complaint with VETS and VETS is unable to resolve it, you may request that your case be referred to the Department of Justice for representation. You may also bypass the VETS process and bring a civil action against an employer for violations of USERRA. because of this status. In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection. The rights listed here may vary depending on the circumstances. This notice was prepared by VETS, and may be viewed on the internet at this address: Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying this notice where they customarily place notices for employees. U.S. Department of Justice U.S. Department of Labor Publication Date January 2006

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23 USERRA-FMLA QUESTIONS AND ANSWERS 7/25/02 THE EFFECT OF THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT ON LEAVE ELIGIBILITY UNDER THE FAMILY AND MEDICAL LEAVE ACT 1. What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)? USERRA is a Federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person s past military service, current military obligations or intent to join one of the uniformed services. Enacted in 1994, USERRA traces its roots to It is codified at 38 U.S.C to What is the Family and Medical Leave Act (FMLA)? FMLA is a Federal law that provides eligible employees of a covered employer the right to take up to 12 workweeks of unpaid, job-protected leave, during any 12 months, for the birth and care of a newborn, adoption or foster care, or a serious health condition of the employee or certain family members. An eligible employee is one who meets certain requirements specified in the statute. FMLA was enacted in 1993 and is codified at 29 U.S.C to 2654 and at 5 U.S.C to 6387, relating to Federal civil service employees. 3. What are the leave eligibility provisions of the FMLA? In order to be eligible for leave under the FMLA, employees must meet several eligibility criteria. Two of these criteria affected by USERRA are: (1) the person must have been employed by the employer for at least 12 months; and (2) the person must have worked at least 1250 hours for that employer during the 12 month period preceding the start of the leave. The requirement of 1250 hours worked applies to persons employed by private employers, state and local governments, and the Postal Service. 4. What effect does USERRA have on these requirements? USERRA requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the FMLA. The service member's eligibility will depend

24 upon whether the service member would have met the eligibility requirements outlined above had he or she not performed military service. 5. How should the 12-month FMLA requirement be calculated for returning service members? USERRA requires that a person reemployed under its provisions be given credit for any months he or she would have been employed but for the military service in determining eligibility for FMLA leave. A person reemployed following military service should be given credit for the period of military service towards the months-of-employment eligibility requirement. Each month served performing military service counts as a month actively employed by the employer. For example, someone who has been employed by an employer for 9 months is ordered to active military service for 9 months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by the employer for more than the required 12 months (9 months actually employed plus 9 months while serving in the military service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment do not have to be consecutive to meet this FMLA requirement. 6. How should the 1250 hours-of-service requirement be calculated for returning service members? An employee returning after military service should be credited with the hoursof-service that would have been performed but for the period of military service in determining FMLA eligibility. Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250 hour requirement. In order to determine the hours that would have been worked during the period of military service, the employee s preservice work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person s eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1250-hour requirement is met. 7. Where can I get more information about USERRA? The Department of Labor s Veterans Employment and Training Service (VETS) administers USERRA, provides technical assistance/educational outreach, and investigates complaints. Information about USERRA is available on the VETS Web site. The address is There you will find USERRA information as well as a directory of local VETS offices.

25 This is one of a series of fact sheets highlighting U.S. Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion.

26 U.S. Department of Labor For Immediate Release Veterans Employment and Training Service Date: Washington, D.C. Contact: Gordon Berg USDL 02- Phone: (202) USERRA Protects Family and Medical Leave Rights of Reservists and National Guard Labor Department Reminds Employers Military Service Time Counts Toward Eligibility WASHINGTON National Guard and reservists returning to civilian occupations after serving in support of President Bush s post-sept. 11 national emergency declaration should have their active duty time counted towards their eligibility to take time off from work under the Family and Medical Leave Act (FMLA). The Department of Labor has issued a memorandum that clarifies its position on the rights of returning uniformed service members to family and medical leave under the Uniformed Services Employment and Reemployment Rights Act. USERRA entitles returning service members to all the benefits of employment that they would have obtained if they had been continuously employed. Under ordinary circumstances, a worker becomes eligible for leave under the FMLA after working for a covered employer for at least 12 months, during which he or she completed at least 1,250 hours of work. The memorandum says that employers should count the months and hours that reservists or National Guards would have worked if they had not been called up for military service towards FMLA eligibility. "Recognition of the rights and responsibilities established by USERRA will ensure that those who stood ready to serve our nation can return to their civilian jobs with all the legal benefits that they have earned," said Frederico Juarbe Jr., assistant secretary of labor for the Veterans' Employment and Training Service (VETS). "All staff of the Veterans' Employment and Training Service and the Wage and Hour Division will follow the guidance in this memorandum when dealing with inquiries involving family and medical leave rights of such service members." A member of the National Guard or Reserve who is absent from employment for an extended period of time due to military service and who requests FMLA leave shortly after returning to civilian employment may not have actually worked for his or her employer for a total of 12 months or may not have performed 1250 hours of actual work with the employer in the 12 months prior to the start of the FMLA leave. The memorandum clarifies that the months and hours that the employee would have worked, but for his or her military service, should be combined with the months employed and the hours actually worked to meet the 12- months and the 1250 hours of employment required by the FMLA. Questions about eligibility should be referred to the Veterans Employment and Training Service or to the Wage and Hour Division. State directors for VETS are listed at Local Wage and Hour Division offices can be found at or by calling the toll free number ### U.S. Labor Department releases are accessible on the Internet at The information in this news release will be made available in alternate format upon request (large print, Braille, audio tape or disc) from the COAST office. Please specify which news release when placing your request. Call (202) or TTY (202)