USERRA: Reemployment: Employment Criteria

March 9, 2022

As a military veteran, the time and commitment you put into your service to our country mean something. That’s why the Uniformed Services Employment and Reemployment Rights Act (USERRA) was passed in 1994—to not only honor your commitment but to stand in support of your continuing service.

Originally known as the Veterans’ Reemployment Rights (VRR), USERRA is a federal law that protects military service members and veterans from employment discrimination on the basis of their service, enabling them to regain their civilian jobs following a period of uniformed service.

While USERRA was created to safeguard the commitments of our service members, there are pre-conditions affiliated with your return from military duty. Some of the criteria include:

  • Before leaving for military service, you must give either verbal or written advance notice of your service obligation to your employer. The only exception is if you are unable to do so by reason of military necessity, or if it is otherwise impossible or unreasonable for you to do so.
  • This cumulative period of your service, which includes all prior absences for uniformed service, must not exceed five years. There are myriad types of service that are not counted toward this five-year limit.
  • Upon returning from your military obligation, you must submit an application for reemployment. Depending on your deployment, you may have to give notice immediately upon your return (if the period of service was less than 31 days) or you may have as long as 90 days (if the period has exceeded 180 days.)
  • In some cases of service-connected illness or injury, the required notice period could be extended to two years or longer.

In general, if these procedural requirements are satisfied, you are entitled to what is known as the “escalator principle.” This requires each returning service member to be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. If the returning employee is not qualified to perform the duties of the escalator position, the employer must make efforts to qualify the employee for that position. The only exception is if such efforts would require significant difficulty or expense for the employer.

In that case, you can be reemployed in the position you occupied at the time of your departure. If that period exceeds 90 days, you are eligible to return to a position of similar seniority, status, and pay.

Keep in mind that your employer does not have to re-employ you at all if the circumstances have changed to the point where it cannot be done.

If you feel your USERRA rights are in jeopardy of being violated, you need a law firm committed to standing up for your rights. We can review your case and, if warranted, help file a lawsuit on your behalf.

For more information or to get a free consultation today, contact us today.

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