What Is USERRA?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects the employment rights of individuals who serve or have served in the uniformed services, including the Armed Forces, National Guard, Reserves, and other categories designated by the President in time of war or emergency. USERRA applies to all employers regardless of size, making it one of the broadest employment protection statutes.
For HR professionals preparing for the SHRM-CP or SHRM-SCP exam, USERRA covers unique territory in the Law and Compliance domain. The law addresses military leave, reemployment rights, benefits continuation, and anti-discrimination protections. Understanding these provisions is essential for both exam success and supporting employees who serve.
USERRA is administered by the U.S. Department of Labor's Veterans' Employment and Training Service (VETS). Employees who believe their USERRA rights have been violated can file complaints with VETS or bring private lawsuits.
Military Leave and Notification
USERRA requires employers to grant leave for military service, subject to the following key provisions:
- Advance notice: The employee (or an appropriate military officer) must provide advance notice of military service, unless notice is precluded by military necessity or is otherwise impossible or unreasonable. Notice can be oral or written.
- Cumulative service limit: USERRA protects reemployment rights for up to five years of cumulative military service with a single employer, though many types of service are exempt from this calculation (such as involuntary extensions, required training, and service during national emergencies).
- Leave is unpaid: Employers are not required to pay employees during military leave, though they must allow employees to use accrued vacation or similar leave if the employee chooses.
On the SHRM exam, pay attention to the advance notice requirement. Unlike FMLA, which requires 30 days' notice when foreseeable, USERRA is more flexible, recognizing the realities of military service.
Reemployment Rights
USERRA's reemployment provisions are among its most distinctive features. Upon returning from military service, employees have the right to be promptly reemployed in the position they would have attained if they had been continuously employed during the period of service. This is known as the "escalator principle."
Reemployment rights depend on the length of service:
- 1 to 30 days: The employee must report back to work by the beginning of the first regularly scheduled work period on the first full calendar day after the service ends (plus travel time and 8 hours of rest).
- 31 to 180 days: The employee must submit a written or oral application for reemployment within 14 days after completing service.
- 181 days or more: The employee must submit a written or oral application for reemployment within 90 days after completing service.
The employer must reemploy the returning servicemember in the following order of priority: (1) the position the employee would have held if employment had not been interrupted (escalator position), (2) the position the employee held before service, or (3) a position of like seniority, status, and pay.
Benefits Protections and Anti-Discrimination
USERRA provides several important benefits protections:
- Health insurance continuation: Employees on military leave of 31 days or more can continue employer-sponsored health coverage for up to 24 months. The employee may be required to pay up to 102% of the full premium (similar to COBRA). For leave of 30 days or less, coverage continues as if the employee had not left.
- Pension and retirement benefits: Returning servicemembers must be treated as if they had been continuously employed for vesting, benefit accrual, and employer contributions. The employer must make up any missed contributions.
- Seniority rights: Returning employees are entitled to all seniority-based benefits they would have accrued during their absence.
USERRA also prohibits discrimination and retaliation against individuals based on their military service or obligation. Employers cannot deny initial employment, reemployment, retention, promotion, or any benefit because of military service. Returning servicemembers also receive enhanced protection against discharge: an employee reemployed after 181 days or more of service cannot be terminated without cause for one year; those returning from 31 to 180 days of service are protected for 180 days.
Start Practicing Today
USERRA questions on the SHRM exam test your knowledge of reemployment timelines, the escalator principle, and benefits protections. The exam includes 134 questions over 4 hours at Prometric or OnVUE.
SHRMpractice.com provides practice questions on USERRA and other military-related employment topics. Take our free diagnostic to assess your preparation, then create your account for full access to our SHRM study platform.