Wed Sep 03 2014   


What Rights Do Veterans Have Under USERRA?

Veterans are entitled to certain protection both while in military service and when they return to their civilian position:

  1. Prompt Reinstatement. Veterans who were gone 30 days or less are entitled to their job back immediately. Those who were away longer must still be re-hired within a few days.
  2. Status and Seniority. In most cases, veterans must be promptly reemployed in the job that they would have had, had they remained continuously employed (the so-called "escalator principle"). Generally speaking, this means that if peers received promotions and/or raises while the member was gone, the member does, too.
    • This requirement exists as long as the person is qualified for the job or can become qualified after reasonable efforts by the employer.
    • If veterans can't become qualified for the position they would have had, employers may place them in their pre-service position, as long as they are qualified for the job or could become qualified.
    • If the member cannot become qualified for the pre-service position, the employer must place the member in any other position of lesser status and pay that the member is qualified to perform, with full seniority.
    • If the member has been gone for 91 days or more, the employer may offer the employee a position of equivalent seniority status and pay, as long as the individual is qualified for it, in lieu of offering the "escalated" job the member would have had.
    • Employers must also make reasonable efforts to qualify the returning veteran for work, including training on new equipment or methods.
  3. Health Benefits. Veterans and their families have two types of health benefit rights:
    • Health Insurance During Service. If requested, employers must continue to carry veterans and their families on the company health plan for up to 30 days of service, at the normal cost. This can be important since TRICARE does not cover family members when the member's tour is for 30 days or less. Veterans can get up to 18 months of coverage, but the employer can pass on the full cost, including the employer's share, on to the member.
    • Immediate Reinstatement of Health Benefits. Veterans and their families may chose to go back on the company health plan immediately when they return to their civilian jobs. There can be no waiting period and no exclusion for pre-existing conditions, other than for VA-determined service-connected conditions.
  4. Pension Benefits. USERRA specifically guarantees those pension plan benefits that accrued during military service, regardless of whether a plan is a defined benefit plan or a defined contribution plan. Reemployed veterans are entitled to the following pension rights:
    • No break in employment service because of military service.
    • No forfeiture of benefits already accrued.
    • No need to requalify for participation in the pension plan because of military service absence.
    • Employers are required to make whatever contributions to returning veterans' pensions that the employer would have made if the employee had not been absent because of military service. (Reemployed veterans will not receive earnings and forfeitures made during the period of military service except to the extent otherwise provided under the plan.)
    • With respect to contributory plans that offer benefits only when an employee makes a contribution, veterans will have up to three times the period of service to make missed contributions, not to exceed five years.
  5. Accommodations for Disabilities Incurred in Military Service. Employers must provide reasonable accommodation for such disabilities, unless the employer can demonstrate undue hardship.
    • These requirements apply regardless of the size of the employer.
    • Veterans with service-connected disabilities who are not qualified for employment in the position that they would have "escalated" to, but for military service, or in the position that they left, must be reemployed promptly in any other position of similar seniority, status and pay for which the person is qualified or would become qualified with an employer's reasonable efforts.
    • If all else fails, reemployment must be in a position that is the nearest approximation consistent with the circumstances of the individual's case.
    • The disability does not have to be permanent to confer rights. For example, if the returning veteran broke a leg while on active duty, the employer is required to make reasonable efforts to accommodate this temporary disability.
  6. Protection Against Discharge Without Cause. Reemployed veterans enjoy protection from discharge without cause for a period after returning to work, depending on the length of their absence.
    • If the member was gone for more than six months, the protection lasts for one year.
    • If the member was gone for 31 - 180 days, the protection lasts for six months.
    • If the member was gone for less than 30 days, there is no special protection. However, as explained below, the returning veteran cannot be removed for absence due to military duty.
  7. Protection Against Discrimination. USERRA prohibits employment discrimination based on past, present, or future military obligations. This prohibition extends to most employment-based decisions including hiring, retention, promotion, reemployment, termination and benefits.
    • There is no longer any distinction between active duty service and reserve or National Guard service. All types of veterans are protected.
    • Employers also may not take adverse employment action against a person because they assert their rights under USERRA, testify or assist in a USERRA investigation, or take enforcement action under USERRA.
      • Non-veterans who assist veterans are also protected under this provision.

Page Updated:  24 April 2008