Who Is Protected by USERRA?
USERRA defines "uniformed services" to include the following organizations:
the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency. 38 U.S.C. § 4303(16).
Note: Performing national guard duty in state rather than federal service is not covered by USERRA. However, most states have their own version of USERRA which offers similar protection when called up by the state. In Arizona, A.R.S. § 26-167 and § 26-168 set forth the protections available for members of the national guard employed by private employers and by the state.
There are five general tests to establish coverage under USERRA.
- Job: All civilian jobs are covered, unless the employer can prove the job was truly a temporary position. USERRA applies to all private employers, state governments, and all branches of the federal government. Unlike some discrimination statutes, there is no "small business" exception.
- Notice: Military members or a responsible officer from their military unit must give advance notice to the employer before leaving for active duty. The notice may be either written or oral and is not required if military necessity prevents giving it or if it is otherwise impossible or unreasonable for the member to do so. To ensure protection, send the notice by certified mail or have the employer sign a copy acknowledging receipt.
- Duration: Generally, members can be gone from their civilian job for up to five years (total) with the same employer. Some categories of military service do not count, such as most periodic and special reserve and National Guard training, most service in time or war or emergency, and involuntary extensions on active duty.
- Character of Service: Veterans who have separated from the armed forces must have received an honorable or general discharge to be covered. In other words, veterans who received dishonorable discharges, bad conduct discharges, under other than honorable conditions discharges, and those who were dismissed or dropped from the rolls are not covered by USERRA protection.
- Prompt Return to Work: USERRA sets forth different time limits for returning to work depending upon the length of their absence due to military service:
- Members who served between 1 - 30 days must report to their employers by the beginning of the first regularly-scheduled workday that occurs eight hours after the person returns home. In other words, an employee gets eight hours of time after returning home, at a minimum, before having to report to work.
- Members who served for 31 - 180 days must submit an application for reemployment no later than 14 days after completion of their service.
- Members who served 181 days or more must submit an application no later than 90 days after completion of military service.
- These deadlines can be extended for up to two years for members who are hospitalized or convalescing because of a service-connected illness or injury.
Page Updated: 24 April 2008