USERRA - Military Leave

The Uniformed Services Employment and Reemployment Rights Act of 1994, as amended, provides certain employment rights protections for person who voluntarily or involuntarily leave employment to undertake covered military service.

USERRA originally became law, and its anti-discrimination and anti-retaliation provisions took effect on October 13, 1994. Its protections have applied to members of the uniformed services seeking employment after December 11, 1994.

USERRA establishes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter, that reduces, limits, or eliminates in any manner, any right or benefit provided by USERRA, including the establishment of additional prerequisites to the exercise of any USERRA right or the receipt of any USERRA benefit. For example, an employment contract that determines seniority based on actual days of work would be superseded by USERRA, which requires that seniority credit be given for periods of absence from work, due to service in the uniformed services.

USERRA does not supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter, that establishes an employment right or benefit that is more beneficial than, or is in addition to, a right or benefit provided under the Act. For example, although USERRA does not require an employer to pay an employee for time away from work while performing service, an employer policy, plan, or practice that provides such a benefit is permissible under USERRA. If an employer provides a benefit that exceeds USERRA's requirements in one area, it cannot reduce or limit other rights or benefits provided by USERRA. For example, even though USERRA does not require it, an employer may provide a fixed number of days of paid military leave per year to employees who are members of the National Guard or Reserve. The fact that it provides such a benefit, however, does not permit an employer to refuse to provide an unpaid leave of absence to an employee, to perform service in the uniformed services, in excess of the number of days of paid military leave.

Who must comply with subject to liability under USERRA?

USERRA applies to all public and private employers in the United States. The term "employer" is broadly defined and construed for this purpose. The Regulations generally define the term "employer" as "any person, institution, organization, or other entity, that pays salary or wages for work performed, or that has control over employer opportunities," not otherwise excluded under the Regulations including:

A person, institution, organization, or other entity, to which the employer has delegated the performance of employment related responsibilities, except in the case that such entity has been delegated functions that are purely ministerial in nature, such as maintenance of personnel files of the preparation of forms for submission to a government agency;
The Federal Government;
A State;
Any successor in interest to a person, institution, organization, or other entity thereto;
A person, institution, organization, or other entity, that has denied initial employment in violation of 38 U.S.C. 4311, USERRA's antidiscrimination and anti-retaliation provisions.
In the case of a National Guard technician employed under 32 U.S.C. 709, the term "employer" means that adjutant general of the State, in which the technician is employed.
An employee pension benefit plan as described in section 3(2) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. 1002(2)), is considered an employer for an individual that it does not actually employ, only with respect to the obligation to provide pension benefits.

The term "employer" encompasses both public and private employers. Thus, states and their political subdivisions, such as counties, parishes, cities, towns, villages, and school districts, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and territories of the United States, as well as private employers, are considered employers under USERRA.

If an entity or individual falls within this broad definition, USERRA will apply regardless of the size of the employer or employing entity. For example, an employer with only one employee is covered for purposes of the Act.

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