SVWG Manual - Chapter 5: EMPLOYMENT

1. General Prerequisites
   1. Civilian job
   2. Absence due to military service
   3. Advanced notice given to employer
   4. Military service may not exceed 5 years (does not include IDT, AT and certain mobilizations in emergencies)
   5. Separation under Honorable conditions

   6. Report back to work in timely manner (based on length of service)

       

2. Uniformed Services

   1. Active and Reserve components (including National Guard under Federal authority) (or more than 14 days with declared emergency);
   2. Public Health Service;
   3. Designation by President in emergencies;
   4. Voluntary or involuntary call ups;
   5. Intermitted disaster response training and service.

    

3. Advance Notice

   1. Verbal or written (written recommended);
   2. Recommended 30 days’ notice;
   3. Exception for military necessity or unreasonableness.

    

4. Miscellaneous

   1. Employee cannot be forced to use vacation time for military service;
   2. Employer is responsible to cover shift for servicemember;
   3. Pension benefits (service counts toward pension time requirements).

    

5. What is not covered?

   1. Self-employed;
   2. Employment for brief, non-recurrent periods;
   3. Independent contractor;
   4. Students.

    

6. Employer defenses
   1. Impossibility due to change in circumstance (burden always on employer);
   2. Undue hardship on employer;
   3. Brief and non-recurrent employment.

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch2

1. Who’s Eligible for Reemployment? [38 U.S.C. § 4303, 13 & 16]

   1. Persons who have been absent from a position of employment because of “service in the uniformed services.”

      1. Service means: active duty and active duty for training; initial active duty for training; inactive duty training; full-time National Guard duty; absence from work for an examination to determine fitness; funeral honors duty; duty performed by intermittent employees of the National Disaster Medical System.

       

   2. “Uniformed Services” [20 CFR 1002.5(o)]
      1. Army, Navy, Marine Corps, Air Force and Coast Guard
      2. Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve
      3. Army National Guard and Air National Guard
      4. Commissioned Corps of the Public Health Service
      5. Any other category of persons designated by the President in time of war or emergency

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch3

1. Form of Notice

   1. Written or oral.

      1. May be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving.

       

2. Exceptions
   1. No notice required if 1) military necessity prevents the giving of notice or 2) the giving of notice is otherwise impossible or unreasonable.

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch4

USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. Most types of service will be counted in the computation of the five-year period.

*There are Eight categories of service that are exempt from the five-year limitation. Please refer to statute and the USERRA Pocket Guide for the categories.  

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch5

1. Circumstances of Disqualification of USERRA rights
   1. Separation from service with dishonorable or bad conduct discharge;
   2. Separation from service under other than honorable conditions;
   3. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war;
   4. Dropping an individual from t he rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court.

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch6

To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-duty service examinations) on the duration of a person’s military service.

*Please refer to the USERRA Pocket Guide for specific return to work time limits.

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch7

An employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation showing that:

• The person’s application for reemployment is timely;
• The person has not exceeded the five-year service limitation; and
• The person’s separation from service was other than disqualifying under Section 4304. 

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch8

1. Length of Service
   1. Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which the person is reinstated is based on the length of a person’s military service.

*Please refer to the USERRA Pocket Guide for details on the order of priority for when the person must be “promptly reemployed.”

2. “Escalator” Position [20 CFR 1002.192]

   1. The reemployment position with the highest priority in the reemployment schemes reflects the “escalator” principle that has been a key concept in federal veterans’ reemployment legislation. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority.

      The position may not necessarily be the same job the person previously held. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. On the other hand, depending on economic circumstances, reorganizations, layoffs, etc., the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. In other words, the escalator can move up or down.  

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch9

USERRA provides disability discrimination in employment protection for uniformed service members (to a degree).

1. For Civilian Employers

    

   1. 20 CFR 1002.192 - States in part, in all cases, the starting point for determining the proper reemployment position is the escalator position, which is the job position that the employee would have attained if his or her continuous employment had not been interrupted due to uniformed service. Once this position is determined, the employer may have to consider several factors before determining the appropriate reemployment position in any particular case. Such factors may include the employee's length of service, qualifications, and disability, if any. The reemployment position may be either the escalator position; the pre-service position; a position comparable to the escalator or pre-service position; or, the nearest approximation to one of these positions.
   2. 20 CFR 1002.225 - States in part, the employee is entitled to any specific reemployment benefits if the employee has a disability incurred in, or aggravated during, the period of service in the uniformed services; the employer must make reasonable efforts to accommodate that disability and to help the employee become qualified to perform the duties of his or her reemployment position. If the employee is not qualified for reemployment in the escalator position because of a disability after reasonable efforts by the employer to accommodate the disability and to help the employee to become qualified, the employee must be reemployed in a position according to the following priority. The employer must make reasonable efforts to accommodate the employee's disability and to help him or her to become qualified to perform the duties of one of these positions:

   3. 20 CFR 1002.226 - States in part, USERRA requires the employee be qualified for the reemployment position regardless of any disability. The employer must make reasonable efforts to help the employee to become qualified to perform the duties of this position. The employer is not required to reemploy the employee on his or her return from service if he or she cannot, after reasonable efforts by the employer, qualify for the appropriate reemployment position.

      (a) A position that is equivalent in seniority, status, and pay to the escalator position; or,

      (b) A position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee's case, in terms of seniority, status, and pay. A position that is the nearest approximation to the equivalent position may be a higher or lower position, depending on the circumstances.

2. For Federal Employers

   1. 5 CFR 353.207(c) - States in part, an employee with a disability incurred in or aggravated during uniformed service and who, after reasonable efforts by the agency to accommodate the disability, is entitled to be placed in another position for which qualified that will provide the employee with the same seniority, status, and pay, or the nearest approximation consistent with the circumstances in each case. The agency is not required to reemploy a disabled employee if, after making do efforts to accommodate the disability, such reemployment would impose an undue hardship on the agency.

       

   2. 5 CFR 353.301 – Compensable Injury Restoration of Rights for: (a) Fully recovered within 1 year; (b) Fully recovered after 1 year; (c) Physically disqualified; (d) partially recovered.

https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch10

1. If two or more persons are entitled to reemployment in the same position, the following procedure applies:

• The person who first left the position has the superior right to it.
• The person without the superior right is entitled to employment with full seniority in a position that provides similar seniority, status, and pay in the order of priority that normally determines a reemployment position.

For additional information pertaining to (1) defenses to reemployment, (2) employee rights and benefits, (3) pension/retirement plans, (4) vacation leave, (5) health benefits, (6) protection from discharge, (7) protection from discrimination and retaliation, or (8) how the law is enforced, please refer to Chapters 11 through 21 of the USERRA Pocket Guide

1. Online Pocket Guide
2. USERRA Poster
3. Pension Benefits Fact Sheet
4. Reemployment Rights and Benefits Fact Sheet
5. Separations from Uniformed Services Fact Sheet 
6. Responsibility to Notify Employer Fact Sheet 
7. Employment Protections under USERRA and VEVRAA Fact Sheet 
8. USERRA during COVID
9. Extending Rights to National Guard
10. Employer Support of the Guard and Reserve
11. Final Rule
12. Filing a Claim (https://www.dol.gov/agencies/vets/programs/userra/fileaclaim)