Know Your Employment and Reemployment Rights
The USERRA Act
Since the early days of World War II, Congress has passed laws that afforded protection against
employment discrimination for those who serve in the United States Military, whether they serve as
career personnel or reservists, and whether they enlist or are drafted. In 1993, Congress updated
and unified these laws under one name – the Uniformed Services Employment and Reemployment Rights
Act (“USERRA” or “the Act”). The following is an overview of the Act’s protections, the criteria
each soldier must meet in order to maintain eligibility for benefits, special considerations in the
construction industry, and places to go for assistance.
OVERVIEW OF THE ACT’S PROTECTIONS
USERRA applies to every employer and every form of military service, and trumps any other law
or private agreement (even a collective bargaining agreement or an arbitration award) that is less
generous than USERRA itself. The Act provides two essential types of coverage: protection against
employment discrimination based on military service; and entitlement to certain
employment and reemployment benefits.
The entitlements include: (1) prompt reinstatement; (2) to the same, or equivalent
job; (3) accumulation of seniority and seniority-related benefits during military-related absence;
(4) same job status as on departure; (5) protection against termination other than “for cause;”(6)
retraining; (7) accommodation for disability; (8) pension credit for service-related absences,
employer pension contributions, and opportunity to make up employee contributions; (9) certain
health care options; and (10) the same non-seniority based benefits afforded to any other employees
on a leave of absence (such as a holiday bonus).
ELIGIBILITY CRITERIA: THE SERVICE MEMBER’S OBLIGATIONS
In order to be and to remain eligible for USERRA’s entitlements, service members must meet
the five criteria. (Entitlements (9) and (10) above are exceptions: for these two, only the first
two criteria must be met.)
1. The employee has to leave civilian employment for the purpose of engaging in military
service.
2. The employee has to give the employer prior notice that his or her absence will be due to
military service.
3. The employee must be gone for no more than five years total, with some exceptions.
4. The employee must not be released from military service under other than honorable
conditions.
5. The employee must return to the same civilian employer under the time period specified in
the Act, which depends in turn on the length of service/absence.
ISSUES IN THE CONSTRUCTION INDUSTRY
The Act’s application raises special issues in the construction industry, which differs from
more traditional industries because construction workers are typically referred out of hiring halls
and work for a variety of employers for varying periods of time.
Who is the “employer” for purposes of notice and return?
If an employee works for one single contractor only, then that contractor is the employer to
whom the employee must give notice when he or she leaves and to whom he or she must return. If,
however, the employee works out of a hiring hall, then the technical “employer” is all of the
contractors who use that particular hiring hall to obtain employees. In some cases, the union
operating the hiring hall, and the pension and health and welfare funds to which the same group of
employers contribute, may also be the technical “employer,” for USERRA purposes.
In order to preserve all rights, persons who leave civilian employment in the construction
industry for military service should give notice in writing to all of the following when they leave
for military service and when they return from military service: the current (or most recent)
employer, the hiring hall operator, the pension fund administrator, and the administrators of any
health or welfare funds.
Is the employee covered under USERRA if he or she was on the hiring hall out-of-work list
when he/she left for military service?
Yes. An employee who is on lay-off status with an expectation of recall remains covered under
USERRA.
At what level are apprentices placed upon their return?
An apprentice must complete all required training before he or she can advance to the next
level. However, when he/she completes training, the date of achieving journey-level status should
be backdated to reflect the date the apprentice would have graduated but for military service. This
usually results in higher placement on the out of work list, and thus earlier referral to
employment.
AVAILABLE RESOURCES
A civilian group, ESGR (Employer Support for the Guard and Reserve) provides free assistance,
and even informal mediation services for employees and employers with questions or disagreements
about USERRA. The group’s toll-free number is 1-800-336-4590.
Employees can also seek assistance from their Commanding Officer, or from the Department of
Labor, Office of Veterans Affairs, which has a detailed website on USERRA issues.
