Understand Your Obligations Under USERRA
A range of people, including those serving or who have served in the armed forces, comprise your campus workforce. Military service is invaluable to our country and brings a different perspective to life on campus. Service requirements may take them away from your campus and their work for short or extended periods of time.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the employment status of these individuals during their service time. In addition, the law requires employers to provide disability accommodations if an employee is injured during their service.
Noncompliance Can Result in Penalties
A Texas jury awarded over $2 million to an Army reservist whose Iraq service injuries prevented him from performing his job duties. This verdict reminds employers of the financial penalties that can stem from noncompliance with the law.
USERRA’s nondiscrimination and retaliation protections are expansive — in some cases more than other employment statues — and come with significant monetary penalties of back pay and lost benefits. Willful violations of the statute can result in doubling of monetary awards. This recent case also noted that USERRA applies to nearly all employers, including state employers.
Reemployment and Benefits Rights
When an employee provides advance notice (written or verbal) of their military duty, their rights are protected while away on military service. Employees are entitled to return to employment upon promptly informing their employer of their intent to return to work at the end of their service requirement (which must be under honorable conditions to be entitled to reinstatement). Return rights depend, in part, on the length of the service time, but the employee generally should be returned to their same or similar position.
The returning employee also has the right to maintain certain employment benefits such as seniority and seniority-related benefits that would have accrued if the person had remained in employment rather than taking time away for service. Among those protected benefits: Vacation time, any health plan, and pensions.
Broad Disability Protections
In addition to reemployment and benefits rights, USERRA also provides broad protections for injured service members seeking or returning to employment. Employers must accommodate people who became disabled during military service. If your institution can’t accommodate the disability or the accommodation in question results in “undue hardship,” you may be entitled to find a comparable position for the employee but can’t deny reemployment.
Actions to Take
To ensure compliance with USERRA, take these actions (among others):
- Update your employment policies to reflect USERRA’s requirements and responsibilities.
- Educate those making leave or reemployment decisions about USERRA’s obligations.
- Be prepared to train (or retrain) employees returning from service.
- Determine if you will offer paid military leave for a specific period of time.
- Ensure your policy doesn’t require a person on military leave to use personal or vacation time.
- Understand limitations on termination for employees returning from military leave.
- Stress that your institution won’t tolerate retaliation against employees taking military leave.
- Consult with legal counsel for specific leave and return situations.
- Understand if your state also has a similar military leave protection statute.
Additional Resources
New York University: USERRA Policy
Union College: USERRA Guidance
University of Texas: Military Leave
About the Author
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Heather Salko, Esq.
Manager of Risk Research
Heather oversees the development of risk research publications. Her areas of expertise include employment law, Title IX, and student mental health. Before joining the Risk Research team, she practiced employment and insurance coverage law and handled UE liability claims for more than a decade.