A federal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA), protects employees from discrimination because they have served in the military or are members of the military, National Guard, or Reserves. USERRA also gives employees the right to take time off for military service.
USERRA Protections for Employees
Under USERRA, employees are entitled to reinstatement after they take leave for up to five years of service in the military. Employees are protected if they meet these conditions:
- The employee gave notice in advance that the leave was for military service.
- The employee spent no more than five years on leave (there are some exceptional circumstances in which an employee may take more than five years off).
- The employee was released from military service under honorable conditions.
- The employee reported back or applied for reinstatement within the time limits set by the law. (The limits depend on how long the employee was on leave.)
When an employee returns to work from military leave, the employee must be reinstated to the "escalator" position: the job the employee would have held if he or she had been continuously employed rather than taking leave. In other words, the employee is entitled not just to the former position, but also to any promotions, increased pay, or additional job responsibilities that would have taken effect if the employee had not taken leave. If the employee isn't qualified for the escalator position, the employer must take steps to help the employee qualify.
Employees are also entitled to the benefits and seniority they would have earned had they been continuously employed rather than on leave. An employee's time on leave must be counted as time worked for the purposes of benefits plans and leave policies.
Returning employees also receive protection from termination: They cannot be fired without cause for up to one year after they are reinstated (how long they are protected depends on how long they served in the military). In other words, even if the employee would otherwise work at will, an employee returning from military leave is no longer an at-will employee for a limited period of time.
Learn more about Time Off for Vacation, Illness, or Civic Duty.
Protections for Employees Under State Laws
Almost every state has a law prohibiting discrimination against those in the state's militia or National Guard. Most state laws also require employers to allow employees to take leave for certain types of military service. Some states require leave only for employees who are called to active duty; others require leave for training as well.
When an employee returns from military leave, state law typically requires reinstatement, without any loss of benefits, status, or pay. These rights vary from state to state; for information on your state's protections, contact your state labor department.
Protections for Military Family Members
The federal Family and Medical Leave Act (FMLA) gives leave rights to family members of those serving in the military, too. There are two leave rights for military family members under the FMLA:
- Employees may take time off to handle "qualifying exigencies" arising out of a family member's military service. These include things like arranging for child care, helping with legal and financial documents, or attending counseling.
- Employees may take time off to care for a family member who was seriously injured while on active military duty.
For more information on these rights, see What Types of Leave Are Covered By the FMLA?