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The Uniformed Services Employment and Reemployment Rights Act protects service members’ reemployment rights when these individuals return from a period of duty. The protections offered by the USERRA extend to members of the Air Force, Army, Coast Guard, Marines, and Navy in addition to individuals from the reserves or National Guard.

Who is Protected?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) stands as a guardian for those who serve or intend to serve in the uniformed services. It firmly forbids employers from making decisions that negatively impact someone's job opportunities — including hiring, rehiring, job stability, promotions, or any employment benefit — based on their current or prospective service in the military § 4311. This law is a shield against discrimination and retaliation for those who dedicate themselves to serving our country.

Additionally, USERRA firmly establishes protections against workplace discrimination or negative actions aimed at individuals striving to enforce the rights provided by this law. Whether engaging in legal proceedings, assisting in investigations, offering testimony, or merely asserting their USERRA rights, individuals are shielded from any retaliatory actions § 4311. This guarantees that those who advocate for their own rights, or the rights of their peers, under these rules, are immune to any employer-induced retaliation or discrimination.

The Merit Systems Protection Board plays a pivotal role in reviewing complaints related to the employment or reemployment of individuals by Federal executive agencies or the Office of Personnel Management. Should the Board find an agency in violation of this chapter's stipulations, it has the authority to mandate compliance and award compensation for any losses of wages or benefits resulting from the non-compliance § 4324. This serves as a mechanism for enforcing rights within Federal executive agencies.

When an individual seeks to return to employment after serving in the uniformed services, they must present their employer with the necessary documentation. This documentation serves to verify that their reemployment request is made within the appropriate time frame, that their service duration falls within the limits established by the Act, and that they are still eligible for the benefits outlined in this chapter, as per § 4312. This is a cornerstone of the reemployment rights for those who have served our nation.

Furthermore, the concept of "undue hardship" is precisely outlined in the Act. It describes scenarios that pose a considerable challenge or financial burden, taking into account factors such as the specific actions required by this chapter, the financial capacity of both the facility in question and the employer at large, as well as the nature of the employer's business operations, as defined in § 4303. This definition ensures that the rights and obligations under the Act are balanced with the practical capabilities of the employer.

USERRA is not applicable to independent contractors nor does it extend benefits to the family members of the employee or applicant. It is important to note that this Act does not override any law, regulation, or collective bargaining agreement that provides more generous rights than those afforded by USERRA. Conversely, it takes precedence over any state laws, regulations, or collective bargaining agreements that would limit the rights provided under USERRA or impose additional obligations on service members, as outlined in Servicemember and Veterans Rights § 2.01.

Similar to the protections offered by the Family and Medical Leave Act (FMLA), USERRA safeguards the employment and reemployment rights of employees who must take leave for military duties. Yet, USERRA goes a step further by offering more comprehensive protections for those on military leave and by placing more stringent requirements on employers regarding the notice and documentation required from employees. It mandates that employees, or a designated official from the service member’s military branch, must provide advance notification to their employer regarding their need for military leave.



The Uniformed Services Employment and Reemployment Rights Act (USERRA) offers robust safeguards for individuals serving in the military. This seminal legislation ensures that military service does not lead to discrimination within the employment sphere, safeguarding the rights to obtain, return to, maintain employment, ascend in one's career, or enjoy any employment-related benefits without prejudice. This includes protection against discrimination based on one’s status or activities related to military service, as well as safeguards against any form of retaliation for seeking to uphold the rights USERRA guarantees, as elucidated in the case of Garcia-Ascanio v. Spring Indep. Sch. Dist., 74 F.4th 305.

Eligibility for USERRA's protections extends to a wide array of service members: those currently serving, applicants to service, and those with an obligation to serve. This includes not only full-time active duty personnel across all branches of the U.S. Armed Forces but also encompasses individuals in active-duty training, members of the Army and Air National Guards, the Commissioned Officer Corps of the National Oceanic and Atmospheric Administration (NOAA), and the Public Health Service Commissioned Corps. Furthermore, USERRA covers individuals involved in the National Urban Search and Rescue Response System during times of national crises, those performing military funeral honors, service members undergoing fitness examinations, individuals appointed for training or service within the Federal Emergency Management System (FEMA), among others, as well as any additional groups designated by the President during periods of war or national emergency, as highlighted in the context of Understanding Military Discrimination under USERRA.

USERRA sets a foundational baseline, not a limit, for the employment and reemployment rights and advantages it affords to those under its protection. Employers are at liberty to extend rights and benefits beyond what USERRA prescribes, yet they are prohibited from denying any right or benefit that USERRA ensures. Importantly, USERRA has precedence over any state legislation, contracts, agreements, policies, plans, practices, or any other provisions that in any way diminish, restrict, or nullify the rights or benefits stipulated by USERRA.

Furthermore, USERRA encompasses certain pension schemes not included under ERISA, such as those established by state or local governments, or religious organizations for their employees. It's worth noting, however, that pension benefits provided through the Federal Thrift Savings Plan are outside the scope of USERRA's coverage.

USERRA establishes a detailed enforcement structure that cannot be circumvented by filing a claim of constitutional infringement under 42 USCS § 1983. This unique pathway ensures that service members' rights are vigorously protected, specifically addressing situations where an employer’s actions make a service member's workplace unbearably hostile, forcing them to resign. In such instances, USERRA expressly forbids the termination of employment due to military obligations, enabling a constructive discharge lawsuit as demonstrated in the Garcia-Ascanio v. Spring Indep. Sch. Dist., 74 F.4th 305 case.



The Uniformed Services Employment and Reemployment Rights Act (USERRA) safeguards the rights of uniformed servicemembers to regain their civilian employment after completing their service. To qualify for reemployment, servicemembers must notify their employer about their deployment in advance, ensure their service duration does not surpass five years, and either report back to their job or formally request reemployment after their service ends. The requirement to report back or request reemployment is dependent on the length of the service period. For absences of less than 31 days, servicemembers are expected to resume work at the start of the next regularly scheduled workday following their return, as outlined by the Merit Systems Protection Board (MSPB) under USERRA Appeals. The Department of Defense advises that notices of service, preferably in writing, be given to civilian employers in advance, though verbal notifications are also compliant with USERRA's guidelines. Notably, the specifics regarding advance notice were updated as of June 5, 2020. Documentation requirements to prove eligibility for reemployment may differ on a case-by-case basis. Employers are mandated to provide the same paid military leave benefits as they do for other types of comparable leave. USERRA prevails over any state law or employment policy that might detract from the rights or benefits it guarantees. Reemployment should be promptly executed within two weeks following an application for reemployment, barring exceptional circumstances. Employers are prohibited from delaying reemployment by demanding documents that are not available or do not exist. The reemployment position, known as the escalator position, might vary upon return, potentially resulting in a higher or lower role, or in some cases, termination, depending on the specific situation and in accordance with the escalator principle's potential impacts.



Meet Your USERRA Law Legal Team


Danyelle Semjonovs (McNeary)

Employment Law Practice Leader

After graduating from law school, Danyelle served as an Equal Employment Opportunity Specialist at the Department of Labor’s Office of Federal Contracts Compliance Programs (OFCCP), where she used contracts to promote and protect civil rights, managed major and minor audits for compliance with U.S. anti-discrimination laws, and handled complaints against large government contractors.

Brickelle Bro_Headshot-1

Brickelle Bro

Associate Attorney

Before joining the firm, Brickelle held several law clerk positions, including working with the United Nations Committee on the Rights of Persons with Disabilities in Geneva, Switzerland. In this position, she aided the UN Secretary of the Committee on the Rights of Persons with Disabilities during the 24th session of the committee.

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