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Military leave — Minnesota

The Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes certain rights for employees of private employers who serve in the military. Specifically, USERRA prohibits private employers from discriminating or retaliating against employees based on the employees’ uniformed service, and ensures that those employees receive certain benefits and reemployment rights, and it provides limited protection from termination upon return from military leave. 

Minnesota also has a military leave statute that offers certain protections to employees who are in the military or naval forces or have a spouse, parent, or child in the military forces and who are absent from work due to military leave or, for family members of a service member, due to attendance at certain designated military events. This chapter provides a summary of USERRA’s provisions, with references to Minnesota law where applicable.

Coverage

Any person who is a member of the “uniformed services” of the United States (or who applies to be a member of the uniformed services) is entitled to protection from discrimination or retaliation under USERRA. In addition, persons who are absent from their regular employment due to “service in the uniformed services” are entitled to certain reemployment rights and benefits. The term “uniformed services” is broad and includes:

  • all branches of the United States armed forces (including both the active and reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard)
  • the Army National Guard and Air National Guard, when members are engaged in active duty training, inactive duty training (such as weekend drills) or full-time duty
  • the commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or national emergency
  • intermittent disaster response appointees of the National Disaster Medical System (NDMS), but only when federally activated or attending authorized federal training.

The phrase “service in the uniformed services” is also defined broadly as the performance of a duty on a voluntary or involuntary basis in a uniformed service, and includes:

  • active duty
  • active duty training
  • inactive duty training
  • full-time National Guard duty (under Federal, not state, authority)
  • absence from employment for an examination to determine fitness for duty
  • absence from employment for the purpose of performing funeral honors duty by the National Guard or reserve members
  • absence from employment to serve as an intermittent disaster-response appointee upon activation of the NDMS or as a participant in an authorized training program for the NDMS.

USERRA does not protect employees who leave civilian employment to pursue a full time career in the military, unless the person returns to civilian life. Depending on the length of military leave, the employee may or may not have a right to reinstatement, but the employer can discriminate against the employee based on the employee's military service.

Unlike other federal employment statutes, USERRA does not require an employee to work for an employer for any minimum amount of time in order to be covered. In fact, USERRA provides rights and protections even to job applicants. However, when there is no expectation that the employment would continue for an indefinite or significant period of time, temporary employees hired for a brief, nonrecurrent period are not covered by USERRA.

Minnesota’s military leave law also prohibits employers from discharging or otherwise discriminating against an employee because of the employee’s membership in state or federal military service. This includes individuals who are in the United States military, the United States National Guard and reserves, as well as the Minnesota National Guard and Minnesota Air National Guard. The state law applies to employees who are drafted or who voluntarily enlist to enter or remain in active military service.

USERRA applies to virtually all employers in the United States, including private companies, tax-exempt entities, and federal, state, or local governments and agencies. There is no exception for small employers. In addition, some courts have even found that individuals may be liable for discrimination or retaliation under USERRA.

The provisions of the Minnesota military leave law are similarly wide-reaching and apply to all private employers. As with USERRA, there is no exception for small employers.

Requirements for taking military leave

USERRA requires all employers to allow covered employees to be absent from work to provide service in the uniformed services. An employee is not required to obtain permission from an employer before taking military leave under USERRA. Employees are protected by USERRA not only for the time that they are actually out on military leave, but also for the time taken off from work to travel to and from military duty. Employers are very limited in the restrictions that they can place on an employee’s ability to take a military leave of absence.

Employers must allow an employee to take a military leave of absence. Employees must be excused from work to attend inactive duty training (such as weekend drills or annual military training summer camp) or other service in the uniformed services.

Employee obligations

An employee is responsible for notifying the employer of the employee's military obligation. Such notice may be either written or oral. The notice may be informal and does not need to follow any particular format. It may be provided by the employee or by an appropriate officer of the branch of the uniformed services in which the employee will be serving. An appropriate officer is a commissioned, warrant, or noncommissioned officer authorized to give such notice by the applicable military service.

The notice should be submitted by an employee as far in advance as is reasonable under the circumstances. Military necessity, such as where a need for secrecy exists, or in situations where it is impossible or unreasonable to provide advance notice may lead to notice being given after the leave has already commenced.

An employee is not required to submit official documentation of his or her military orders at the time the employee requests the military leave of absence, because military orders are often issued on an informal basis. For example, the military rarely issues formal, written orders for inactive duty training (weekend drills). Nevertheless, any orders issued by competent military authority are considered valid.

An employer may not require an employee to reschedule drills, military training, or other military duty obligation to satisfy the employer’s needs. However, when military duties require an employee to be absent from work for an extended period, during times of acute business need or when the requested military leave is unduly burdensome for the employer, the employer may contact the commander of the employee’s unit to determine whether the duty could be rescheduled or performed by another service member. If the commander determines that the employee’s military duty cannot be rescheduled or performed by another service member, the employer must permit the employee to perform the employee's military duty. 

An employee is not required to find someone to cover the employee's work duties during the employee’s absence from work.

Requirements for returning from military leave

USERRA requires that a private employer reemploy eligible employees who have served in the uniformed services, subject to certain conditions. USERRA also contains detailed provisions concerning the position into which an employee must be placed upon return from military leave.

Eligibility for reemployment

Under USERRA, an employee who takes a military leave of absence must meet six eligibility criteria in order to be entitled to the reemployment rights and benefits of USERRA. If the employee does not meet the following criteria, the employer does not have to reemploy the employee:

  1. The employee must be absent from civilian employment due to service in the uniformed services (as defined earlier in this chapter).
  1. The employee must give timely advance written or verbal notice of intention or obligation to serve, unless that notification is impossible due to military necessity or another reason outside the employee’s control.
  1. The employee’s cumulative absence(s) from that employer due to military service must not exceed a total of five years. However, this five-year period does not include:
    • service that is required beyond five years to complete an initial period of obligated service
    • service during which the employee is unable to obtain discharge orders through no fault of the employee
    • service required by the military for drills, annual training, or completion of skills training
    • involuntary active duty during domestic emergency, national emergency, war, or national security situations
    • service under an order to active duty, or to remain on active duty, during a war or national emergency declared by the President of the United States or Congress
    • active duty (other than for training) by volunteers supporting “operational missions” for which selective reservists have been ordered to active duty without their consent
    • federal service by members of the National Guard when called by the President to suppress an insurrection, repel an invasion or execute federal law.
  1. The employee must be honorably discharged from service. An employee who is separated from the military due to a dishonorable or bad conduct discharge, or separated under less than honorable conditions, is not entitled to reemployment rights or benefits under USERRA.
  1. The employee must timely report for work or submit an application for reemployment as follows:
    • Military leave of fewer than 31 days - The employee must report for work by the beginning of the first full regularly-scheduled work period on the first regularly-scheduled workday that would fall eight hours after the employee has returned home from military service, allowing a reasonable time to commute home from service.
    • Military leave of 31 to 180 days - The employee must apply for reemployment not later than 14 days after completion of military service.
    • Military leave of more than 180 days - The employee must apply for reemployment not later than 90 days after completion of military service.
    • Military-related injury or illness - Persons who suffered an illness or injury caused or aggravated by military service must report for work or submit an application for reemployment within the time periods listed previously once their period of recovery, which cannot exceed two years from the date on which the military service ended. This time period must be extended by the minimum time necessary to accommodate circumstances beyond the employee’s control that make reporting or applying within that time period impossible or unreasonable.
  1. Upon request from the employer, an employee who has been absent from work for more than 30 days must provide documentation from the relevant branch of the uniformed services establishing the preceding criteria for reinstatement. Employers should note, however, that a failure to provide documentation cannot be a basis for delaying or denying employment if the documentation does not exist or is not readily available to the employee at that time. An employer should return the employee to work pending receipt of the requested documentation. If the documentation does become available and the employee does not meet the criteria for reinstatement, the employer may terminate the employment.

An employer is not permitted to terminate an employee who fails to return to work within the deadlines outlined earlier. If an employee fails to meet the USERRA reapplication deadlines, the employee will be subject to the employer’s standard policies and disciplinary procedure for employees who are absent for scheduled work in nonmilitary leave circumstances.

Exceptions to the obligation to reemploy

In the following situations, an employer may not be obligated to reemploy a person returning from military leave even if the criteria listed above are satisfied:

  • The employer’s circumstances have changed sufficiently so as to make reemployment impossible or unreasonable. The employer always bears the burden of proving such changed circumstances. However, an employer cannot meet this burden simply by showing that another person has been hired to fill the position vacated during the leave period or that no opening exists at the time of the reapplication. Reemployment of the returning employee must be more than inconvenient or undesirable in order for this exception to apply. For example, if an employer can show that it had 500 employees when the employee commenced military leave, but had only two employees at the time the returning employee sought reemployment, the employer may not be required to reemploy the returning employee.
  • Reemployment would cause an undue hardship on the employer, such as when the returning employee has a disability incurred in, or aggravated during, service or if the employee is not qualified to be employed in the position to which the employee would have been employed in and cannot become qualified with reasonable efforts by the employer in any position nearest to that position. For instance, if the returning employee has been so severely injured that the employee can no longer work, the employer is not obligated to reemploy the returning employee.
  • The employee’s prior job with the employer was only for a brief, nonrecurrent period, and there was no reasonable expectation by the employee at the time of departure that employment would continue for an indefinite or significant period of time. For instance, if the returning employee was formerly employed for a two-week job between semesters in college, the employer is not obligated to reemploy him or her.

Impact of COVID-19 on rights of returning service members

The COVID-19 pandemic did not result in any revisions to the USERRA statute and regulations, but the Veterans’ Employment and Training Service (VETS) issued a factsheet to address common scenarios that might arise from the application of USERRA in the context of the pandemic.

As a threshold matter, members of the National Guard or Reserves who are called to active duty in response to the COVID-19 emergency have employment and reemployment protections under USERRA. National Guard duty under state authority, commonly referred to as State Active Duty, is not covered under USERRA; however, members of the National Guard serving on State Active Duty have similar employment protections under state law.

Service members may be furloughed or laid off upon return from uniformed service, if it is reasonably certain they would have been furloughed or laid off had they not been absent for uniformed service. On the other hand, an employer may not delay the service members reemployment out of concern that the individual’s service in a COVID-19 affected area may have exposed them to COVID-19. When reemploying a service member who might have been exposed to COVID-19, an employer must make reasonable efforts in order to qualify the returning employee for his or her proper reemployment position. This can include temporarily providing paid leave, remote work, or another position during a period of quarantine for an exposed reemployed service member or COVID-19 infected reemployed service member, before reemploying the individual into a proper reemployment position.

Position to which the employee is assigned upon return from duty

Except with respect to persons who have a disability caused or aggravated by military service, USERRA provides that the position into which an employee is reinstated be determined by priority based on the length of military service:

  • Service of 1 to 90 days: The employee must be reemployed as follows:
    • The returning employee must receive the job position the employee would have held “with reasonable certainty” had the employee remained continuously employed, but only if the employee is qualified for the job or can become qualified after reasonable efforts by the employer. This is commonly referred to as the “escalator” position. To be qualified for a position, the employee must be both physically and emotionally capable of performing the duties of the position and working with co-workers and supervisors.
    • If the returning employee cannot qualify for an “escalator” position, the employee must receive the employee’s pre-service position if the employee is qualified for the job or can become qualified after reasonable efforts by the employer.
    • If the employee cannot become qualified for an “escalator” position or the employee’s pre-service position, the employee must be offered any other position that is the nearest approximation first to the “escalator” position and then to the pre-service position.
  • Service of 91 or more days: The employee must be reemployed as follows:
    • The returning employee must receive the job position the employee would have held “with reasonable certainty” had the employee remained continuously employed, or a position of equivalent seniority, status, and pay, but only if the employee is qualified for the job or can become qualified after reasonable efforts by the employer.
    • If the returning employee cannot qualify for an “escalator” position (as described in the previous section), the employee must be placed in a pre-service position or a job of equivalent seniority, status, and pay if the employee is qualified for the job or can become qualified after reasonable efforts by the employer.
    • If the employee cannot become qualified for an “escalator” position, the employee’s pre-service position, or an equivalent position, the employee must be offered any other position that is the nearest approximation first to the “escalator” position and then to the pre-service position.
  • The fact that another employee was placed in the returning employee's former position does not render it impossible or unreasonable for the employer to reinstate the returning employee. The employer is expected to accommodate a returning employee’s right to the same position, regardless of whether reinstatement would displace another employee.
  • Termination after Reinstatement - An employee who has been reinstated after serving in the military cannot be terminated except for "cause" within six months of reinstatement (if the employee’s prior service with the employer was between 30 and 180 days) and one year (if the employee's prior service with the employer was more than 180 days). To demonstrate "cause," the employer must show, among other things, that the employee had notice that the conduct at issue could lead to termination

Employees on leave and compensation

USERRA contains detailed provisions regarding the compensation that an employee is entitled to receive during military leave and upon return from military leave. An employer is not required to pay the employee during military leave. However, under the Fair Labor Standards Act (FLSA), an employer cannot dock an exempt employee’s pay for absences due to military leave in any workweek in which the employee performs any work for the employer. Therefore, if an exempt employee works a partial workweek in the same payroll week that military leave begins or ends, the employee must be paid for the entire week. In addition, if an exempt employee continues to do some work for the employer during military leave, by telecommuting or otherwise, the employee must continue to be paid. In all cases, the pay may be reduced by any military pay received. This reduced pay (the difference between military pay and the employee’s civilian pay) is called differential pay. Some employers elect to pay differential pay even when it is not required. Other employers choose to provide a specific number of paid military leave days per year and pay differential pay only when required for exempt employees. 

With respect to compensation after the employee returns from military leave (see Requirements for returning from military leave), the employer is generally required to reinstate the employee in a position at the level of pay the employee would have achieved if the employee had never taken military leave.

Pay includes all elements of compensation, such as:

  • salary
  • wages
  • commission
  • bonuses
  • shift premiums
  • hourly rate
  • piece rate.

Returning employees are also entitled to all seniority-based raises, as well as all merit-based raises that are consistently awarded to nearly all employees and were granted during the period of military leave.

Employees on leave and benefits

USERRA contains detailed provisions regarding the benefits that an employee is entitled to receive during military leave and upon return from military leave. In order to be eligible for these benefits, the employee must meet the eligibility requirements of USERRA, as described earlier, namely:

  • leaving work for temporary service in the uniformed services
  • providing proper notification prior to taking leave
  • returning to work within the required timeframe.

Health insurance benefits

USERRA includes specific rules for the provision of benefits under an employer-sponsored health plan, both during and after military leave. “Health plan” is broadly defined as “an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health services for individuals are provided or the expenses of such services are paid.” This definition of health plan includes all health plans, regardless of the number of participants, the size of the employer, or whether the employer is a government agency or church.           

TRICARE, formerly known as CHAMPUS, is the military’s health plan. A person reporting for a tour of active duty of 31 days or more will qualify for individual TRICARE coverage and coverage for dependents. Ongoing COBRA continuation coverage cannot be terminated because a reservist or a reservist’s family receives or is eligible to receive health coverage under TRICARE.

The employee and the employee dependents are entitled to re-enroll in the employer’s health plan when the employee returns to work without any new waiting period, exclusions, or preexisting condition limitations. However, if an employee incurred an illness or injury during military leave and the Secretary of Veteran’s Affairs determines that the illness or injury was incurred in or aggravated during service, that illness or injury may be subject to an exclusion or preexisting condition limitation. Therefore, a health plan can include a provision excluding from coverage an injury or illness incurred as a result of military service under those circumstances. 

If the plan does not include such an exclusion, the plan’s preexisting condition limitations, if any, would apply. However, in all likelihood, the employee would have sufficient “creditable coverage” from TRICARE to eliminate the limitation. If the employee was in the middle of a waiting period or was subject to a preexisting condition limitation at the beginning of military leave, the waiting period is tolled during the military leave and will resume when the employee returns to work.

An employer is not required by USERRA to make contributions for health coverage for an employee or family members during military leave, although the employer may choose to do so. USERRA provides the employee with the right to elect to continue coverage upon the beginning of military leave in a manner similar to COBRA. When COBRA applies to the employer, the employee could also elect COBRA continuation coverage. In addition, the employee’s spouse may have a special enrollment right which would allow the family to be covered under the spouse’s employer’s health plan.

Continuation coverage

Under USERRA continuation coverage, if an employee and any dependents are enrolled in a health plan immediately prior to military leave, they have the option of remaining on the health plan for the lesser of:

  • 24 months from the beginning of military leave
  • the date on which military leave began to the day after the date on which the person was required to return to employment for reinstatement. 

The employee may be required to pay up to 102% of the full premium for the coverage provided under the plan (calculated in the same manner as COBRA). However, if the period of service is only for 30 days or less, the employee and dependents must be maintained on the employer’s health plan during the leave with an employee contribution no greater than that normally required of employees. There is no notice requirement for USERRA continuation coverage.

If COBRA applies to the health plan, COBRA is triggered by the beginning of military leave, because of the employee’s reduction in hours and the employer must provide a COBRA notice. COBRA continuation coverage applies even though the employee and the employee's family are eligible for coverage (and may even become covered) under TRICARE (the military’s health plan). This is an exception to the normal rule that coverage under another employer’s group health plan cuts off the right to COBRA continuation coverage.

In general, unless the spouse or a dependent is disabled, the employee and family members will receive the same coverage for the same cost under either COBRA or USERRA. In either case, if, during the military leave:

  • the employee dies
  • the employee becomes divorced or legally separated
  • the employee becomes entitled to Medicare
  • a dependent’s status as a dependent under the plan terminates,

the spouse and/or dependent will be entitled to elect COBRA coverage for a period of up to 36 months from the date of the employee’s reduction in hours.

Because COBRA is triggered by the employee’s reduction in hours at the commencement of military leave, COBRA is not triggered if the employee chooses not to return to work at the end of the military leave.

Special enrollment rights

USERRA also grants spouses of members of the uniformed services certain special enrollment rights in employer-sponsored health plans. If a family loses health coverage because one spouse goes on military leave, and the non-serving spouse is otherwise eligible for coverage as an employee under another employer-sponsored plan, rather than electing continuation coverage, the family could elect coverage under the non-serving spouse’s employer’s plan. This may be less expensive than electing continuation coverage if the spouse’s employer pays a portion of the premium. The electing, non-serving spouse must elect coverage within 30 days of losing eligibility for coverage under the initial plan to fall within the special enrollment provisions.

Pension benefits

USERRA includes specific rules for employee pension benefit plans both during and after military leave. These rules apply to all employee pension benefit plans, whether they are defined benefit or defined contribution plans, including:

  • traditional pension plans
  • profit-sharing plans
  • 401(k) plans
  • 457 plans
  • 403(b) plans.

Military leave is treated as covered service with the employer for purposes of eligibility, vesting, and accrual. In other words, the time an employee is on military leave does not constitute a break in service. Once the employee returns from military service, the employee has the lesser of five years or three times the length of service to make contributions to the plan that the employee could have made during military leave. In addition, the employer has the same period within which to contribute an amount equal to the amount that would have been contributed if the employee had not taken military leave, without taking into account either earnings or forfeitures. If matching contributions would have been made with respect to any employee contributions had the employee contributions been made during the period of military leave, the employer is also obligated to make those contributions.

Employer/employee contributions

The employer is not required but has the option to make employer contributions to an employee pension benefit plan on behalf of an employee during the employee's military leave. The employer is also not required but has the option to allow the employee to make employee contributions during military leave.

Plan loans

If an employee borrowed against an employee pension benefit plan prior to commencing military leave, the Service Members Civil Relief Act requires that the interest rate on the loan be capped at 6% during the military leave unless a court determines that the ability of the employee to make payments on the loan is not materially affected by the leave. Interest rates on sums borrowed after active duty begins are not affected by this law. The interest rate cap applies even if the employee has not complied with the previously described requirements of USERRA.

In addition to the interest rate cap, the plan may suspend the obligation to make payments on the loan during the period of military service, no matter how long. This is an exception to the normal rule that a suspension of repayment obligation during a leave of absence may only last for one year. In addition, the period in which the loan must be repaid is extended by the period of military service. The schedule of payments on the loan must conform to one of the amortization schedules approved by the Internal Revenue Service.

Other benefits

Benefits other than health and pension benefits are also addressed in USERRA. For USERRA purposes, benefits include:

“any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan or practice and includes rights and benefits under … an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.” 

Benefits have been found to include such things as:

  • clothing allowance
  • housing allowance
  • law enforcement commission
  • training.

Benefits during military leave

An employee on military leave is entitled to the same benefits to which furloughed employees  or employees on another type of leave are entitled during the same period. If different types of leave of absences or furloughs provide different benefits, employees on military leave are entitled to the most advantageous benefits provided. Employees on military leave will be required to make the same employee contribution for benefits as employees on other types of leave. An employee on military leave is entitled to any benefit that the employee would be eligible for if the employee had not been on a military leave of absence. Therefore, an employee on military leave would be entitled to accrue sick days during military leave if persons on other types of leave are entitled to do so. However, the employee would not be eligible to purchase stock under an employee stock purchase plan if the employee was not otherwise eligible to participate in the plan, even though other employees who satisfy the eligibility requirements are entitled to purchase stock under the plan during periods of leave.

  • Vacation or sick day accrual - The employer is not required to allow the employee to accrue vacation or sick days during military leave, unless employees on other types of leave are allowed to accrue vacation or sick leave. If vacation or sick leave is not accrued over time, but rather is accrued in one annual lump sum, then an employee on military leave on the date of the lump sum accrual should be granted the entire lump sum to the extent employees on other types of leave would receive the full benefit.
  • Vacation or leave time - The employer cannot require an employee to use vacation or leave time that the employee had previously accrued during military leave, unless all employees are required to use that leave time. Therefore, if a plant shuts down every year for the week of Christmas and every employee is required to take vacation time during that one week period, any employees on military leave would also be required to take vacation time during that week.
    If an employee wants to take vacation or similar leave time while on military leave, the employer cannot refuse the request. If employees are allowed to accrue vacation or sick leave while taking vacation, the employees will accrue leave during any portion of the military leave in which the employees take vacation. Taking vacation would be advantageous for an employee who is on military leave if the employer has a use-it-or-lose-it policy for vacation days. For instance, if the employee had accrued a week of vacation prior to going on military leave and could not use it before the military leave starts, that employee would risk losing the week of accumulated time under the employer’s use-it-or-lose-it policy. This employee could request use of this vacation time during the military leave and would, therefore, be paid for the vacation time during the military leave and not entirely lose its value.

Benefits upon return from leave

Under USERRA, an employee is entitled, upon return from military leave, to the seniority and benefits based on seniority, that the employee had immediately prior to the leave, plus the additional seniority and seniority-based benefits that the employee would have attained if the employee had been continuously employed with the employer during the military leave.

The employee is also entitled, upon return from military leave, to all benefits that are not based on seniority in the same manner as any employee on any leave of absence is entitled to upon return from leave. If the treatment of other types of leave varies, the returning employee is entitled to the most favorable benefits afforded for some other type of leave, regardless of the type of leave or if it is paid or unpaid. In no event is the employee entitled to any benefits to which the employee would not otherwise be entitled if not for the military leave. The employee returning from military leave will be required to make the same employee contribution for benefits as employees returning from other types of leave.

  • Vacation or sick day accrual - Once the employee returns to work, the employee is entitled to accrue the number of vacation and sick days per year that the employee would be accruing if the employee had remained in employment during the period of active duty. Thus, if employees with up to five years of service with the employer have two weeks of vacation per year and employees with more than five years of service have three weeks, an employee who worked for the employer for four years before leaving for a two-year tour of active duty would be entitled to three weeks of vacation per year upon return.
  • Vacation or leave time - If vacation or sick days are non-seniority based and persons on other types of leave are credited once they return to work with the vacation or sick days that would have accrued during the leave had they been continuously employed, the employer is obligated to do the same for employees returning from military leave. If vacation or sick days are seniority-based, the employee is entitled upon return from military leave to be credited immediately with all vacation or sick days the employee would have accrued during the military leave except any days that would have been lost under a use-it-or-lose-it policy.

Family and Medical leave

Generally speaking, an employee is eligible for FMLA leave if the employee worked for a covered employer for at least 12 months before the beginning of the FMLA leave and worked at least 1,250 hours as of the date the FMLA leave would begin. An employee returning from military leave is treated, for FMLA purposes, as having worked for the covered employer during the period of military leave. In addition, the employee returning from military leave is treated, for FMLA purposes, as having worked the number of hours during the period of military leave as the employee would have worked if the employee had not gone on military leave. Thus, an employee who normally works a 40-hour week and who goes on a 26-week tour of duty, will for FMLA purposes, be treated as having worked for the covered employer during the 26 weeks of military leave. In addition, the employee will be deemed to have worked 1,040 hours (26 weeks at 40 hours per week) during the period of military leave.

Severance benefits

If an employer experiences a downsizing or reorganization while an employee is on military leave, the employee on military leave should be considered along with other employees who are not on military leave. If the position of an employee on military leave eliminated, he or she will be entitled to any severance benefits based on length of service that are provided. If the downsizing or reorganization occurs after the employee returns from military leave, the period of military leave must be counted in determining eligibility for and the amount of any severance benefit.

Employee loans

If an employee borrowed money from an employer prior to beginning military leave, the interest rate on the loan must, upon the employee’s request, be capped at 6% during the military leave. Interest rates on sums borrowed after active duty begins  are not affected by this law. There is no obligation to inform the employee of this right and the employer need not adjust the rate unless the employee specifically requests it. If the employee specifically requests a rate adjustment, the request may be denied if the employer can prove that the employee is not financially affected by the active service. If the employer is providing differential pay, it is unlikely that the employee is financially affected. This interest rate cap applies even if the employee has not complied with the previously described requirements of USERRA. 

Once military leave is completed the interest rate on the loan may return to a rate that is determined under the terms of the loan agreement. Any interest that was not paid due to the cap cannot be recovered by the plan.

Minnesota law protects employees

Minnesota law also places several limitations upon Minnesota employers. Under Minnesota law, employers are prohibited from:

  • discharging an employee because of membership in the military forces
  • hindering or preventing an employee from performing any military service that the employee may be called upon to perform by proper military authority
  • dissuading any person from enlistment in the military service by threat or injury in respect to that person's employment, trade, or business
  • discharging or taking adverse employment action against any employee because that employee has a spouse, parent, or child in the military forces
  • hindering or preventing an employee from attending the following kinds of events related to the military service of the employee’s spouse, parent, or child:
    • departure or return ceremonies for deploying or returning military personnel or units
    • family training or readiness events sponsored or conducted by the military
    • events held as part of official military registration programs.

Protections from discrimination, termination or retaliation

Discrimination 

USERRA protects individuals from all types of employment discrimination and retaliation based on membership in the uniformed services. USERRA provides that an employer may not refuse to hire, promote, or retain an employee based (in whole or in part) on that employee’s membership in the uniformed services, and the employer also may not terminate those individuals or deny them any benefit of employment on that basis. An employer can be liable for discrimination under USERRA even if military service is only one of several reasons the employer took an adverse action against the employee.

USERRA specifically provides that an employer may not terminate an employee without cause following military leave for a specified period of time. Specifically, an employee who has been reemployed under USERRA cannot be discharged from employment except for cause for a particular time period, based upon the length of service:

  • service of 30 to 180 days – within 180 days after the date of reemployment
  • service of 181 or more days – within one year after the date of reemployment.

USERRA and its regulations do not define what constitutes “cause” that would justify a termination during the protected time period. However, it appears that virtually any reason other than the employee’s military service will be sufficient cause for termination. It is important to note that only employees who are eligible for reemployment (see Requirements for returning from military leave) are entitled to this protection from termination.

Retaliation 

Employers are prohibited from taking any adverse employment action against an employee because that employee has sought to enforce rights under USERRA, testified in a proceeding to enforce USERRA, or has assisted or participated in an investigation under USERRA. However, employees who are dishonorably discharged from military service are not protected under this provision.

Enforcing requirements

Under USERRA, a person who claims that an employer has failed or refused to comply with USERRA may either file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS) or federal court. All VETS information is available at:

If the person files a complaint with VETS and VETS determines that the complaint is valid, VETS will attempt to resolve the complaint by making reasonable efforts to ensure that the employer complies with USERRA. If these efforts fail, VETS will notify the person of the results of its investigation and of the person’s right to file a complaint against the employer in federal court. A person who receives a notification from VETS of an unsuccessful effort to resolve a complaint may request that VETS refer the complaint to the Department of Justice. The Department of Justice may appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted. The Department of Justice may also commence an action on the employee’s behalf in federal court. Remember that the person does not have to file a complaint with VETS and may directly go to federal court.

Statute of limitations 

USERRA does not contain a specific provision setting the applicable limitations period and it even specifically prohibits the application of state statutes of limitations. One court reviewing this issue determined that the appropriate statute of limitations for a USERRA action is four years (based on the fallback four-year statute of limitations created by Congress for federal causes of actions not having their own limitations period).

Damages 

The remedies available to a person who has been damaged by an employer’s violation of USERRA include:

  • injunctive relief (in general, a court order that requires the employer to stop a particular action)
  • an award of the wages and other benefits (including overtime and vacation pay) the employee would have received
  • reimbursement of court costs and legal fees
  • in the case of a willful violation, liquidated damages such as double lost pay and benefits. 

Courts are prohibited from taxing costs against a losing claimant under USERRA.

Employers also need to be aware that even if an employee cannot prove monetary damages because of a violation of USERRA, this does not mean that the court would not be authorized to approve an award of attorney’s fees and costs to a prevailing claimant.

Required poster 

Employers are required to provide to persons entitled to rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA. Employers may provide the notice by posting it where employee notices are customarily placed. However, employers are free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (for example, by handing or mailing out the notice, or distributing it via electronic mail). A copy of the poster can be downloaded from the Department of Labor website at:

Where to go for more information

The U.S. Department of Labor maintains a website to assist employers in complying with their obligations under USERRA at: