The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that gives job protection and other rights to employees who serve in the uniformed services. USERRA prohibits private employers from discriminating or retaliating against employees based on their uniformed service and ensures that those employees receive certain benefits and reemployment rights, as well as limited protection from termination, upon return from military leave.
Massachusetts also has a military leave statute that applies to individuals who leave work to receive military training with the armed forces of the United States.
This chapter provides a summary of the key provisions of USERRA and the Massachusetts military leave law.
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” broadly includes:
The phrase “service in the uniformed services” is defined as the performance of a duty on a voluntary or involuntary basis in a uniformed service, and includes:
Massachusetts formerly had a military leave law, but the legislature has repealed it. Accordingly, workers in Massachusetts who are military service members now have the same rights and privileged granted by USERRA.
Massachusetts law does, however, provide a veteran and members of the Department of War Veterans with the right to take protected leave to participate in a Veterans Day or Memorial Day exercise, parade or service, with or without pay.
USERRA does not protect employees who leave civilian employment to pursue a full-time career in the military.
Unlike other leave laws, an employee is eligible for protected leave under USERRA and Massachusetts law regardless of how long he or she has worked for the employer. In fact, USERRA provides rights and protections to part-time and probationary employees and even to job applicants of private employers. However, USERRA does not cover temporary employees who are hired for a brief, non-recurrent period, where there is no expectation that the employment would continue for an indefinite or significant period of time.
USERRA applies to all employers in the United States, including private companies of any size, tax-exempt entities, and federal, state, or local governments and agencies. In addition, some courts have found that individuals may be liable for discrimination or retaliation under USERRA.
USERRA requires employers to allow covered employees to be absent from work to provide service in the uniformed services. USERRA creates job protection not only for the time that the employee is out on military leave, but also for the time needed to travel to and from military duty.
Employers must allow an employee to take a military leave of absence. Specifically, an employer must excuse employees from work to attend inactive duty training (such as weekend drills or annual military training summer camp) or other service in the uniformed services.
USERRA entitles an employee to job protection for a cumulative five-year period, at which point the employer may refuse to reemploy the absent employee.
An employee must give written or verbal notice to the employer prior to the military leave, unless military necessity precludes the ability to provide notice. USERRA does not require that the employee submit official documentation of his or her military orders at the time the employee requests the military leave of absence because the military typically issues orders on an informal basis.
To take leave for military training under Massachusetts law, an employee must give notice to his or her employer of the date of departure and the date of return for military training. After the satisfactory completion of the training, the employee must provide his or her employer with notice of the completion.
An employer may not require an employee to reschedule drills, military training, or other military duty obligations to suit 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 if the duty could be rescheduled or performed by another servicemember. If the commander determines that the employee’s military duty cannot be rescheduled or performed by another servicemember, the employer must permit the employee to perform his or her military duty.
The employer may not require an employee to arrange for someone to cover his or her work duties during the absence from work.
USERRA requires private employers to reemploy eligible employees who have served in the uniformed services, subject to certain conditions. USERRA includes detailed provisions concerning the position into which an employee must be placed upon his or her return from military leave.
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 Uniformed Services Employment and Reemployment Rights Act:
USERRA does not define what it means to submit an application for reemployment. While a formal application is probably not necessary, something more than a mere inquiry concerning employment is usually required. Courts have found that an employee’s mere inquiry to his employer about work conditions did not constitute an application for reemployment under USERRA.
The employer may not simply terminate the employment of an employee who fails to return to work within the outlined deadlines. If an employee fails to meet the USERRA reapplication deadlines, the employer should apply its standard disciplinary procedure for employees who are absent from scheduled work. Ultimately, if the employer follows its standard discipline procedure for unexcused absences and the employee does not return to work, the employer may terminate his or her employment.
The employer is not obligated to reemploy a person returning from military service if:
An employer should generally reinstate a returning employee to the position she or he would have held had the military service not interrupted the employment. However, the law recognizes that goal is not always possible. USERRA bases an employer’s reinstatement requirements on the length of the military service (excluding travel).
These requirements do not apply to employees who became disabled – or whose disability became aggravated – during the uniformed service.
In Massachusetts, an employee who is absent for military training not exceeding 17 days in a calendar year and is still qualified to perform his or her duties, must be restored to his previous or a similar position with the same status, pay, and seniority.
USERRA includes detailed provisions concerning the compensation that an employee is entitled to receive during military leave and upon return from military leave.
The employer is not required to pay the employee during military leave. However, under the Fair Labor Standards Act (FLSA), the employer may not reduce an exempt employee’s pay for absences due to military leave in any workweek in which the employee performs any work for the employer. Thus, if an exempt employee works a partial workweek before or after the military leave, the employee must be paid for the entire week. In addition, if an exempt employee continues to work for the employer during military leave, by telecommuting or otherwise, the employer must continue to pay the employee. In all cases, however, the employer may reduce the pay by any military pay received by the employee. This reduced pay (the difference between military pay and the employee’s civilian pay) is called differential pay. Other employers 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 Returning from leave), the employer must 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, including:
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 which were granted during the period of military leave.
USERRA includes 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 above, namely:
USERRA has specific rules for the provision of benefits under an employer-sponsored health plan 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 includes all health plans, regardless of the number of participants, the size of the employer, or whether the employer is a government entity or church.
The employee and his or her 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 the 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. Thus, a health plan may exclude from coverage an injury or illness incurred as a result of military service under these circumstances.
If the plan does not include this exclusion, the plan’s preexisting condition limitations, if any, would apply – but, in all likelihood, the employee would have sufficient “creditable coverage” from the military’s health plan 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 commencement of military leave, that period is suspended during the military leave and resumes again when the employee returns to work.
The employer is not required to make employer contributions for health coverage for an employee or his or her family 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 commencement of military leave in a manner similar to COBRA. In addition, the employee’s spouse may have a special enrollment right which would allow the family to be covered under the spouse’s health plan.
Under USERRA continuation coverage, if an employee and any dependents are enrolled in a health plan immediately prior to military leave, they may remain on the health plan for the lesser of:
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 for 30 days or less, the employee and his or her dependents must be maintained on the employer’s health plan during the leave with an employee contribution no greater than that required of other employees. There is no notice requirement for USERRA continuation coverage.
If the Consolidated Omnibus Budget Reconciliation Act (COBRA) applies to the health plan, it is triggered by the start of military leave (when the employee’s hours are reduced); and the employer must provide notice according to COBRA. COBRA continuation coverage applies even though the employee and his or her family are eligible for coverage under military health coverage (known as TRICARE).
Generally, unless a spouse or dependent is disabled, the employee and his or her family will receive the same coverage for the same cost under COBRA and USERRA. In both cases, if, during the military leave either:
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.
COBRA is triggered by an employee’s reduction in hours at the start of military leave, therefore, if the employee chooses not to return to work at the end of the military leave, this choice will not trigger COBRA.
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 spouse is otherwise eligible for coverage as an employee under a different employer sponsored plan, rather than electing continuation coverage, the family may elect coverage under the non-serving spouse’s plan. This may be less expensive than electing continuation coverage if the spouse’s employer pays a portion of the premium. The electing spouse must elect coverage within 30 days of losing eligibility for coverage under the initial plan to fall within the special enrollment provisions.
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 TRICARE coverage for his or herself and dependents. Ongoing COBRA continuation coverage does not terminate when an individual or his or her family qualifies for TRICARE.
USERRA includes specific rules for employee pension benefit plans during and after military leave. These rules apply to all employee pension benefit plans, including:
Under USERRA, military leave is covered service with the employer for purposes of eligibility, vesting, and accrual. The time an employee is on military leave does not constitute a break in service. Once the employee returns from military leave, she or he has the lesser of:
to make contributions to the plan that the employee could have made during military leave. In addition, the employer has the same period to contribute an amount equal to the amount that would have been contributed during military leave, without taking into account either earnings or forfeitures. If the employer would have made matching contributions in connection with any employee contributions, the employer is also obligated to make those contributions.
The employer is not required to, but could choose to, make employer contributions to an employee pension benefit plan on behalf of an employee who is on military leave. The employer is also not required to, but could choose to, allow the employee to make employee contributions during military leave.
If an employee borrowed against his or her employee pension benefit plan prior to commencing military leave, the Department of Labor 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. Any borrowing after active duty begins is 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 military service, regardless of length of service. This is an exception to the normal rule that a repayment obligation during a leave of absence may only be suspended 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.
Benefits other than health and pension benefits are also addressed in USERRA. Under USERRA, 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 may include such things as:
An employee on military leave is entitled to the same benefits as employees who are on furlough or another type of leave of absence 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 under those other types of leave. 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 not entitled to any benefit that the employee would not be eligible for if not for the military leave.
If an employee wants to take vacation or other leave time while on military leave, the employer may not refuse the request. If the employer permits employees to accrue vacation or sick leave while taking vacation, the employee on military leave must accrue leave during any portion of the military leave in which the employee takes vacation.
Upon return from military leave, an employee is entitled to the seniority and benefits that the employee had immediately prior to military leave, as well as the seniority and benefits that the employee would have attained if the employee had been continuously employed with the employer during the military leave.
For benefits that are not based on seniority, the employee is entitled to benefits in the same manner as any employee returning from a furlough or leave of absence. If the treatment of other types of leave varies, the returning employee is entitled to the most favorable benefits afforded another type of leave, regardless of the type of leave or if it is paid or unpaid.
The returning employee is not entitled to any benefits that he or she would not otherwise be entitled to without 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.
An employee is entitled to leave under the Family and Medical Leave Act (FMLA) if the employee worked for a covered employer for at least 12 months before the beginning of the FMLA leave, and during that time worked at least 1,250 hours. 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 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 he or she 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 be treated upon return, for FMLA purposes, as having worked for the covered employer during the 26 weeks of military leave. In addition, the employer should treat the employee as having worked 1,040 hours (26 weeks at 40 hours per week) during the period of military leave.
As explained in detail in Chapter 17: Family and medical leave, in 2009, the DOL implemented new regulations expanding protection to employees under the FMLA to care for injured service members and to prepare for calls to active duty in the Armed Forces.
If an employer experiences a downsizing or reorganization while an employee is on military leave, the employer should consider the employee on military leave with other employees who are not on military leave. If the employer eliminates the position of an employee on military leave, the employee is 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.
If an employee borrowed money from his or her employer prior to commencing military leave, the employer must cap the interest rate on the loan at 6% upon the employee's request during the military leave. However, if an employee borrows money from his or her employer after active duty begins, the employer is not required to cap the interest rate.
USERRA does not require the employer 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 (for instance, the employer provides the employee with differential pay). The interest rate cap applies even if the employee has not complied with the previously described requirements of USERRA.
When military leave is complete, the interest rate on the loan may return to a rate determined by the terms of the loan agreement. The employer may not recoup any interest foregone during the period of the capped rate.
Under Massachusetts law, the period of absence for military training should be construed as an absence with leave and, subject to the employer’s discretion, may be with or without pay.
The absence for military training should not affect the employee’s right to receive normal vacation, sick leave, bonus, advancement and other advantages of his or her employment normally anticipated by the position.
USERRA protects individuals from discrimination and retaliation based on membership in the uniformed services. Specifically, the law states that an employer may not refuse to hire, promote or retain an employee based in whole or in part on his or her membership in the uniformed services, and it may not terminate an individual or deny him or her any benefit of employment on that basis. An employer may 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 states that an employer may not terminate an employee without cause following military leave for a specified period of time. Therefore, when an employee returns from military leave, his or her employment status changes from at-will to contract. When an employer reemploys an individual after military service, she or he may not be discharged from employment except for cause for a specific time period, based upon the length of service:
The burden of showing cause is on the employer. The statute does not describe what constitutes “cause” that would justify a termination during the protected time period. However, under recent USERRA regulations, “cause” for discharge exists if either:
It is important to note that only employees who are eligible for reemployment (employees who meet the six criteria described previously) are entitled to this protection from termination.
Employers are prohibited from taking any adverse employment action against an individual because he or she has taken an action to enforce USERRA rights, has testified in a proceeding to enforce USERRA rights, or has assisted or participated in an investigation under USERRA. However, individuals who are dishonorably discharged from their military service are not protected under this provision.
Under USERRA, an employee may waive non-seniority-based rights if, before or during the employee’s service, the employee communicates to the employer the intent not to return to work following the employee’s service. However, the waiver must be both:
In contrast, employee waivers of seniority-based rights and benefits are unenforceable if they are made before or during an employee’s service in the uniformed services. An employee may waive the right to reemployment only when the employee’s service in the uniformed services has concluded. Even then, such a waiver must be knowing, voluntary, specific and clear.
A person who claims that his or her employer has failed or refused to comply with USERRA may either file a complaint with the Veterans’ Employment and Training Service (VETS) (which is a Department of Labor agency) or file a complaint in federal court.
If the employee files a complaint with VETS and VETS determines that the complaint is substantiated, 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 employee of the results of its investigation and the employee’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 and commence an action on the employee’s behalf in federal court. An employee does not have to file a complaint with VETS and may individually file a claim in federal court.
USERRA does not specifically address the timeframe within which an employee must file a claim under USERRA. While USERRA includes no deadline for filing a claim, the court will assess whether the plaintiff’s delay in bringing action is unreasonable. If a plaintiff waits too long to file a claim, the court may bar his or her claim.
The remedies available to individuals who have been aggrieved by violation of USERRA include:
Courts may not tax costs against a losing plaintiff under USERRA.
Even if an employee does not prove that he or she suffered any monetary damages because of a violation of USERRA, the court may approve an award of attorney’s fees and costs to a prevailing plaintiff.
An employee may sue his or her employer for violation of the Massachusetts military leave law. The employee may recover damages for non-compliance with the law or may request an order from the court for equitable relief based on the circumstances.
The Veterans Benefits Improvement Act of 2004 amends USERRA by requiring employers to provide their employees with notice of their rights under USERRA. The statute states that an employer may meet the requirements of these provisions by posting the notice where employers customarily place notices. A copy of the required USERRA poster is available online at:
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Military leave — Massachusetts
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Compliance thresholds — Massachusetts
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Appendix A: Recordkeeping requirements
Appendix B: Posting requirements