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.
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:
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:
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.
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.
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.
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.
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:
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.
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 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.
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:
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:
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.
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:
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.
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:
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 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.
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.
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:
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.
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.
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.
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:
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.
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.
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.
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.
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 also places several limitations upon Minnesota employers. Under Minnesota law, employers are prohibited from:
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:
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.
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.
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.
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).
The remedies available to a person who has been damaged by an employer’s violation of USERRA include:
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.
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:
The U.S. Department of Labor maintains a website to assist employers in complying with their obligations under USERRA at:
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Military leave — Minnesota
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Appendix A: Recordkeeping requirements
Appendix B: Posting Requirements