We have all seen the acronym USERRA in the news and if you are like most people you don’t what it is or how it affects school districts. Over the next few months, we will cut through the complexity and illustrate how this seemingly military act affects public schools.  In order to truly understand how USERRA will affect the schools when the troops come home, we need to first examine the very basics of who is covered, what services are covered and for how long.  Although, this first part of the series may read like boring stereo instructions, it will provide the necessary background for understanding your obligations when one of your employee’s who is also a service member wants to come back to work.

What is USERRA and why should you care? 

USERRA is the Uniformed Services Employment and Reemployment Rights Act.  Congress enacted USERRA in 1994 to replace the Veterans Reemployment Rights Act (VRRA) in order to “clarify, simplify, and where necessary, strengthen the existing veterans’ employment and reemployment rights provisions.”[1] 

USERRA has three main purposes:

(1)   to prohibit discrimination against persons because of their past, present, or future service in the uniformed services[2] (this discrimination prohibition applies to all areas of employment, including hiring, promotion, reemployment, retention in employment and benefits);

(2)   to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers caused by military service[3] and;

(3)    to minimize the disruption military service causes to service members, their employers, their fellow employees, and their communities.[4] 

USERRA applies to virtually all employers including both public and private sectors.  Private sector and state employees have the ability to obtain judicial relief for USERRA violations by filing a complaint with the Department of Labor, Veterans Employment and Training Service (VETS).  If the complaint has merit then it can be prosecuted by the U.S. Attorney’s Office.[5]  USERRA also permits private sector employees to file suit in federal district court without first filing a complaint with VETS.

So what are your obligations and rights as an employer regarding employees qualifying for protection under USERRA? 

Let’s first examine who is eligible for reemployment rights under USERRA. 

What uniformed services are covered? 

Uniformed services consist of the following:

(1)   Army, Navy, Marine Corps, Air Force, or Coast Guard;

(2)   Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve;

(3)   Army National Guard or Air National Guard;

(4)   Commissioned Corp of the Public Health Service; and

(5)   Any other category of person designated by the President in time of war or emergency.[6] 

Members of the Army National Guard and Air National Guard are covered when they are on full-time National Guard duty, are engaged in active or inactive duty for training, or have been activated by the President.  National Guard service on behalf of a state, commonwealth or territory is not protected by USERRA.[7]  For example, military service for National Guard duty called out to address a disaster in a state like the Katrina Hurricane disaster in Louisiana would not be protected under USERRA.

What military service is covered? 

The types of military service covered include active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and examinations to determine a person’s fitness for military service or continued military service, funeral honors duty performed by National Guard or reserve members.[8] 

How long of a duration of service is covered? 

Employees may be absent from work due to military service for a cumulative five year period.[9]  However, employers should be very aware that there are eight significant exceptions to the five-year rule that can extend an employee’s cumulative military service well beyond five years. 

The first exception is service beyond five years to complete the initial period of obligated service.[10]  For example, some military specialties, such as nuclear power and aviation programs require an initial active service obligation longer than five years. 

The second exception is service from which a person, through no fault of his own is unable to obtain a release within the five-year limit.[11]  For example, the five-year limit will not apply to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. 

The third exception is the required training for reservists and National Guard members[12] and is the most commonly used.  The two-week annual training sessions and monthly weekend drills are exempt.  Required training also includes attendance at schools and courses for individual professional development.  The professional development course usually last from several weeks to a year. 

The fourth exception is service under an involuntary order to, or to be retained on, active duty during a domestic emergency or national security related situations.[13] 

The fifth exception is service under an order to, or to remain on, active duty (other than training) because of a war or national emergency declared by the President or Congress.[14]  This applies to service members who are ordered to active duty involuntarily and to those who volunteer for active duty. 

The sixth exception is active duty (other than training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent.[15] 

The seventh exception is service by volunteers who are ordered to active duty in support of a “critical mission or requirement” in times other than war or national emergency and when no involuntary call is in effect.[16] 

And the last and final exception is federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States.[17] 

Now you know which uniformed services are covered, what types of service are protected and for how long.  The second part of this article will examine the rights these covered employees have related to their re-employment after military service and your obligations as an employer to those employees.

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