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ASA DIX LEGAL BRIEF

A PREVENTIVE LAW SERVICE OF THE JOINT READINESS CENTER LEGAL SECTION UNITED STATES ARMY SUPPORT ACTIVITY DIX KEEPING YOU INFORMED ON YOUR PERSONAL LEGAL NEEDS

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

Q: What is USERRA? USERRA (38 United States Code section 4301) protects the job rights of military reservist and National Guard personnel and is a comprehensive revision of the federal law of veterans’ employment rights. USERRA applies to virtually all employers and protects the rights of those who serve with the regular component, reserve component and National Guard in active federal military service.

Q: Which employers are covered by USERRA? USERRA applies to all private employers, states, branches of federal government, and union hiring halls and similar entities to which employers have delegated employment-related responsibilities. There is no exception for small employers.

Q: Who is eligible for USERRA protections? To obtain USERRA's protections, a service member must meet each part of the following five-part test:

(1) Job. The service member must have had a civilian job before the period of active duty in question. All jobs are covered, except jobs for a brief, nonrecurrent period and in which there is no reasonable expectation that such employment will continue indefinitely for a significant period. (2) Notice. The service member must give advance notice to the employer before leaving for active duty unless it is a classified mission or when notice is impossible. Notice can be oral or in writing, but written notice is easier to prove. The employer cannot refuse permission for an absence for military duty. While no specific notice period is provided in USERRA, a service member should provide as much advance notice as possible to his or her employer. There have been cases where courts upheld the firing of service members who withheld notice of active duty for training until the last moment. (3) Duration. All service members are entitled to five years of protected absence. Absences with any one employer are cumulative and include absences protected under prior law (The Veterans' Reemployment Rights Act). The service member may be able to exclude certain absences from the five-year limit such as periodic and special Reserve and National Guard training and service connected with war or national emergency. (4) Character of service. The service member must receive an honorable or general discharge for the service in question. Service members with less favorable discharges or who were dropped from the rolls because of AWOL or desertion are not protected by USERRA. If the period of absence was 31 days or longer, the employer is entitled to ask the service member for proof of character of service, listed on DD Form 214. (5) Timely request or reapplication for work. The service member must return to work within a reasonable period of time after completion of service. The definition of "reasonable" depends on how long the service member was gone. For absences of up to 30 consecutive days, the service member is entitled to safe travel time from place of duty to his or her residence plus eight hours of rest. The service member must "report" to work at the beginning of the first normal shift on the full calendar day following this period. For absences of 31 to 180 days, the service member must "apply" for work not later than 14 days after completing service. USERRA does not require that applications be in writing, but it is a good idea. Service members should make clear that they

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