How do I Get Military Employment Protection?
Members of the National Guard and Reserves occasionally get called up for military service. It's part of the deal and requires time away from their civilian jobs. Thankfully, federal law requires all employers to reemploy service members once they return from their assignment with the military. Employment protection for service members is regulated by the Uniformed Services Employment and Reemployment Act (USERRA), a federal law that also prohibits employment discrimination on the basis of one's military service or obligation.
It's reassuring that you can't lose your job, benefits, or even a promotion while serving your country. But you should familiarize yourself with the process and learn how to file a complaint if you believe your USERRA rights have been violated. See What is Military Employment Discrimination? for an in-depth explanation of the law and its protections.
Give Notice Before You Leave
Even though federal law protects your civilian job status while you serve your country, you still have certain obligations to your employer. First and foremost, you need to provide advance written or verbal notice of your pending military service. The law doesn't state how much advance notice is required, only that you must provide notice "as far in advance as is reasonable under the circumstances."
What if you simply can't give notice? Say you are called up in an emergency or otherwise unable to give notice. You’re still protected by USERRA, as long as all other eligibility criteria are met. In most cases, though, you will have the opportunity to notify your employer before your active duty obligation begins.
There are no filing or reporting requirements for you or your employer, although your employer may ask your commanding officer for proof of a military service requirement, which could simply be a copy of your orders or a signed memorandum from your commanding officer.
Reapply for Your Job After You Return
Upon discharge from service, you must reapply for your job (or simply report back to work) within the appropriate amount of time. If you’re recovering from a service-related illness or injury, USERRA will protect your job for up to two years from the date of service discharge. If you’re disabled as a result of your service, your employer is required to make "reasonable efforts" to accommodate you.
Your employer may require proof of military service lasting 31 days or more, in which case your application should include documentation establishing that:
- Your application is timely;
- You have not exceeded service limitations; and
- You meet all other USERRA eligibility criteria.
Have Your USERRA Rights Have been Violated?
You shouldn't assume that your employer will provide you with all of USERRA’s employment protections as many employers, especially small business owners, may not be familiar with all of their obligations under the law. You may need to remind your employer of the law's protections. The U.S. Department of Labor provides a helpful notice of your rights under USERRA, which you can provide to your employer.
Remember, however, that you may not qualify for USERRA’s protections if:
- The company's circumstances have made your reemployment unreasonable;
- Your reemployment would impose an undue hardship; or
- The job was for a brief period of time and there was no reasonable expectation that employment would continue.
Also, USERRA only covers up to five years of cumulative military service. So once you perform five total years of military service while working for the same employer, they are not obligated to reemploy you.
If you have a disagreement with your employer over USERRA eligibility or terms, your employer may contact Employer Support of the Guard and Reserve (ESGR) at 1-800-336-4590. An ESGR ombudsman can answer questions about USERRA and provide informal mediation services, if necessary.
How to File a USERRA Claim
If you believe your USERRA rights have been violated, the Veterans' Employment and Training Service (VETS) within the Department of Labor (DOL) provides two ways to file a claim (follow link for form instructions):
1. Submit a signed copy of Form 1010 (PDF) to:
Veterans' Employment and Training Service
U.S. Department of Labor
ATTENTION: Form 1010
61 Forsyth Street, S.W., Room 6T85
Atlanta, Georgia 30303
Fax: (404) 562-2313
2. Submit Form 1010 online at the VETS 1010 Form Online Submission site.
Free Legal Assistance
Military service members and their family have access to free legal assistance for service-related matters, including USERRA claims. Search the DoD's Military Installations portal to find legal services near you. You can also search by military branch:
Military employment protection through USERRA usually is granted without a dispute. Consider contacting a military law attorney if you have additional questions or need legal help.