Labor and Employment

USERRA May Help You Avoid Being Laid Off

One of the first casualties of a bad economy is jobs. It's an ugly cycle. People either make less money or lose their jobs, they reduce their spending, and businesses can't sell their goods or services. Employers are then forced to lay off workers because there's not enough money coming in to make the payroll.

During such times it seems that no one's job is safe. However, some workers may have more job security than others. For example, the Uniformed Services Employment and Reemployment Rights Act (USERRA) gives veterans and active members of the US armed forces valuable benefits with respect to keeping their jobs. In fact, it may help you avoid a layoff.


USERRA was enacted in 1994, primarily as result of US military action in the Persian Gulf. The law is designed to protect your job and work-related benefits, such as your pension and insurance benefits, when you need a temporary leave of absence for military service. It does this by requiring employers to rehire you for the same or substantially similar job you had at the time you left for military service.

In fact, you're entitled to the job you that you would've gotten if you hadn't left, with the same seniority, benefits, and pay, and any other rights and benefits that are based on seniority. This is known as the escalator principle. Imagine that you're a "level 2" worker at the time you're called to active duty. When you come back from duty, your employer must rehire you as, at least, a level 2 worker. And, if you would've been promoted to level 3 if you hadn't left for service, you have to be rehired as a level 3. You get back on the escalator at the same spot where you would've been if you had never left for service.

USERRA covers practically everyone who's in or has served in the US military, including part-time and seasonal workers, as well as workers who are on "probation" at the time they're called to active duty. And, the law applies to all employers, including the federal, state, and local governments, regardless of size. So, even the business with one employee has to follow USERRA.

Generally, to qualify for USERRA's protections, you have to:

  • Be absent from your job because of active military service
  • Notify your employer in advance that you've been called into service
  • Have a total of five years or less military service while you've been working for the same employer
  • Reapply for work with the employer, or simply report for work, within a certain time period, which is based upon the length of your leave of absence. The period of time ranges from a few days (allowing for travel and rest) to 90 days
  • Be honorably discharged, unless you're still an active member of the military, such as being in the Reserves

USERRA & Layoffs

Applying USERRA to your employment is pretty straightforward when your job and your employer are still around when you return from service. What happens if the economy takes a downturn while you're away and your employer starts making layoffs? The USERRA may still help.

If you and other employees are laid off while you're on military leave, or if the job you had was eliminated altogether, you still may have a right to re-employment. That's because of the escalator theory. You are entitled to keep your seniority while you're away. So, if you hadn't been called to duty, there's a possibility that you could've "bumped" another employee with less seniority out of the way of an open job. Or, maybe you could've found another, different job with your employer.

Generally, you can't be laid off simply because there were advances in technology or changes in the employer's methods while you were on active duty. The employer must make reasonable efforts to retrain you on the new technology or processes.

USERRA can't shield you from all layoffs, however. For example, if your employer doesn't make job-related decisions based on seniority, and you would've been laid off even if you hadn't been on military leave, then you generally can't avoid the layoff once you return from duty. A good example of is when an employer makes a reduction in force (RIF) such as when it shuts down all or part of its operations.

Similarly, if you and co-workers are laid off with the expectation that you'll be rehired or "recalled," then, absent seniority and bumping rights, it's possible that you'll be rehired to a laid-off position when you return from service. USERRA isn't meant to put you into a better position than you would've enjoyed if you weren't called up. Rather, it's just supposed to make sure you're treated fairly while you're away.

Questions for Your Attorney

  • Before I got called to active duty, I was an assistant manager at a store that's part of a national chain. When I returned, my manager said I could either be laid off or take a job with another store 50 miles away. Can he do that?
  • Can I apply for a promotion in my civilian job while I'm overseas on active duty, and must my employer choose me for the position?
  • Am I entitled to employer-paid 401(k) contributions or commission and incentive pay while I'm on active duty?
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