Overview of USERRA
With military engagement on the rise, including in the Middle East, employers are increasingly navigating questions about their obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA establishes three core categories of employer obligations:
- A prohibition on discrimination and retaliation based on an employee’s military membership, service, or obligations;
- Continuation of benefits during military leave; and
- A broad right to reemployment for returning service members.
Compliance missteps can expose employers to significant liability—including back pay, lost benefits, liquidated damages, and reputational risk.
Who Is Covered?
USERRA covers all public and private employers, regardless of size, and protects all employees who are absent from work to perform service in the uniformed services, whether the service is voluntary or involuntary, and regardless of the employee’s status (part-time, temporary, or probationary). USERRA generally requires employees to provide advance notice of military service; however, that requirement does not apply where military necessity precludes notice or where providing notice is otherwise impossible or unreasonable.
What Are the “Uniformed Services”?
“Uniformed services” is defined broadly under USERRA. In addition to service in the Armed Forces (Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard) and the Army and Air National Guard (including training), it also includes service in the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration; members of the National Urban Search and Rescue Response System during a period of appointment into federal service; intermittent personnel appointed into Federal Emergency Management Agency service (or to train for such service); and any other category of individuals designated by the President during a time of war or national emergency.
USERRA’s “Escalator Principle”
USERRA adopts the “escalator principle,” which requires employers to reemploy a returning service member in the position the employee would have attained with reasonable certainty if they had remained continuously employed, with full seniority.
In practice, this means that if an employee would have been promoted with reasonable certainty had they not been absent for military service, that employee is entitled to that promotion upon reinstatement, even if doing so “bumps” the current occupant. The escalator position may be either up or down the escalator.
USERRA also entitles returning employees to any “seniority-based” benefits (i.e., those based on longevity in employment) that they would have earned had they not taken military leave.
Benefits During Military Leave
Employees on military leave are entitled to the same “non-seniority-based” rights and benefits that are available to employees on comparable non-military leaves of absence, whether paid or unpaid.
Employees may elect to continue their employer-sponsored health insurance coverage for up to 24 months during military leave.
In addition, while employees may choose to use accrued paid time off during military leave, employers may not require them to do so.
Pay During Military Leave
USERRA generally does not require employers to pay employees during military leave. However, the analysis does not end there. Military leave must be treated the same as comparable non-military leaves of absence. As a result, if an employer provides paid leave for a comparable type of absence, such as jury duty or bereavement leave, it may be required to extend that same paid leave benefit to employees on military leave as well.
Courts have developed a three-factor test to determine whether military leave is comparable to other forms of paid leave: (1) the duration of the leave; (2) the purpose of the leave; and (3) the extent to which the employee has discretion over when to take the leave. Several federal courts of appeals—including the Third, Seventh, Ninth, and Eleventh Circuits[1]—have held that USERRA may require employers to provide paid short-term military leave where they offer paid leave for comparable absences, such as sick leave, jury duty, or bereavement leave.
Return-to-Work Timelines
Under USERRA, employees are generally entitled to up to five years of cumulative military leave per employer for qualifying military service.
To preserve reemployment rights, employees must timely return to work or apply for reemployment, with deadlines ranging from one day to two years, depending on the length of military service.
| Length of Service | Reemployment Deadline |
| 30 days or less | Employee must report back to work by the beginning of the first regularly scheduled workday following completion of service (allowing for safe travel home and at least an 8-hour rest period). |
| 31 to 180 days | Employee must apply for reemployment within 14 days after completing military service. |
| 181 days or more | Employee must apply for reemployment within 90 days after completing military service. |
Once an employee applies for reemployment, the employer generally must reemploy the individual within two weeks, absent unusual circumstances. Employees who sustained injuries during their military service may be eligible for extended reemployment application deadlines.
Protection from Termination Without Cause
If an employee’s military service was for more than 30 days, the employer may not terminate that reemployed service member without cause, with the length of the protected period depending on the length of their service.
| Length of Service | Protected Period After Reemployment |
| 31 to 180 days | Employer may not terminate without cause until 180 days after the date of reemployment. |
| 181 days or more | Employer may not terminate without cause until one year after the date of reemployment. |
Substantial Liability for USERRA Violations
USERRA violations can expose employers to significant liability. There is no statute of limitations for USERRA claims, allowing claims to be brought years after the alleged conduct. This can increase potential back pay exposure and make claims more difficult to defend due to lost records and fading witness recollections.
Although employees may pursue administrative remedies, they are not required to exhaust those administrative remedies before filing a private lawsuit. As a result, USERRA claims can proceed directly to court and often move more quickly than other federal discrimination claims, increasing both litigation risk and cost.
Prevailing USERRA plaintiffs may recover lost wages or benefits. In cases involving willful violations, courts may also award liquidated damages in an amount equal to the greater of (1) $50,000 or (2) the amount of lost wages or benefits (also known as double damages). Punitive damages are not available under USERRA, but USERRA does not preempt state law. Plaintiffs may seek punitive damages where available under applicable state law.
Key Takeaways for Employers
USERRA’s reach is broader than many employers may appreciate. The law imposes meaningful obligations at every stage of the employment relationship. To mitigate risk, employers should:
- Review their military leave policies to ensure compliance with USERRA’s requirements;
- Train HR personnel and managers on key compliance issues, including reemployment obligations, escalator principle analysis, and return-to-work timelines; and
If you have questions about USERRA compliance or military leave obligations, please contact Erik Eisenmann, Chengzhou He, or your Husch Blackwell attorney.
Written with the assistance of Eleanor Wiltanger, a summer associate in Husch Blackwell’s Kansas City office.
[1] White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021);
Travers v. Fed. Express Corp., 8 F.4th 198, 208 (3d Cir. 2021);
Myrick v. City of Hoover, Alabama, 69 F.4th 1309 (11th Cir. 2023);
Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023) (noting that if the employer only provides three days of paid bereavement leave per year or only offers the difference in pay between the employee’s salary and the compensation for jury duty, that is all the employer would be required to provide to the servicemember).