Navigating USERRA: Common Compliance Pitfalls for Employers

While many employers are familiar with the basic concept of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects the jobs of employees who serve in the military, the nuances of the law often lead to unintentional non-compliance. Beyond job protection, employers frequently struggle with the complexities of pay during leave, benefit accruals and continuation, and the interaction between federal and state mandates. 

Misinterpreting these requirements can lead to costly compliance errors; therefore, understanding these frequent points of confusion is critical for human resource teams. 

Common Employer Misconceptions 

• The “Permission” Trap. A frequent error occurs when managers believe they must “approve” military leave. Under USERRA, employees are required to provide advance notice of their service, but they do not need to obtain the employer’s permission. 
  • Reality: Unless military necessity prevents it, notice is the only requirement. Policies stating military leave must be “requested” and/or “approved” should be revised to reflect that notice is simply being provided. 
• The “Written Orders” Demand. A common source of friction is the insistence that an employee provides physical military orders before leave is granted. 
  • Reality: USERRA allows for verbal notice. While employers can request documentation after periods of service (specifically those exceeding 30 days) to verify eligibility for reinstatement, they generally cannot delay or deny the start of leave because written orders have not yet been produced. 
• The “Undue Hardship” Assumption. Employers often believe they can deny a request for military leave if the employee’s absence would cause significant operational strain or financial difficulty. 
  • Reality: Unlike the Americans with Disabilities Act, USERRA does not allow an employer to deny a leave request based on “undue hardship.” The law prioritizes military service over civilian business needs. (Note: A narrow “undue hardship” defense exists, but it applies only to reinstating an employee under specific circumstances, not to granting the initial time off.) 
• The “COBRA” Pitfall. USERRA provides up to 24 months of health insurance continuation. Crucially, if the military service is 30 days or less, the employee’s health coverage must continue as if they were still actively employed, and they can only be charged the normal employee share of the premium. 
  • Reality: COBRA should not be offered unless the leave period exceeds 30 days. Additionally, while COBRA typically offers 18 months of coverage, USERRA provides up to 24 months. 
• The “Immediate Return” Expectation. Employers often assume service members must be back at their desks the day after their deployment ends. 
  • Reality: The deadline to report back depends on the length of service. For service of 31-180 days, the employee has 14 days to submit a request for reemployment. For service over 180 days, they have 90 days to apply for reinstatement. 
• The “Old Job” Myth (The Escalator Principle). Employers often assume compliance means giving a returning service member their exact previous job back. USERRA employs the “Escalator Principle,” which requires that the employee be reemployed in the position they would have attained with reasonable certainty had they remained continuously employed. 
  • Reality: If an employee would have received a promotion or a raise based on seniority during their absence, they are entitled to that higher level of pay and status upon return. 
• “At-Will” Employment Exceptions. There is a common belief that once a service member is reinstated, they return to standard “at-will” status and can be terminated for any legal reason at any time. 
  • Reality: USERRA creates a significant exception to at-will employment. Depending on the length of service, a reemployed service member may be entitled to a protection period of 180 days to one year, during which they may only be discharged “for cause.” 
• Pay and Benefits: The “Unpaid” Leave Myth. A common assumption is that military leave is always unpaid and that benefits stop accruing. The reality is more nuanced. 
  • Reality: While USERRA generally does not mandate paid leave for private employers, the “comparable leave” doctrine applies. If an employer provides paid leave for other short-term absences of similar duration (such as jury duty or bereavement), they may be required to provide paid military leave to avoid discrimination claims. Additionally, under the FLSA, exempt employees must be paid their full weekly salary if they work any portion of the week before departing for military duty. 
    
    For seniority-based benefits, employees will generally continue to accrue service credit for vesting and pension formulas as if they had never left. For non-seniority-based benefits, such as paid time off or sick time, generally, employees do not accrue vacation or sick leave while deployed, unless the employer allows accrual for other employees on comparable unpaid leaves. 

Next Steps for Employers 

To ensure comprehensive compliance, employers should take the following steps: 

• Review Leave Policies: Ensure policies do not require “approval” for military leave and accurately reflect the ability to give verbal notice. 
• Audit “Comparable” Leaves: Review paid leave policies (e.g., jury duty or bereavement leave) to determine if military leave must also be paid under the comparable leave doctrine. 
• Check State Requirements: Verify if your state requires paid military leave or additional benefits beyond the federal minimum. 
• Assess Reinstatement Protocols: When an employee returns, apply the “Escalator Principle” to ensure they are placed in the correct role with the appropriate pay and seniority. 
• Consult with Legal Counsel: Seek legal advice before making adverse employment decisions regarding a service member.