In 1994, following the first war with Iraq, the federal government enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to protect the civilian jobs of uniformed service members. The purpose of this law is to protect service members who perform both short term service, such as reservists who commit a weekend each month, and long term service, such as full tours of service.
USERRA right to return to work
USERRA protects your right to return to work after service if your service period is less than five years. The five year period is cumulative for an individual employer. If you work at the same company but serve in three separate two year terms of service in the military then after the fifth year your right to return to your civilian job is no longer protected by USERRA.
USERRA seniority rights
In addition to protecting your right to return to work, USERRA also protects your seniority benefits. Seniority benefits under USERRA include restoring you to the place you would have been had you not left for service. So if you receive an automatic 5% increase each year, you should return with the increase for each year absent. If you work in a job where seniority determines job or shift preference, you receive credit for your military service. This principle is called the “escalator principle”. It is an escalator because when you leave for military service, you don’t come back at the same place you left. Your seniority continues to ascend and you get back on as though you never left. (Maybe not the best analogy the courts could have chosen.)
USERRA escalator principle
It is important to note that the escalator principle only applies if your service period is less than ninety days. For example, if you are a reservist but normally work weekends, your employer must give you time off on the weekends you serve and return you to your regular position on Monday or whatever your next regular day of work is. They do not have to give you pay for the weekend or give you superior scheduling preference. An employer could give you pay for the weekend or scheduling preference by choice.
USERRA protections for health insurance access
USERRA also protects access to employer-provided healthcare plan or insurance. If you serve and your employer provides health care to employees, the employer cannot deny access to the healthcare plan. They must allow you up to two years of access on the same basis as all other employees. After two years, they may drop you from the plan. An important consideration here is that the employer does not have to subsidize your health insurance. Often employers split the cost of health insurance with employees. If you go into active service the employer can require you to pay up to 102% of the insurance premiums while away. So if you have spousal access to insurance, it may make sense to switch to your spouse’s plan.
USERRA also protects you from discrimination in the workplace on the basis of past, current and future service. Your employer cannot deny you a job, promotions, raises, etc. on the basis of your service. Your employer cannot harass you about your service or permit a hostile work environment on the basis of your service. You are also protected from retaliation for complaining about discrimination to management or an outside government agency such as the Department of Labor or Texas Workforce Commission.