August 10, 2020

An employer owes a service member employee specific employment protection, as dictated by the Uniformed Services Employment And Re-Employment Rights Act (“USERRA”).  [32 U.S.C. § 4301.]

The USERRA is a federal statute, enacted to protect servicemembers’ and veterans’ employment rights once returning to work as civilians.  The purpose of this statute is to make sure members of the Armed Forces, Reserve, National Guard, and any other uniformed services:

1) are not disadvantaged in their civilian careers because of their service;
2) are promptly reemployed in their civilian jobs upon their return from duty; and
3) are not discriminated against in employment based on past, present, or future military service.
[Memorandum of President of the United States, July 19, 2012, 77 F.R. 43699.]

This includes the requirement that servicemembers be allowed to resume their civilian positions once back home from serving.  The act also protects service members from discrimination related to their military affiliation. [32 U.S.C. § 4301.]

If an employer and a reservist have a dispute regarding the interpretation or implementation of the USERRA, they may contact an ombudsman who will serve as a mediator.  These ombudsmen are available, for free, through the National Committee for Employer Support of the Guard and Reserve (NCESGR), which is part of the Office of the Assistant Secretary of Defense for Reserve Affairs.  To take advantage of this ombudsman service, reservists and civilian employers can contact NCESGR at 1/800-336-4590.

Health Benefits
If a military reservist is on active duty for more than 30 days, the service member and their family should be covered by military health care.  Under USERRA, the service member’s health coverage rights are protected.  If a service member is under an employment-based group health plan, the coverage is protected under COBRA and USERRA.

COBRA offers 18 months of coverage to servicemembers and their families, when an employer has 20 or more employees.  For smaller employers, state laws require the plan to continue the service members’ insurance.  USERRA provides for 24 months of continued health coverage for service members and their families, regardless of the size of the employer.  [U.S. Department of Labor Employee Benefits Security Administration.]

Retirement Benefits
When a service member is on duty, USERRA requires that period of time to be counted as covered service, and the employer must continue to provide retirement benefits.  Returning service members must be treated as if they had been engaged in continuous employment for the duration of their service.  However, an employer is not required to make contributions to the servicemembers 401(k) while they are on active duty.  Upon return of service members to civilian employment, the employer must make the employer contributions that would have been made, had the service members remained employed during the period of active duty.  The employer must make these contributions in either three times the period of the military duty or five years, whichever ends earliest.

Additional Rules for Employers
Reservists can only be denied leave for training or active duty if the combined length of their prior military leaves is more than five years.

Reservists cannot be denied promotion because of the obligations imposed by membership in a reserve component.  This means that reservists, if as well qualified as other employees, cannot be denied promotion or advancement because military training affects their work schedules.

Regarding use of vacation, military reservists may use accrued vacation or similar leave with pay.  Use of accrued vacation time is at the reservist’s option, however.  Employers cannot require the use of vacation time while on military leave.

Regarding accrual of vacation, where eligibility for vacation depends on fulfilling a work requirement, reservist employees must perform the work to be entitled to the vacation.  Where the value of vacation depends upon years of service, however, vacation is determined by continuous employment, and absence for reserve duty is to be counted toward the value of the vacation.

If a reservist is injured during military duty, the disability extends the length of time an employee is allowed to be off work.  If the disability turns out to handicap the employee permanently, the employer still has responsibilities toward the reservist.  Detailed coverage of this type of situation is beyond the scope of this article, however.

Aid for the Employer
Employers needing financial assistance because of losing a valuable employee to active duty should contact the U.S. Small Business Administration.  The Small Business Administration makes low-interest loans available to small businesses employing military reservists called to active duty during a period of military conflict, provided the reservist was an essential employee critical to the success of the business’ daily operation.  The number to call in California is 1/800-488-5323.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (  Please visit our website at

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.