Understanding USERRA Protections
USERRA protects military service members from job loss, retaliation, and benefit disruption during and after military leave. A USERRA lawyer helps employees enforce their right to reinstatement, continuation of benefits, and protection from termination.
What Does the Uniformed Services Employment and Reemployment Rights Act (USERRA) Do?
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides protection to members of the armed forces, National Guard, or commissioned corps of the Public Health Services who take a military leave of absence from work. USERRA prohibits discrimination by employers, requires companies to reemploy or return someone to a similar position upon returning from the armed services with seniority as though the person had never left the company, and mandates that benefits and health plans be maintained during the period of service. USERRA applies to private companies (including any companies they may own in foreign countries), state agencies, and the Federal Government (although the rules for enforcement may be different).
USERRA Discrimination and Retaliation Protections
USERRA prohibits discrimination against anyone for serving in the armed forces or for taking military leave from a civilian job. This includes any kind of discriminatory action in the areas of hiring, promotion, reemployment, or any other benefit of employment. USERRA also prohibits retaliation against anyone who seeks to enforce their rights under USERRA or assists another in enforcing those rights
Reemployment Rights for Service Members
USERRA also requires companies to rehire or reemploy military personnel on return from military leave.
USERRA return-to-work deadlines:
- Military leave < 31 days: report to work next business day (after 8 hours of rest)
- Leave between 31–180 days: employee must provide notice within 14 days
- Leave 181+ days: notice must be provided within 90 days
- With injury or illness: up to 2 years or more allowed to recover before reapplying
A service member who misses these deadlines does not automatically forfeit USERRA rights. Employers must still follow their general disciplinary procedures
Rules for Terminating Employees After Military Leave
USERRA protects employees from termination without cause for specific timeframes after returning from leave:
- Leave > 30 days: employee cannot be fired without cause for 180 days
- Leave > 180 days: protection from termination without cause extends to 1 year
Are There Exceptions to USERRA Protections?
Yes. Two primary exceptions apply:
- If the total time away from work exceeds 5 years (excluding protected duty types), USERRA protections may not apply.
- If the employer can show undue hardship, impossibility, or that the job was temporary, reemployment may not be required.
Seniority and Benefits Under USERRA
USERRA uses the “escalator principle.” Returning service members must be reinstated to the same job and seniority as if they had never left. If they’re no longer qualified due to service-related injury or time away, the employer must:
- Provide training or support to regain qualifications
- Offer a comparable position if retraining is not possible
- Accommodate service-connected disabilities
Service members must also receive continued access to medical and pension benefits, though they may be required to pay their share of premiums during leave.
Enforcing Your Rights Under USERRA
To enforce USERRA rights, service members may:
- File a claim with the Secretary of Defense (via ESGR or VETS)
- Request DOJ intervention or file their own USERRA lawsuit
If successful, a USERRA attorney may help you recover:
- Lost wages and benefits
- Liquidated damages (if employer’s violation was willful)
- Attorney fees and costs
There is no specific statute of limitations under USERRA, but prompt action is encouraged.
Need a USERRA Attorney in Denver or Colorado Springs? If you have questions regarding military leave protections or retaliation, please contact Baird Quinn’s USERRA lawyers. Our Denver labor and employment attorneys are proud to represent service members throughout Colorado.
Frequently Asked Questions About USERRA Rights in Colorado
What is USERRA and who does it protect?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects members of the armed forces, National Guard, and commissioned corps of the Public Health Services. It prohibits employment discrimination and retaliation based on military service and guarantees reemployment rights after a military leave of absence.
Can an employer fire someone on military leave?
USERRA provides strict protections against terminating employees without cause after they return from military service. If a service member’s leave was over 30 days, they cannot be fired without cause for 180 days. If the leave was over 180 days, this protection from termination without cause extends for a full year.
Do I lose my seniority or benefits while on military leave?
No. Under the “escalator principle” of USERRA, returning service members must be reinstated to the exact same job, seniority level, and benefits they would have attained if they had never left. This includes continued access to medical plans and pension benefits.
How long do I have to return to work after military leave?
Your return-to-work deadline depends on the length of your service. For leave under 31 days, you must report the next business day (after an 8-hour rest period). For leave between 31 and 180 days, you must notify your employer within 14 days. For leave exceeding 181 days, you have 90 days to provide notice.