Understanding USERRA: Protecting National Guard Members’ Employment and Benefits

by | Military Rights | 1 comment

Balancing a civilian career with military service can be challenging, especially for members of the National Guard. That’s where the Uniformed Services Employment and Reemployment Rights Act (USERRA) comes in. USERRA protects the job rights of individuals who voluntarily or involuntarily leave civilian employment to undertake military service.

Understanding your rights under USERRA ensures you’re not disadvantaged in your civilian career because of your service. Whether you’re a National Guard member or an employer, knowing these protections can help maintain a fair and supportive workplace. Dive into the essentials of USERRA and how it impacts the National Guard to safeguard your employment rights and obligations.

Understanding USERRA for National Guard Members

Basics of USERRA

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment and reemployment rights of service members, including National Guard members. Enacted in 1994, it applies to all employers in the United States, regardless of size. USERRA ensures that service members can return to their civilian jobs post-deployment without loss of benefits, seniority, or status. The law covers both voluntary and involuntary service to ensure comprehensive protection.

Rights and Protections

USERRA provides five key rights to National Guard members.

  1. Reemployment Rights: Guardsmen returning from service have the right to be reemployed in their civilian jobs if they meet five eligibility criteria, which include timely notification to employers and cumulative service periods under five years.
  2. Health Insurance Protection: Service members can elect to continue their employer-provided health insurance for up to 24 months while in the military. If they don’t continue coverage, USERRA mandates reinstatement of health insurance coverage upon return without waiting periods or exclusions.
  3. Right to be Free from Discrimination and Retaliation: USERRA prohibits employment discrimination based on military service. Employers can’t deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of a person’s service.
  4. Right to Prompt Reinstatement: Depending on the length of their service, Guardsmen should be reemployed promptly after their military service ends. The timeframe for reemployment ranges from the next calendar day to a maximum of 14 days for longer services.
  5. Right to Preserved Benefits: Accrued benefits such as pension plans must be maintained during the military leave. Additionally, Guardsmen are entitled to any promotions or salary increases that would have been received if they had not been absent.

These rights ensure that National Guard members can serve without fearing negative impacts on their civilian careers.

Eligibility and Coverage

Who Is Covered Under USERRA?

USERRA covers individuals who perform duty in the uniformed services. This includes members of the National Guard, reserves, and active duty military. The protection extends to voluntary and involuntary service. National Guard members deployed within states under federal authority are included. For instance, if you’re called for training, active duty, or a national emergency, you’re covered under USERRA provisions.

Exceptions and Limitations

Certain conditions restrict coverage under USERRA. If your service exceeds five cumulative years with a specific employer, for example, you might lose reemployment rights, exceptions notwithstanding. Misconduct discharges or dishonorable conditions also disqualify you from USERRA protections. Civilian employment obligations cannot conflict with your military responsibilities unless receiving a proper discharge or release.

For more information, review the Department of Labor’s resources on USERRA.

Key Benefits of USERRA for National Guard Members

Employment and Reemployment Rights

USERRA ensures that you, as a National Guard member, return to your civilian job after military service. This act mandates that your employer reemploys you in the same position or a position with similar seniority, status, and pay, provided you meet eligibility criteria. After a deployment, your job must be readily available, and your reentry should not affect your accumulated promotions or seniority. For instance, if you missed a promotion cycle due to service, your employer must consider it once you’re back. These rights are robust whether you’ve participated in training, drills, or active-duty deployment.

Health Insurance and Benefits Protection

USERRA protects your health insurance coverage during service periods. If you are absent from work due to military service for less than 31 days, your employer must continue your health insurance coverage as if you were present. For service extending beyond 31 days, you can elect to continue your health coverage for up to 24 months by paying up to 102% of the full premium. You retain access to company-provided health benefits once you return. For example, if your employer offers a family health plan, this benefit should resume without delay.

Navigating USERRA Claims

Steps to Filing a USERRA Claim

Understanding the process of filing a USERRA claim is crucial for safeguarding your employment rights. Begin by documenting all relevant details of your military service and employment history. This includes dates of service, types of leave, and communication with your employer. Accurate records strengthen your claim.

Next, contact your employer to discuss any perceived violations of USERRA. Many disputes resolve at this stage if both parties engage in open communication. If the issue persists, file a claim with the Employer Support of the Guard and Reserve (ESGR). ESGR provides mediation services and can help resolve conflicts without litigation.

Should mediation fail, you can submit a formal complaint to the Veterans’ Employment and Training Service (VETS). Visit the VETS website to start the complaint process. Provide all necessary documentation to support your claim. VETS will investigate and, if needed, refer the case to the Department of Justice (DOJ) for legal action.

Challenges and Solutions

Navigating USERRA claims can pose several challenges. One common issue is employer misunderstanding of USERRA protections. Many employers may not fully grasp their obligations under the law, leading to disputes over reemployment or benefits.

To address this, educate yourself on USERRA rights and responsibilities. Sharing educational resources with your employer can also be helpful. ESGR provides training and materials to enhance awareness among employers and employees.

Another challenge is proving intent behind employment actions. Employers might claim that adverse actions are unrelated to your military service. To counter this, gather and present evidence showing a direct connection between your service and the adverse action. Detailed records and witness testimonies strengthen your case.

Additionally, the length and complexity of legal proceedings can be daunting. Utilize resources from organizations like VETS and ESGR. These entities offer guidance, mediation, and support throughout the process. Legal counsel specialized in employment or military law can provide further assistance, ensuring your rights under USERRA are upheld.


Understanding your rights under USERRA is crucial for safeguarding your employment and benefits while serving in the National Guard. By being proactive and informed, you can better navigate the complexities of USERRA claims and ensure your rights are upheld. Don’t hesitate to seek support from ESGR or VETS and consider consulting legal counsel specializing in employment or military law. Your commitment to serving your country should never come at the expense of your civilian career or benefits.


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