Question Lists

Subpart A -- Introduction to the Regulations under the Uniformed Services Employment and Rights Reemployment Act of 1994

• What is the purpose of this part?
• Is USERRA a new law?
• When did USERRA become effective?
• What is the role of the Secretary of Labor under USERRA?
• What definitions apply to USERRA?
• What types of service in the uniformed services are covered by USERRA?
• How does USERRA relate to other laws, public and private contracts, and employer practices?

Subpart B -- Anti-Discrimination and Anti-Retaliation Protection From Employer Discrimination and Retaliation

• What status or activity is protected from employer discrimination by USERRA?
• What activity is protected from employer retaliation by USERRA?
• Does USERRA protect an individual who does not actually perform service in the uniformed services?
• Do the Act's prohibitions against discrimination and retaliation apply to all employment positions?
• Who has the burden of proving discrimination or retaliation in violation of USERRA?
• What must the individual show to carry the burden of proving that the employer discriminated or retaliated against him or her?

Subpart C -- Eligibility For Reemployment General Eligibility Requirements for Reemployment

• What criteria must the employee meet to be eligible under USERRA for reemployment after service in the uniformed services?
• Does the employee have to prove that the employer discriminated against him or her in order to be eligible for reemployment?

• Which employers are covered by USERRA?
• Is a successor in interest an employer covered by USERRA?
• Can an employer be liable as a successor in interest if it was unaware that an employee may claim reemployment rights when the employer acquired the business?
• Can one employee be employed in one job by more than one employer?
• Can a hiring hall be an employer?
• Are States (and their political subdivisions), the District of Columbia, the Commonwealth of Puerto Rico, and United States territories, considered employers?
• Does USERRA protect against discrimination in initial hiring decisions?
• Does an employee have rights under USERRA even though he or she holds a temporary, part-time, probationary, or seasonal employment position?
• What rights does an employee have under USERRA if he or she is on layoff, on strike, or on a leave of absence?
• Does an individual have rights under USERRA even if he or she is an executive, managerial, or professional employee?
• Does USERRA cover an independent contractor?

• Are all military fitness examinations considered "service in the uniformed services"?
• Is all funeral honors duty considered "service in the uniformed services"?
• What types of service in the National Disaster Medical System are considered "service in the uniformed services"?
• Is all service as a member of the National Guard considered "service in the uniformed services"?
• Is service in the commissioned corps of the Public Health Service considered "service in the uniformed services"?
• Are there any circumstances in which special categories of persons are considered to perform "service in the uniformed services"?
• Does USERRA cover an individual attending a military service academy?
• Does USERRA cover a member of the Reserve Officers Training Corps?
• Does USERRA cover a member of the Commissioned Corps of the National Oceanic and Atmospheric Administration, the Civil Air Patrol, or the Coast Guard Auxiliary?
• Does service in the uniformed services have to be an employee's sole reason for leaving an employment position in order to have USERRA reemployment rights?
• Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights?

• Must the employee give advance notice to the employer of his or her service in the uniformed services?
• When is the employee excused from giving advance notice of service in the uniformed services?
• Is the employee required to get permission from his or her employer before leaving to perform service in the uniformed services?
• Is the employee required to tell his or her civilian employer that he or she intends to seek reemployment after completing uniformed service before the employee leaves to perform service in the uniformed services?

• Is there a limit on the total amount of service in the uniformed services that an employee may perform and still retain reemployment rights with the employer?
• Does the five-year service limit include all absences from an employment position that are related to service in the uniformed services?
• Does the five-year service limit include periods of service that the employee performed when he or she worked for a previous employer?
• Does the five-year service limit include periods of service that the employee performed before USERRA was enacted?
• Are there any types of service in the uniformed services that an employee can perform that do not count against USERRA's five-year service limit?
• Is the employee required to accommodate his or her employer's needs as to the timing, frequency or duration of service?

• Is the employee required to report to or submit a timely application for reemployment to his or her pre-service employer upon completing the period of service in the uniformed services?
• Is the time period for reporting back to an employer extended if the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service?
• Are there any consequences if the employee fails to report for or submit a timely application for reemployment?
• Is an application for reemployment required to be in any particular form?
• To whom must the employee submit the application for reemployment?
• If the employee seeks or obtains employment with an employer other than the pre-service employer before the end of the period within which a reemployment application must be filed, will that jeopardize reemployment rights with the pre-service employer?
• Is the employee required to submit documentation to the employer in connection with the application for reemployment?
• Is the employer required to reemploy the employee if documentation establishing the employee's eligibility does not exist or is not readily available?
• What documents satisfy the requirement that the employee establish eligibility for reemployment after a period of service of more than thirty days?

• What type of discharge or separation from service is required for an employee to be entitled to reemployment under USERRA?
• What types of discharge or separation from uniformed service will make the employee ineligible for reemployment under USERRA?
• Who determines the characterization of service?
• If the employee receives a disqualifying discharge or release from uniformed service and it is later upgraded, will reemployment rights be restored?
• If the employee receives a retroactive upgrade in the characterization of service, will that entitle him or her to claim back wages and benefits lost as of the date of separation from service?

• Are there any circumstances in which the pre-service employer is excused from its obligation to reemploy the employee following a period of uniformed service? What statutory defenses are available to the employer in an action or proceeding for reemployment benefits?

Subpart D -- Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services

• What is the employee's status with his or her civilian employer while performing service in the uniformed services?
• Which non-seniority rights and benefits is the employee entitled to during a period of service?
• If the employer provides full or partial pay to the employee while he or she is on military leave, is the employer required to also provide the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence?
• If employment is interrupted by a period of service in the uniformed services, are there any circumstances under which the employee is not entitled to the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence?
• If employment is interrupted by a period of service in the uniformed services, is the employee permitted upon request to use accrued vacation, annual or similar leave with pay during the service? Can the employer require the employee to use accrued leave during a period of service?

• What types of health plans are covered by USERRA?
• What health plan coverage must the employer provide for the employee under USERRA?
• How does the employee elect continuing health plan coverage?
• How much must the employee pay in order to continue health plan coverage?
• What actions may a plan administrator take if the employee does not elect or pay for continuing coverage in a timely manner?
• If the employee's coverage was terminated at the beginning of or during service, does his or her coverage have to be reinstated upon reemployment?
• Can the employee elect to delay reinstatement of health plan coverage until a date after the date he or she is reemployed?
• In a multiemployer health plan, how is liability allocated for employer contributions and benefits arising under USERRA's health plan provisions?
• How does the continuation of health plan benefits apply to a multiemployer plan that provides health plan coverage through a health benefits account system?

Subpart E -- Reemployment Rights and Benefits Prompt Reemployment

• When is an employee entitled to be reemployed by his or her civilian employer?
• How is "prompt reemployment" defined?

• What position is the employee entitled to upon reemployment?
• How is the specific reemployment position determined?
• Does the reemployment position include elements such as seniority, status, and rate of pay?
• Can the application of the escalator principle result in adverse consequences when the employee is reemployed?
• What other factors can determine the reemployment position?
• What is the employee's reemployment position if the period of service was less than 91 days?
• What is the reemployment position if the employee's period of service in the uniformed services was more than 90 days?
• What efforts must the employer make to help the employee become qualified for the reemployment position?
• What priority must the employer follow if two or more returning employees are entitled to reemployment in the same position?

• What seniority rights does an employee have when reemployed following a period of uniformed service?
• Does USERRA require the employer to use a seniority system?
• How does a person know whether a particular right or benefit is a seniority-based right or benefit?
• How can the employee demonstrate a reasonable certainty that he or she would have received the seniority right or benefit if he or she had remained continuously employed during the period of service?

• Is the employee entitled to any specific reemployment benefits if he or she has a disability that was incurred in, or aggravated during, the period of service?
• If the employee has a disability that was incurred in, or aggravated during, the period of service, what efforts must the employer make to help him or her become qualified for the reemployment position?

• How is the employee's rate of pay determined when he or she returns from a period of service?

• Does USERRA provide the employee with protection against discharge?
• What constitutes cause for discharge under USERRA?

• How does USERRA protect an employee's pension benefits?
• What pension benefit plans are covered under USERRA?
• Who is responsible for funding any plan obligation to provide the employee with pension benefits?
• When is the employer required to make the plan contribution that is attributable to the employee's period of uniformed service?
• Does the employee pay interest when he or she makes up missed contributions or elective deferrals?
• Is the employee allowed to repay a previous distribution from a pension benefits plan upon being reemployed?
• If the employee is reemployed with his or her pre-service employer, is the employee's pension benefit the same as if he or she had remained continuously employed?
• What are the obligations of a multiemployer pension benefit plan under USERRA?
• How is compensation during the period of service calculated in order to determine the employee's pension benefits, if benefits are based on compensation?

Subpart F -- Compliance Assistance, Enforcement and Remedies

• What assistance does the Department of Labor provide to employees and employers concerning employment, reemployment, or other rights and benefits under USERRA?

• How does an individual file a USERRA complaint?
• How will VETS investigate a USERRA complaint?
• Does VETS have the authority to order compliance with USERRA?
• What actions may an individual take if the complaint is not resolved by VETS?
• What can the Attorney General do about the complaint?
• Is an individual required to file his or her complaint with VETS?
• If an individual files a complaint with VETS and VETS' efforts do not resolve the complaint, can the individual pursue the claim on his or her own?
• What court has jurisdiction in an action against a State or private employer?
• Is a National Guard civilian technician considered a State or Federal employee for purposes of USERRA?
• What is the proper venue in an action against a State or private employer?
• Who has legal standing to bring an action under USERRA?
• Who is a necessary party in an action under USERRA?
• How are fees and court costs charged or taxed in an action under USERRA?
• Is there a statute of limitations in an action under USERRA?
• What remedies may be awarded for a violation of USERRA?
• Are there special damages provisions that apply to actions initiated in the name of the United States?
• May a court use its equity powers in an action or proceeding under the Act?