California and Federal law provide powerful protections from discrimination or other adverse effects on your employment due to your deployment. To obtain these protections, it is critical that you take steps to notify your employer of your deployment and return when you are required. Below is a general overview of the requirements for taking advantage of these protections:
Critical Tasks:
1. Give written notice of your deployment and a copy of your orders to your employer as early as possible. Send the notice by certified mail. Keep a copy of the letter and the certified mail receipt. (A sample notice letter is included)
2. Return to your job on time. The number of days you have to return to your job depends on the length of your military duty. If you are away from your job on military duty for more than 180 days you must return to your job within 90 days.
3. Get help immediately if you are discriminated against because of military or veteran status, if you are denied reemployment, or if any of your other rights under USERRA are violated.
A. Discrimination in Hiring and Employment
Whether or not you are mobilized, it is illegal for any employer or a prospective employer to discriminate against you because of your membership in the National Guard. You may not be discriminated against in hiring, promotion, reemployment, termination or benefits or in any other way connected with your job. Get help immediately (see “Getting Help” below) if you are the target of discrimination.
B. Reemployment – Getting Your Job Back After Deployment:
You have a right to return to your job after your release from military duty if you satisfy six conditions:
❑ You have a job before going on military duty. Your job is covered by the reemployment rights provisions in USERRA unless the job (a) is only for a brief, non-recurrent period and (b) there is no reasonable expectation that your job will continue indefinitely or for a significant period of time. Generally, permanent full time, part time, hiring hall, or seasonally recurring jobs are covered by USERRA, even if you are on probation or on strike when you go on military leave. A short- term temporary job may not be covered. Both government and private sector jobs are covered by USERRA. Get help if you have questions regarding whether your job is covered by USERRA.
❑ You give your employer notice that you are leaving. Give your employer notice that you are leaving to perform military duty as early as possible. The best way to protect your rights is to give notice in writing. Send the notice to your employer via certified mail, return receipt requested. Keep a copy of the notice and the receipt so that you can prove that you gave notice. See a JAG immediately if it was impossible for you to give notice to your employer before a deployment.
A sample letter containing the required information can be found at the end of this Guide.
- ❑ You are away from your job for less than five years of military service. This five-year limit is cumulative for each employer. Some types of duty including drills, Annual Training and Active Duty for Special Work do not count toward the five- year limit.
- ❑ Your military service is honorable.
- ❑ You return to your job on time after being released from military duty. The law requires you to return to your job or to request reinstatement within a set period of time after you are released from military duty. If you are performing military duty for less than 31 days you must return to your job on the next regularly scheduled work day that starts at least eight hours after the end of your military duty. If you are performing military duty for more than 31 days but less than 180 days you must apply for reinstatement within 14 days. If you are performing military duty for more than 180 days you must apply for reinstatement within 90 days. You may have additional time to return to your job if you are recovering from a service-connected disability.
- ❑ You provide documentation of your eligibility for reemployment on request when you return. Generally, this means that your employer can ask you for a copy of your orders when you return. Get help if your employer makes an unreasonable request for documentation or if you are denied reemployment.If you satisfy these conditions, you will generally have a right to:
- ❑ Prompt reinstatement to a job with the seniority, status, and pay rate that you would have had if you had remained employed during the period of your deployment. This is known as the “escalator” rule. Special rules apply to promotions that require the successful completion of an exam or a probationary period. Get help immediately if you are denied reinstatement or if you are not given the seniority, status, and pay that you would have had if you had remained employed during the period of your deployment.
- ❑ Retraining to enable you to perform your job and reasonable accommodation for any service-connected disability. Get help if you are denied retraining or if you have a service-connected disability that may interfere with your job.
- ❑ Protection against retaliation. You cannot be fired because of your military status or for asserting your rights under USERRA. In addition, you are protected from being discharged without cause for one year if your military duty lasted more than 180 days. You are protected from being discharged without cause for 6 months if your military duty lasted between 31 and 180 days. Get help if you are retaliated against or if you are fired without cause after returning from military duty.
- ❑ Service credit in any retirement plan. You are entitled to service credit in your employer’s retirement plan for your period of military service. Your employer may require you to pay the employee contribution to the plan for the period of military service.
❑ A right to use vacation time. If you have unused vacation credits with your civilian employer when you leave for military duty, then you have the right to use all or some of those vacation credits during your period of military duty. However, your employer cannot require you to do so. You generally do not have the right to earn additional vacation credits from your civilian employer during the time you are away to perform military duty.
❑ A right to continue your health insurance during your military duty at your expense. If your deployment is for 30 days or less you can be required to pay the usual employee share of the health insurance cost. If your deployment is for longer than 30 days you can be required to pay 102% of the full cost (the employee share plus the employer share) of the health insurance premium. Note that TRICARE may not cover you or your family for periods of duty lasting less 30 days or less.
❑ Immediate reinstatement of health insurance when you return. The employer may not impose a waiting period or exclude preexisting conditions that are not service-related.
❑ Any other benefits that your employer offers to other employees who take similar leaves of absence.
There are some exceptions to these rights. Get help if you have questions or if you are denied any of your rights.
C. Getting Help
Get help early if you have any questions or problems regarding employment or reemployment. For assistance with employment and reemployment issues call Employer Support of the Guard and Reserve (ESGR) at (800) 336-4590. If ESGR is unable to resolve the problem, contact the U.S. Department of Labor (“DOL”) at (866) 487-2365. DOL can refer your case to the Department of Justice for prosecution, or you may hire a private attorney. You may also speak with a JAG if you have questions regarding employment or reemployment issues.
D. Other Laws Apply to State Active Duty
State law also protects your job if you are called to state active duty by order of the Governor. You should speak with a JAG if you have questions regarding employment or reemployment issues during state active duty.
