Heightened Military Engagement: Unpacking Employers’ USERRA Responsibilities

Takeaways

• The potential for expanded use of National Guard and Reserve forces makes USERRA compliance for employers critical.
• USERRA’s broad, mandatory protections for employees include military leave and some benefits continuation. 
• With strict bans on discrimination or retaliation tied to past, current or future military service, employers’ proactive policy review and manager training are essential.

Article

The recent United States military engagement in the Middle East, as well as significant domestic deployments in multiple large cities in 2025 and 2026, underscores the increasing reliance on National Guard and Reserve forces. Recruitment trends indicate an expanded operational role with nearly 50,000 National Guard enlistees added in 2025. At this time, understanding employers’ compliance obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is more important than ever.

USERRA guarantees the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.

Strict Prohibition on Discrimination, Retaliation

USERRA prohibits discrimination or retaliation based on:

• Past military service
• Current military obligations
• Potential or future service
• Filing a USERRA complaint or exercising a USERRA right

With increased activations of National Guard and Reserve forces more likely under the current conditions, employers should be more mindful of scheduling, promotion decisions, attendance actions, and workplace remarks concerning military leave.

Applies Broadly, Without Advance Written Notice Requirements

USERRA applies to all employers, regardless of size, and protects full-time, part-time, temporary, and probationary employees who perform duty in the United States Uniformed Services, including:

• The Army, Navy, Marine Corps, Space Force, Air Force, and Coast Guard 
• The Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve
• The Commissioned Corps of the Public Health Service
• Other categories of persons designated by the president during a time of war or national emergency

Members of the Army National Guard and Air National Guard are covered when they are on full-time National Guard duty, are engaged in active or inactive duty for training, or have been activated by the president.

National Guard service on behalf of a state, commonwealth, or territory is not protected by USERRA, although it is normally protected by state laws, which provide similar protections as USERRA.

USERRA protections further extend to Federal Emergency Management Agency reservists who deploy to major disaster sites.

Importantly, USERRA does not require employees to provide advance written notice to their employers of the need for leave. In the event of emergency mobilization, employees may have little or no time to notify their employers. As long as the employee or an appropriate military authority provides some form of notice, the employer is obligated to comply.

Protected Military Leave

When an employee is called to active duty, their employer must allow the employee to take military leave for the entire period of required service. This applies equally to both involuntary and voluntary service.

Key points include:

• No minimum hours worked or tenure requirements
• Leave can last up to five cumulative years with the same employer (there are many exceptions for certain types of duty, including involuntary activations)
• Employers cannot require employees to use paid time off (although employees may elect to do so)

Pay, Benefit Continuation Rules

1.  Pay during activation

Generally, USERRA does not require employers to pay employees while they are away performing military duty. If the employer offers paid leave to employees absent for non-military reasons, however, it is possible that employees on military leave would be entitled to pay as well.  

Further, under the federal Fair Labor Standards Act employers are still required to pay exempt employees on military leave their salary for any week in which the employee performs work. However, the employer may offset any amount received by the employee as military pay while on temporary military service.

Some employers voluntarily choose to pay employees on military leave a “pay differential” for some portion of the leave time taken. Pay differential is the difference between military pay earned and what the employee would have received if they continued working for the employer. Should an employer elect to do this, these payments remain subject to federal income tax withholding and must be reported on Form W-2.

When an employee’s active duty exceeds 30 days, however, the differential payments are exempt from Federal Insurance Contributions Act (FICA) and Federal Unemployment Tax Act (FUTA) taxes.

2.  Health benefits

Reemployment Rights: Precision

With limited exceptions, if the employee meets statutory requirements, including returning to work within the required timeframe, USERRA mandates prompt reemployment in the “escalator position.”

Although the following reemployment deadlines may be extended for employees who are injured during service, generally applicable deadlines are:

Depending on the period of service, reemployment is as follows:

Generally, this means that eligible employees must be reemployed to the position they would have attained if their employment had not been interrupted by military service, called the “escalator position.” The returning employee is also entitled to the seniority, status, and rate of pay that they would ordinarily have attained if continuously employed. This may involve a promotion, wage increase, transfer, or, in some situations, a layoff, depending on the employer’s legitimate business circumstances. In some cases, the position, status, and rate of pay are easily determined; in other cases, the law and regulations recognize that employers will be required to evaluate a number of factors. For example, an employee may need additional time for skills training they “missed” during service for a promotion, or an employee’s status may involve missed opportunities for advancement, responsibility, general working conditions, or even job location.

Employers must also provide:

• Necessary training or retraining; 
• Reasonable accommodations for service-connected disabilities; and 
• Placement in a comparable position if the escalator position is not feasible.

Reemployment Rights: Protection Against Discharge

To protect the veteran from a bad faith reinstatement, it is unlawful for the employer to terminate the reinstated service member, except for cause, during a special protection period.

The employer bears the burden of proving the employee was discharged “for cause,” that is, the discharge was reasonable and the employee had notice such conduct would constitute cause for discharge (for misconduct or another legitimate non-discriminatory reason, such as a reduction in force).

Practical Steps Employers Should Take Now

To prepare, employers should consider the following steps:

1. Review and update military leave policies. Ensure alignment with USERRA and any applicable state military leave laws.
    
2. Train HR personnel, managers, supervisors. These individuals are often the first to receive notice of an employee’s deployment. Proper training helps prevent costly compliance errors.
    
3. Maintain clear communication channels. Designate a single point of contact for employees who may be mobilized.

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Regardless of how geopolitical developments unfold, employers should be prepared for military leave requests. USERRA is a highly protective statute that generously protects those who choose to serve. Compliance is essential not only to meet legal obligations, but to support employees who serve the nation.

Please contact a Jackson Lewis attorney with any questions about compliance with USERRA or other workplace laws, including for policy drafting, training, and other workforce planning.