Whether you served on active duty or you were mobilized from the Reserves or Guard for deployment, your employment and reemployment rights are guaranteed if you meet certain criteria. Federal law known as USERRA, the Uniformed Services Employment and Reemployment Rights Act, protects you. USERRA ensures you are not discriminated or retaliated against on the basis of your military service, and that you get your public or private sector job back with the seniority, status, and at the same rate of pay that you would have had if you had been continuously employed at your job. You must have notified your employer in advance, and not be absent for over five years, along with certain other requirements.

What are my rights concerning vacation leave?

If your employment was interrupted by a period of military service, you have the right to use your vacation, annual, or similar leave with pay already on the books. However, no employer may require you to use vacation, annual, or similar paid leave during such period of service. Any paid leave that you have accrued when you deploy will remain on the books until you return. If you are in a paid leave status, you do accrue vacation and sick leave time while you are in the paid leave status. You do not accrue vacation and sick leave while in an unpaid leave status. An employer is not required under USERRA to provide short-term compensation (pay, vacation accrual, etc.) when an employee is not working at the worksite. Individual vacation policy should be reviewed on a case-by-case basis with U.S. Department of Labor/Veterans' Employment and Training Service (DOL/VETS).

  • For more information, go to www.osc.gov, left-hand menu to "Uniformed Services Employment and Reemployment Act" or www.dol.gov/vets.
  • For specific questions call DOL/VETS at (617) 626-6699.

How is this law enforced?

If your employer is giving you a hard time, and you think you have been denied a federal USERRA right (especially in a case where you have experienced harm such as a layoff, termination due to military service, or denial of reemployment after returning from military duty) you should first contact the U.S. Department of Labor/Veterans' Employment and Training Service (DOL/VETS). Once you file a formal complaint, DOL/VETS will investigate. If DOL/VETS finds your complaint has merit, they will contact your employer about complying with the law. If the DOL/VETS' attempts to obtain compliance are unsuccessful, then DOL/VETS will advise you of your rights to proceed further. Another option is to contact the Employer Support of the Guard and Reserve (ESGR). They are trained USERRA ombudsmen who will advise you of your rights and offer informal mediation services with your employer.

  • For more information on USERRA, go to ww w.do l.g ov/vets or call the Boston regional DOL/VETS office at (617) 626-6699.
  • For more information on the ESGR, visit www.esgr.org or call (800) 336-4590.
  • The Reserve Officers' Association website contains archives of law reviews, many of which concern USERRA. Visit www.roa.org.

Do I have any other employment rights?

Yes. If you belong to the Massachusetts National Guard, you are protected from any private or public employer denying your initial employment, preventing your being employed by another, obstructing or harassing you or your employer because of your connection with the Guard, or because of your absence due to Guard duty.

If you are a public employee, and you are called up for Guard or Reserve duty, you have certain protections under Massachusetts' law. If you give written notice before deploying, you are considered on a leave of absence, and you have two years to become reinstated. Your public pension is protected and your military service is credited to it.

  • For more information, see Servicemembers Civil Relief Act by visiting www.uscg.mil/legal/la and go to "Servicemembers Civil Relief Act."

What can I do if I feel I'm being discriminated against because of my military affiliation?

You can file a claim for discrimination under USERRA with DOL/VETS, as above, or you can file a complaint at the Massachusetts Commission Against Discrimination (MCAD), a slower process.

  • To file a claim under USERRA with DOL/VETS, call (617) 626-6699.
  • To file a complaint with the MCAD, call (617) 994-6000.

What if I'm on medical hold or incapacitation pay?

DOL/VETS will provide you with information about your rights under USERRA. The length of absence will dictate how long (under USERRA) you have to claim your pre-service position. It is best to act sooner rather than later to ensure your rights-call DOL/VETS today.

  • For more information, call DOL/VETs at (617) 626-6699.

(Welcome Home, 3rd edition, April 2010)

Go to Veterans' Preference and Retirement Benefits