Service members who step away from their civilian jobs to serve our country should not have to worry about losing their careers because of it. Federal and Florida law both guarantee the right to return to work without being penalized for military service.

Despite these protections, service members and veterans are sometimes denied reemployment, passed over for promotion, stripped of seniority, or terminated shortly after returning from duty. When that happens, both the Uniformed Services Employment and Reemployment Rights Act (USERRA) and Florida law give you the right to hold your employer accountable.

What Is USERRA?

USERRA is a federal law that protects the employment and reemployment rights of individuals who leave civilian jobs to perform military service.

USERRA prohibits an employer from denying initial employment, reemployment, promotion, or any benefit of employment because of a person’s military service, application for service, or obligation to serve. It also requires reasonable efforts to accommodate service members with a service-connected disability.

Who is Covered Under USERRA?

USERRA applies to virtually all employers, regardless of size, and covers active duty, National Guard duty, Reserve duty, training, and other uniformed service. USERRA also applies to State Active Duty if the service is for 14 days or more, or if it supports a major disaster or national emergency declared by the President.

Reemployment and Reinstatement Rights

Under USERRA, a returning service member is entitled to be reemployed in the position they would have attained had their employment not been interrupted by service, along with the seniority, status, and pay that comes with it. Employers must also make reasonable efforts, such as training or retraining, to help a returning employee qualify for reemployment.

To qualify, an employee generally must give advance notice of military service, have five years or less of cumulative service with that employer (with certain exceptions), and report back or apply for reemployment within the applicable timeframe after service ends.

USERRA also provides a protected period after reemployment during which an employer cannot discharge the returning employee except for cause. Employees are protected from being fired without “cause” for 180 days (6 months) following service of 31 to 180 days, and for one year following service of more than 180 days.

Health plan coverage may generally be continued for up to 24 months during military service, and pension and other benefit accrual must be restored upon return as if employment had been continuous.

Florida Law Protecting Servicemembers

USERRA generally does not apply to state-level duty for local disturbances or localized emergencies lasting under 14 days or without a federal declaration or emergency or disaster, such as a governor’s call-up of the Florida National Guard for a hurricane, civil disturbance, or other state emergency. Florida law helps fills that gap.

Under Section 250.48 of the Florida Statutes, National Guard members employed by the state or a county, municipality, or school district are entitled to protected state active duty leave, generally up to 30 days, without loss of pay, time, or efficiency rating, and may not be discharged, reprimanded, or otherwise penalized because of that absence.

Section 250.482 provides additional employment protections to Florida National Guard members returning from state active duty and applies to both public and private employers. A returning member who timely notifies the employer of the intent to resume work is generally entitled to reinstatement with the seniority, rights, and benefits the member would have accrued had employment continued without interruption. The statute also prohibits a public or private employer from discharging the member without cause for one year after the member returns to work.

Prohibited Employer Conduct

Under federal and Florida law, an employer generally may not:

  • Refuse to hire an applicant because of military service or obligation
  • Deny reemployment to a returning service member who otherwise qualifies
  • Deny a promotion, seniority, or other benefit because of military service
  • Discharge or discipline a returning service member without cause during the protected period
  • Retaliate against an employee for exercising USERRA rights, filing a complaint, or assisting in an investigation

Remedies Available

Service members whose rights are violated may be entitled to recover back pay and lost benefits with interest, reinstatement or correction of lost seniority, and liquidated (double) damages for willful violations, in an amount equal to the greater of $50,000 or the lost wages and benefits. Successful plaintiffs are also entitled to reasonable attorney’s fees and costs. Notably, there is no statute of limitations for USERRA claims, and USERRA does not require you to exhaust administrative remedies before filing a lawsuit.

Frequently Asked Questions

What is USERRA?

USERRA, the Uniformed Services Employment and Reemployment Rights Act, is a federal law that protects the job rights of employees who leave civilian work to perform military service. It prohibits discrimination based on military service or obligation and requires employers to reemploy returning service members in the position they would have attained had they not been away.

Does USERRA apply to National Guard members called to state active duty?

Not always. USERRA covers federal military service as well as State Active Duty that lasts 14 days or more and is performed in response to a presidentially declared national emergency or major disaster.  

USERRA does not apply to state active duty lasting less than 14 days or state active duty for local events, such as a governor’s call-up of the National Guard for a hurricane or civil disturbance. In these cases, however, Florida law provides similar protections.  In some circumstances, both federal and Florida protections may apply concurrently.

How long do I have to return to work after military service under USERRA?

Reporting deadlines depend on the length of your service. Generally, service of 1 to 30 days requires reporting back on the next scheduled workday, service of 31 to 180 days allows up to 14 days to apply for reemployment, and service of more than 180 days allows up to 90 days to apply. Longer periods may qualify for recovery or hospitalization extensions.

How long do I have to return to work after military service under USERRA?

USERRA’s reporting and application deadlines generally depend on the length of military service:

  • For service of 1 to 30 days, the employee generally must report to work by the beginning of the first regularly scheduled work period following the completion of service, plus an 8-hour rest period.
  • For service of 31 to 180 days, the employee generally must apply for reemployment within 14 days after completing service.
  • For service of more than 180 days, the employee generally must apply for reemployment within 90 days after completing service.

These deadlines may be extended when compliance is impossible or unreasonable through no fault of the service member. A person who is hospitalized or recovering from an illness or injury incurred or aggravated during military service generally has up to two years to report or apply for reemployment, subject to additional extensions when circumstances beyond the person’s control make compliance impossible or unreasonable.

Can my employer fire me shortly after I return from military duty?

Not without cause. USERRA provides a protected period after reemployment during which you cannot be discharged except “for cause.”

Protection depends on the length of service:

  • 31–180 days of service: Protection lasts 180 days after reemployment.
  • More than 180 days: Protection lasts one year.
  • 30 days or fewer: USERRA does not include a specific “for cause” period defined in this same way, but employers are generally barred from terminating you due to your military absence or exercising your USERRA rights.

Florida law provides a one-year “cause” protection for Florida National Guard members returning from state active duty.

What benefits am I entitled to while on military leave?

USERRA generally allows you to continue employer-sponsored health plan coverage for up to 24 months during military service, and requires that your seniority, pension accrual, and other benefits be restored as if your employment had been continuous upon your return.

When a Florida National Guard member’s state active duty does not qualify for protection under USERRA, Florida law provides comparable employment protections to members working for private employers.

Servicemembers who work for a Florida state, county, municipal agency, or public school district may receive even moregenerous benefits that those provided by than USERRA. For example:

  • Federal Active-Duty Pay: Under Florida Statutes Section 115.09, servicemembers in the National Guard or a reserve component of the Armed Forces are entitled to full civilian pay for the first 30 days of a leave of absence for federal active military service lasting at least 90 consecutive days.
  • Paid Leave: Eligible employees receive full public salary (with no loss of time, benefits, or efficiency rating) for the first 30 days of leave.
  • Training Pay: Public employees who are in the National Guard or Reserves get up to 240 hours of paid leave each year specifically for training.
  • Differential Pay: If your active duty lasts longer than 30 days, your Florida public employer may provide a “military pay supplement” to make up the difference if your military base pay is lower than your civilian salary.

Can I be denied a promotion because of my military service?

No. USERRA and Florida law prohibit denying initial employment, reemployment, promotion, or any benefit of employment because of a person’s military service, application for service, or obligation to serve.

What damages can I recover in a USERRA lawsuit?

If your employer violated USERRA, you may be entitled to:  

  • Equitable Relief: Courts can order the employer to reinstate you, correct your seniority, update your personnel records, and restore your pension or other employment benefits.
  • Lost Wages and Benefits: You can recover lost compensation plus interest.
  • Liquidated Damages: For a “knowing” violation, a court can award additional liquidated damages equal to the greater of $50,000 or the amount of your lost wages and benefits.
  • Litigation Expenses: Prevailing plaintiffs are entitled to reasonable attorney’s fees, expert-witness fees, and other litigation expenses.

Is there a deadline to file a USERRA claim?

No. Congress eliminated the statute of limitations for USERRA claims arising after October 10, 2008, so there is generally no deadline to bring a claim.

Florida law is slightly different. Section 250.482 does not state a deadline, so Florida’s default “catch-all” statute of limitations for statutory violations will apply. You typically have four years from the date of an unlawful termination or penalty to file a civil lawsuit in court. If you need to recover lost back-wages as part of your claim, Florida law has a two-year limitation period for wage-recovery claims that may apply. These periods will be tolled during the period of active duty.

What should I do if my employer violates my USERRA rights?

You may file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS), or pursue a private lawsuit without first exhausting administrative remedies.

If you believe your employer violated your rights under USERRA or Florida’s military employment protections, contact Amanda L. Biondolino, PLLC to discuss your legal options.