If you’re a reservist being deployed due to Hurricane Milton, you might be concerned about your civilian job. Thankfully, the Uniformed Services Employment and Reemployment Rights Act (USERRA) and various state laws protect your employment, benefits, and seniority while on active duty.

However, being proactive is crucial to ensuring these rights are upheld. Below are six key steps an attorney specializing in veterans’ rights recommends* that you should take to protect your career, along with relevant legal links for further information.

1. Notify Your Employer: Get It in Writing

USERRA requires you to give your employer advance notice of your military leave, but it doesn’t mandate that this notice be in writing. Still, written communication is essential to avoid future disputes. Email your employer with a professional, clear notice about your deployment. Below is a possible sample:

Subject: Military Leave Notification
Dear [Employer’s Name],
I have been mobilized for military duty in response to Hurricane Milton and need to take military leave under USERRA and state law. I will keep you updated as more information becomes available. Please let me know if you need any further documentation or information.
Best regards,
[Your Name]

Documenting this communication will protect you later.

2. Pay During Military Leave: Employer Discretion

USERRA doesn’t require employers to pay you during military leave. However, there are exceptions.

If your company offers paid leave for events like jury duty or bereavement, they must offer the same for military leave.

Public employees in certain states like Pennsylvania and New Jersey may be eligible for paid military leave for up to 30 or 90 days, respectively. Some companies voluntarily offer differential pay, covering the gap between your military and civilian salaries, but you should ask about this benefit before leaving to avoid financial surprises.

3. Vacation and Sick Leave: Your Choice

USERRA protects your right to choose whether to use vacation days, sick leave, or FMLA time during deployment. Your employer cannot force you to use these benefits, but if you prefer to use them for financial reasons, you can. Also, remember, if your employer offers paid leave for things like jury duty, they must extend that to military leave as well.

4. Health Insurance: Options and Costs

You can keep your employer-sponsored health insurance for up to 24 months under USERRA, but after 30 days, you may need to pay 102% of the premium (including the employer’s share). If this is too expensive, consider switching to TRICARE, the military’s healthcare system.

Depending on whether you are deployed under federal orders (Title 10) or state orders, you may qualify for TRICARE Prime, the same insurance as active-duty members. If not, TRICARE Reserve Select may be available, offering more affordable premiums (around $260 per month for a family). Once you return from deployment, your employer must reinstate your previous health coverage without delay.

5. The Escalator Principle: A Common Violation

The escalator principle ensures that, upon your return, you are entitled to the same  seniority, promotions, and pension benefits you would have earned if you hadn’t been called to duty. This is frequently violated USERRA protection. Your employer must treat your time away as if you had never left, meaning any raises, promotions, or benefits you would have earned must be applied retroactively. Employers sometimes overlook this rule, offering lower positions or denying promotions. These actions are illegal under USERRA.

6. Reemployment Rights: Know Your Deadlines

USERRA guarantees your right to return to your job. The deadline depends on how long your deployment lasts: if under 30 days, you must return the next day; between 30 and 180 days, you have 14 days to notify your employer; and for deployments longer than 180 days, you have 90 days to return to work.

Keep your military orders handy, as your employer may request them. USERRA covers both federal deployments and state mobilizations for disaster relief, such as Hurricane Milton, so state service members are protected too. Many states, like New York and Virginia, have additional laws that classify military service as a protected status, providing further legal protections against discrimination.

What to Do If Your Employer Violates USERRA

If your employer fails to comply with USERRA, you have several options. The Employer Support of the Guard and Reserve (ESGR) offers free mediation services, but participation is voluntary, and some employers may refuse. If mediation fails, you can file a complaint with the DOL’s Veterans’ Employment and Training Service (VETS), though their enforcement is limited—only a small number of cases lead to action by the Department of Justice (DOJ). In 2022, only two out of 52 cases resulted in government action.

If legal action becomes necessary, hiring an employment lawyer experienced in veterans’ rights and military discrimination can be crucial. You can find one through local bar associations or websites like Justia. Consider asking for a flat fee for initial services, like drafting a letter to your employer, or contingency fee arrangements if you need to sue.

If you would like to retain Equal Justice Solutions, you can learn more about our work on military discrimination, which we specialize in, here.  All initial consultations are with an attorney and 100% free, with no obligation. 

While many employers misunderstand their obligations under USERRA, many also want to do the right thing. By being proactive and informed, you can protect both your civilian career and your ability to serve your country.

*Not legal advice. Nothing here should be construed to create an attorney-client relationship. This article is just general information. Readers are urged to hire competent counsel experienced in USERRA.