## USERRA + military leave in West Virginia **USERRA** (Uniformed Services Employment and Reemployment Rights Act, 1994) is the federal law protecting military servicemembers' civilian jobs. West Virginia servicemembers have strong protections during AND after military service. ## Coverage **Who's protected:** - Active duty military (Army, Navy, Air Force, Marines, Coast Guard, Space Force) - Reserves - National Guard (during federal service) - Public Health Service commissioned corps - NOAA commissioned corps - Some intermittent disaster-response personnel **Who's covered as employer:** - All employers (no minimum size) - Federal, state, local government - Private employers - Successor employers (after sale) **${s.name} also has state law:** - Often parallel federal protections - Sometimes broader - Specific ${s.name} provisions ## What USERRA requires **Five key protections:** **1. Right to military leave:** - Up to 5 years cumulative military service - Some service excluded (training, etc.) - Voluntary or involuntary - Federal active duty also generally exempt from 5-year limit **2. Right to reemployment:** - Same job back (escalator principle) - Or comparable position - Same status, seniority, pay rate - As if continuously employed **3. No discrimination:** - Cannot deny employment because of military service - Cannot fire / demote because of military service - Cannot deny promotion / training - Cannot retaliate for asserting rights **4. Continued benefits:** - Health insurance continuation (TRICARE alternative) - Pension accrual continues - Vacation accrual (per employer policy) - Other benefits maintained **5. Specific protections post-return:** - Cannot terminate within specific period without cause - 1 year for service over 180 days - 180 days for service 31-180 days - For-cause termination still allowed ## Pre-service notification **Servicemember must:** - Give advance notice (when feasible) - Verbal sufficient (no specific form) - No specific timing ("as much advance as possible") - Some emergency exceptions **Employer cannot require:** - Specific notice format - Specific time period - Use of particular leave type (vacation, etc.) - Counseling about military participation ## During military service **Employer continues:** - Pension contributions / accruals - Health insurance (servicemember can elect to continue or use TRICARE) - Service credit for promotions / seniority - Vacation / PTO accrual (if employer policy) **Employer cannot:** - Terminate servicemember - Reduce benefits - Reassign permanently - Refuse to allow leave - Penalize for service ## Returning to work **Servicemember must:** - Be released from service under honorable conditions - Apply for reinstatement within deadlines: - 1 day for service under 31 days - 14 days for service 31-180 days - 90 days for service over 180 days - Time tolled by hospitalization **Employer must:** - Reemploy promptly - Same position OR comparable - Same seniority + status + pay - Make-up training as needed - Restore benefits - Honor escalator principle (promotions that would have happened) ## The "escalator principle" **Critical concept:** - Servicemember treated as if never left - Promotions that would have happened apply - Pay raises applied - Seniority unbroken - Even if specific position eliminated **Example:** - Servicemember left at job X - During service, X eliminated, but Y created - Servicemember would have moved to Y - Servicemember reinstated to Y ## Exceptions to reemployment **Employer NOT required to reemploy if:** 1. **Impossible / unreasonable** — circumstances changed making impossible 2. **Servicemember can't perform** — disability + can't be accommodated 3. **Bad-faith hiring** — temporary employment specifically to avoid USERRA 4. **Felony or other-than-honorable discharge** — disqualifying **Strict standards — most employers must reemploy.** ## Health insurance **During service:** - COBRA-like continuation 24+ months - Servicemember pays full premium - May choose TRICARE instead (often free) - Specific procedures **Upon return:** - Immediate reinstatement - No waiting periods - No pre-existing condition exclusions - Same coverage as before ## Pension / 401(k) protection **During service:** - Treated as continued service - Vesting continues - No break in service **Upon return:** - Right to make up missed contributions - Up to 3 times normal contribution period - Employer matching restored - Significant retirement protection ## Filing complaints **USERRA complaints:** **1. VETS (Veterans' Employment and Training Service):** - DOL agency - Free + accessible - Investigation + mediation - Refer to DOJ if needed **2. Direct lawsuit:** - Federal court (private employers) - Court of Federal Claims (federal employers) - State court (some) **3. State remedies:** - ${s.name} parallel laws - State labor agencies ## Damages **USERRA remedies:** - Lost wages + benefits - Reinstatement - Liquidated damages (for willful violations) — DOUBLE backpay - Attorney's fees - Pre-judgment interest - Specific equitable relief **No damages caps:** - Unlike Title VII - Full recovery available - Liquidated damages strong incentive ## Common employer mistakes - Refusing to reemploy - Reemploying to lesser position - Discriminating in hiring veterans - Failing to maintain benefits - Failing to apply escalator principle - Punishing absences for military duties (drills, training) - Counting military leave against PTO - Background check questions about military service ## Common servicemember mistakes - Not notifying employer - Not applying for reinstatement timely - Accepting lesser position without challenge - Not documenting employer treatment - Not knowing rights - Settling without legal advice ## Special situations **Federal employees:** - Different procedures (CSRS / FERS) - Department-specific - Generally easier reemployment **National Guard:** - State active duty governed by state law - Federal service (Title 10) covered by USERRA - Title 32 service often covered too - Most states have parallel state law **Reserve drills + training:** - 14 days for annual training - 1 weekend / month drills - Employer must accommodate - Cannot count against vacation **Disabled veterans:** - Reasonable accommodation under USERRA - Plus ADA protections - Successor employer obligations ## ${s.name} state protections **${s.name} likely has:** - Parallel reemployment statute - State military leave provisions - ${s.name} National Guard protections - Sometimes broader than USERRA - Different procedures ## Practical tips for servicemembers **Before service:** - Notify employer in writing - Get acknowledgment - Document position + benefits - Save offer letter / handbook - Know your rights **During service:** - Keep employment records - Maintain communication when feasible - Keep employer updated on return date - Document any benefits issues **Upon return:** - Apply for reinstatement promptly - Document reinstatement (or refusal) - Monitor escalator principle - Watch for retaliation - Consult attorney if issues ## What you should do If you're a West Virginia servicemember facing employment issues: contact VETS hotline (1-866-487-2365) — free + effective. For complex cases, hire employment / military law attorney. Many West Virginia attorneys handle USERRA cases. Liquidated damages + attorney's fees create strong incentive for representation. --- *This guide is general information about federal + West Virginia law as of mid-2026 and is not legal advice. USERRA cases are technical. Talk to a licensed West Virginia employment attorney or VETS counselor about your specific situation.*