In light of the recent military conflicts overseas, many employers have become intimately familiar with the requirements of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). This federal law provides reemployment rights for veterans and members of the National Guard and Reserve following certain types of military service and prohibits discrimination on the basis of the employee’s military service.

As a result of many employees returning to work, employees are regularly faced with the recurring issue of satisfying the obligations of USERRA. One element of USERRA that has traditionally escaped the attention of employers is the intersection between USERRA and another familiar acronym, the FMLA. Most employers know that the Family and Medical Leave Act (“FMLA”) is the federal law that provides eligible employees of a covered employer the right to take up to 12 weeks of unpaid, job protected leave during any 12 months. In order to be eligible for the leave under the FMLA, employees must meet a number of eligibility criteria, two of which are directly affected by USERRA. One of these requirements is that the person must have been employed by the employer for at least 12 months. The other is that the employee work at least 1,250 hours for the employer during the 12 months preceding the start of the FMLA leave.

The intersection between these two statutes is that USERRA requires service members to receive all of the benefits of employment they would have received if they had been continuously employed upon their return to work. Specifically, USERRA requires that a person that is reemployed after military service be given credit for any months the employee would have been employed but for the military service in determining FMLA eligibility. Each month served performing military service will count as a month actively employed by the employer for FMLA purposes. For example, an employee who has been employed by an employer for 9 months and then participates in excess of 3 months of military service will be eligible for FMLA upon return from leave. In addition, with respect to the 1,250 hours of service requirement, the employee must also be credited with the hours of service that would have been performed but for the military service.

To clarify some of these issues, the Department of Labor has issued a question and answer sheet on its website at www.dol.gov to assist employers. Of course, if an employer has a specific question relating to the intersection of these two statutes, they should contact their employment counsel for more detailed guidance.

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