The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a U.S. federal law designed to protect service members from employment discrimination and job loss due to their military service. While many assume that this law only applies to domestic employers, the reality is different. If your business is located overseas but employs U.S. citizens, foreign companies—the CREW Act, USERRA apply to you too.
Whether your employee serves in the Army National Guard, Air National Guard, Public Health Service, or National Disaster Medical System, understanding USERRA’s requirements is essential. This article breaks down how global employers are impacted by USERRA, what supervisors must know, and how to manage obligations toward reserve military personnel, even across borders.
Who Does USERRA Protect?
USERRA applies to individuals (against his or her employer, or his or her civilian employer) who perform service in the uniformed services, including:
- Active duty
- Inactive duty training
- National Guard and Reserve military personnel
- Service in the Public Health Service
- Military retirees called back to service
- Participants in the National Disaster Medical System
Foreign Companies, the CREW Act & USERRA Apply to You Too
The law ensures that these service members do not lose their civilian employment or benefits because of their duty. It also protects against being denied initial employment, demotion, or loss of reemployment rights due to their service obligations.
Moreover, they might save victims in scenarios where employers might claim is or their employer’s permission matters. These laws generally apply to the proper military authority, but if the employee establishes eligibility for his or her employment.
Does USERRA Apply to Foreign Employers?
Yes. Even if your company operates outside of the United States, USERRA applies if:
- You are a foreign employer with U.S. citizen employees
- The employee works in a civilian employment position
- There is a connection between the company and the federal government or a U.S.-based corporate entity
The U.S. courts have ruled that foreign employers may be held accountable under USERRA if the company has a U.S. presence or performs business with U.S. federal agencies. The law also applies to entities with only one employee, so size offers no exemption.
Employment Protections for Reservists
The protections under USERRA are extensive and apply to all stages of employment, from initial hiring decisions to termination.
1. Anti-Discrimination
USERRA’s anti-discrimination provisions prevent any entity from denying employment or promotion due to current or pending service. Employers cannot factor in military necessity, inactive duty training, or the burden of leave as a reason to reject or penalize a candidate.
Even professional employees or those on global assignments are covered. An employee’s civilian employment position must be preserved as though no service interruption occurred.
2. Job Reinstatement
Once an employee finishes their period of service, the employer must take reasonable efforts to reinstate them. This includes:
- Reinstated to the same or a similar employment position
- Matching pay and benefits
- Accommodating necessary training service or skill training
Even if the employer is located overseas, they are required to establish reemployment eligibility when the employee returns and provides timely notice.
Key Requirements for Compliance
There are several key requirements for compliance in case of an employer’s business that employees need to be mindful of. Here’s a quick look at them:
1. Employer Notice Obligations
USERRA does not require the employee to obtain her employer’s permission or employer’s permission to take military leave. However, the employee must provide employee’s notice in advance when possible.
Supervisors should never deny leave based on workload, business cycles, or the expense involved in coverage. These concerns do not override USERRA protections.
2. No Independent Contractor Escape
Some foreign employers attempt to reclassify workers as independent contractors to avoid liability. This is not effective under USERRA if the employment relationship otherwise meets the law’s standards.
The U.S. Department of Labor has made clear that labels don’t override function. If the individual worked under your direction and control, they’re likely an employee under the law.
Reemployment After Service: What Employers Must Do
To establish reemployment eligibility, three factors must align:
- The employee intends to return to work
- The period of service did not exceed five cumulative years (with some exceptions)
- The employee’s service ended honorably, and they returned within the USERRA time limits
Once these are met, employers must place the employee back into their job position or a comparable one—even if the business has changed. The returning employee cannot be punished for her service, or her obligations, or for choosing to perform military service.
Exceptions and Defenses
USERRA allows narrow exceptions when:
- It’s impossible or unreasonable to reinstate the employee (e.g., company closure)
- The employee’s fault caused the separation
- The business took reasonable steps, but could not accommodate due to legitimate hardship
However, the employer bears the burden of proof. If an employee served in a national emergency declared by the President or during involuntary active duty, courts will often side with the employee.
Remember: An employer cannot take action on an employee’s behalf. Therefore, employees should fight for their rights in every case whatsoever. However, learning to contact the appropriate officer and complete skill training is necessary. Moreover, here are 5 things an employment lawyer wants you to know.
Best Practices for Global Employers
Understand Local and U.S. Law
Ensure your HR and legal teams are aware of both host-country employment law and USERRA. While foreign companies may not routinely apply U.S. statutes, this one is non-negotiable for U.S. employees.
Train Managers and Supervisors
Make sure your leaders understand the requirements of the reemployment rights act, especially for roles involving professional employees or high mobility.
Document Everything
Maintain clear records of employees’ notice, employer notice, pending service, and reemployment discussions. This can protect both the employer and the employee.
Avoid Retaliation or Disruption
Even subtle shifts in responsibility or an employee’s professional development may appear retaliatory. Continue development plans, mentorship, and compensation structures as if no absence occurred.
What If There Is More Than One Employer?
When more than one employer shares control—such as in joint ventures or global partnerships—all parties may be held responsible. A pre-service employer cannot claim they’re no longer responsible simply because the work site changed.
Additionally, if the employee works in a joint U.S.-foreign project, the federal government may become indirectly involved, raising the stakes for compliance.
Recognizing the “Critical Person”
In certain cases, employers argue that the employee was a critical person with unique duties or that an individual’s managerial skill was essential to operations. While this may pose operational challenges, USERRA generally does not permit exceptions due to importance.
Employers must make all reasonable efforts to cover the role or restructure temporarily.
Handling Returning Employees and Job Offers
If an employee completes training service, military training school, or obligated service, they must be reinstated promptly. Even if the employer has filled their role, the returning employee must be reinstated to a similar or better employment position.
Delaying reemployment while the employee completes uniformed service or reserve training requirements may violate USERRA. Delays also damage employee morale and trust.
Protecting Service Members in a Global Workforce
The purpose of USERRA is to protect service members from civilian career loss due to military service. Whether the employee is returning from active duty, inactive duty training, or deployment with the National Disaster Medical System, they deserve uninterrupted career development.
Employers are not required to maintain pay during the leave, but they must maintain benefits where applicable and comply with reinstatement obligations upon return.
Final Thoughts: Compliance Is Global
If you are a foreign employer with U.S. citizen staff—even only one employee—you are subject to USERRA. The Reemployment Rights Act, bolstered by the CREW Act, ensures that employees called to perform service are not left behind in their careers.
From initial employment through return from service, it is your legal responsibility to uphold their rights and respect their service.
Failure to comply may result in litigation, reputational damage, or sanctions by U.S. federal agencies. Even in a global workforce, the duty to support those who serve remains the same.
Bottom Line
Are you a foreign company with U.S. employees performing military or public service? Are you unsure whether your policies align with USERRA or the CREW Act?
Bourassa Law Group offers compliance reviews, reemployment strategy consultations, and defense representation for employers navigating complex cross-border military employment cases.
Contact us today to ensure your business is not only globally compliant but also aligned with American values of fairness, respect, and lawful service.
Get in Touch with Our Employment Lawyers
1-800-870-8910