Part 16 · Chapter 2

USERRA and Employee Benefits: Pension Crediting, Health Continuation, and §414(u)

Law stated as of October 3, 2026 · FMLA, USERRA, and Wellness Programs

Scope and status

This chapter covers the benefits consequences of uniformed service: the USERRA reemployment framework as it bears on plans, §4318 pension crediting and the employer's funding liability, §4317 health plan continuation, the Code §414(u) qualified-plan mirror that makes the USERRA result administrable without disqualifying the plan, the HEART Act additions (§401(a)(37) death benefits, differential wage payments, qualified reservist distributions), and the live §4316(b) paid-leave and benefit-accrual litigation.

Citations are to primary authority (38 U.S.C. §§4301–4335; 20 C.F.R. Part 1002; Code §§401(a)(37), 414(u), 72(t)(2)(G), 3401(h); the HEART Act, Pub. L. 110-245). USERRA is administered by the DOL's Veterans' Employment and Training Service (VETS), with enforcement through the Department of Justice or the Office of Special Counsel and a private right of action — it is not an ERISA statute and the ERISA agencies do not administer it.

Sections

Part A is shown in full. The other sections are listed by title; their text is available to subscribers.

Part A — The Reemployment Predicate

A1.When the benefits obligations attach

Part 16, ch. 2, § A1

USERRA's benefit protections run to a person who leaves a position of employment to perform service in the uniformed services and who satisfies the reemployment conditions: advance notice to the employer (written or oral) unless precluded by military necessity or otherwise impossible or unreasonable; cumulative service with that employer of five years or less (subject to a long list of exclusions, including required training, involuntary retention, and service during war or national emergency); a discharge other than disqualifying (a dishonorable or bad-conduct discharge forfeits protection); and a timely application for reemployment — for service under 31 days, reporting by the beginning of the next regularly scheduled work period after travel and rest; for service of 31 to 180 days, application within 14 days; for service over 180 days, application within 90 days. Statute: 38 U.S.C. §§4303, 4304, 4312. Final reg: 20 C.F.R. §§1002.5, 1002.85–1002.104, 1002.115–1002.123 (reporting and application deadlines), 1002.134–1002.138 (character of discharge).

A2.The escalator principle and §4316(a)

Part 16, ch. 2, § A2

A reemployed person is entitled to the seniority and the seniority-based rights and benefits the person had on the date service began, plus the additional seniority and rights and benefits that the person would have attained with reasonable certainty had employment been continuous — the "escalator." Statute: 38 U.S.C. §4316(a). Final reg: 20 C.F.R. §§1002.191–1002.199.

A3.Non-seniority benefits and the §4316(b) comparability rule — the live litigation

Part 16, ch. 2, § A3

A person absent for uniformed service is deemed to be on furlough or leave of absence and is entitled to such other rights and benefits not determined by seniority as are generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence. The entitlement is forfeited only if the person knowingly provides written notice of intent not to return, and the employer bears the burden of proving the notice was given with knowledge of the specific rights being forfeited. Statute: 38 U.S.C. §4316(b)(1)–(2). The courts have read this to mean that where an employer pays employees on comparable non-military leaves, it may be required to pay employees on short-term military leave as well: Travers v. Federal Express Corp., 8 F.4th 198 (3d Cir. 2021), holding §4316(b) can require paid military leave; and Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023) (No. 21-35473, decided Feb. 1, 2023), reversing summary judgment for the employer and holding that comparability is a question for the jury where the employer provides paid jury-duty, bereavement, and sick leave — under a two-step framework in which the servicemember identifies a comparator group of similarly situated employees on leave and then proves the non-military leave is comparable to military leave. White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021), likewise held that paid leave is among the "rights and benefits" §4316(b) protects. Scanlan v. American Airlines Group, Inc., 102 F.4th 164 (3d Cir. 2024), reversed summary judgment for the employer on USERRA paid-leave and profit-sharing claims, the appellate authority for the benefit-accrual theory noted below. The defense side is not empty: Sorenson v. Delta Air Lines, Inc., No. 24-11946 (11th Cir. Apr. 22, 2026) (published), affirmed summary judgment for the airline, holding on its record that long-term military leave was not comparable to the airline's other leaves of absence, and holding on the pension claim that the §4318(b)(3)(B) 12-month-average rule looks to the individual employee's compensation, not a group average. The comparability factors all of these courts apply come from the regulation: duration (possibly the most significant factor), purpose, and the employee's ability to choose when to take the leave (20 C.F.R. §1002.150(b)). Clarkson has since settled (final approval and dismissal with prejudice, E.D. Wash., Jan. 15, 2025). Class litigation has followed, including the reported $18.5 million settlement in Huntsman v. Southwest Airlines Co., described by class counsel as the largest USERRA class recovery to date, under which the employer agreed to provide paid short-term military leave beginning in 2026. Case law: Circuit — Travers (3d Cir. 2021); White (7th Cir. 2021); Clarkson (9th Cir. 2023); Scanlan (3d Cir. 2024); Sorenson (11th Cir. 2026). Final reg: 20 C.F.R. §1002.150(b). No Supreme Court decision resolves the comparability standard (a cert petition from Sorenson, McLean v. Delta Air Lines, No. 26-275, was pending at Oct. 3, 2026); verify the current circuit landscape and any certiorari activity before relying on them.

The first Part of each chapter is open to everyone. The remaining sections, with their authority and practice points, are available to subscribers and to clients of ERISA Benefits Law Group, PLLC whose engagement includes access.