Employer Compliance — Columbia, SC
By Bettis Law Group, LLP
The core military leave rules for employers come from USERRA (38 U.S.C. § 4301 et seq.), a federal law that covers virtually every employer regardless of size. You must release employees for National Guard and Reserve duty — including summer annual training — without forcing them to use PTO, then reemploy them under the “escalator principle” with intact seniority, up to five cumulative years. The South Carolina employment lawyers at Bettis Law Group help employers audit military-leave policies before a complaint arrives.
Every summer, National Guard and Reserve units run their annual training cycles, and a wave of two-week leave requests lands on HR desks across South Carolina. For many employers, that request raises immediate questions: Do we have to hold the job? Can we make the employee burn vacation? What benefits keep running? And when the employee comes back, what exactly do we owe them?
The answers live almost entirely in one federal statute — the Uniformed Services Employment and Reemployment Rights Act (USERRA) — and getting them wrong is expensive. USERRA claims carry no statute of limitations, so a mishandled 2026 leave can surface as a lawsuit years from now. At Bettis Law Group in Columbia, we represent employers, and this guide walks through what the law requires of your business, current as of July 2026, and where employers most often get sued. This is general information, not advice on your specific situation.
USERRA’s Coverage: The Military Leave Rules for Employers Apply to Every Size, No Hours Threshold
USERRA applies to virtually all public and private employers in the United States, with no minimum employee count and no hours-worked threshold. This is the single most common employer misconception about the military leave rules for employers — the assumption that small businesses are exempt.
They are not. Unlike other workplace laws you may be used to, USERRA has no coverage floor:
- Title VII and the ADA require 15 or more employees.
- The ADEA (age discrimination) requires 20 or more.
- The FMLA requires 50 or more employees within 75 miles.
- USERRA applies from your first employee — no size, tenure, or hours threshold at all.
There is also no tenure requirement for the employee to be protected. Temporary, part-time, probationary, and seasonal workers are generally covered from day one.
What Counts as Protected “Uniformed Service”
Liability often starts when a manager misjudges what qualifies as protected service. USERRA covers both voluntary and involuntary service in the uniformed services, including:
- Active duty and active duty for training (this is where summer annual training falls);
- Initial active duty for training;
- Inactive-duty training (weekend drills); and
- Full-time National Guard duty under federal authority.
You cannot dictate when an employee performs military duties, and you cannot deny leave because the timing is inconvenient for the business.
The “Motivating Factor” Standard — Why Documentation Matters From Day One
USERRA’s anti-discrimination provision (38 U.S.C. § 4311) prohibits basing any employment decision — hiring, retention, promotion, or any benefit — on an employee’s past, present, or future military obligations. The evidentiary framework is uniquely difficult for employers: if an employee shows that military service was a “motivating factor” in an adverse action, the burden shifts to the employer to prove it would have taken the exact same action anyway. A single stray comment about deployments “hurting our metrics” can flip that burden — which is why neutral, contemporaneous documentation is your best defense.
If a dispute does arise, employers typically encounter a tiered enforcement system, and the referral path depends on employer type. The Employer Support of the Guard and Reserve (ESGR) offers informal mediation, and the U.S. Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) investigates formal complaints. From there, cases against private and state or local government employers may be referred to the U.S. Attorney General / Department of Justice for litigation, while cases against federal executive agencies go to the Office of Special Counsel and proceed through Merit Systems Protection Board channels (38 U.S.C. §§ 4322–4324). Importantly, a service member is not required to go through VETS first — they may file suit in court directly.
The Summer Training Scenario: Notice, Pay, and Benefits During Leave
When an employee leaves for their two-week annual training, a specific sequence of obligations kicks in. Mishandling notice, PTO, or benefits during this window is a frequent trigger for a complaint.
Advance Notice — Required, but Flexible
Under 38 U.S.C. § 4312(a)(1) and its regulations (20 C.F.R. § 1002.85), the employee or an appropriate military officer must give advance notice of the leave. But be careful before disciplining anyone over notice:
- Notice may be oral or written, and it does not have to follow any particular format.
- The notice requirement is waived when advance notice is precluded by military necessity, or is otherwise impossible or unreasonable (20 C.F.R. § 1002.86).
You Cannot Force the Use of PTO
A common and costly error: you cannot require a service member to use accrued vacation, annual leave, or PTO to cover a military absence (38 U.S.C. § 4316(d)). The choice belongs to the employee — they may elect to use paid leave during the absence, but that election is theirs alone, not yours to impose.
The Unpaid-Leave Baseline — and the South Carolina Distinction
USERRA leave is generally unpaid — federal law does not create a standalone requirement that a civilian employer keep paying salary during military service. But “generally unpaid” is not the same as “always unpaid,” and this is a line worth getting exactly right:
- The equal-treatment rule can convert unpaid military leave into paid leave. Under 38 U.S.C. § 4316(b)(1) and 20 C.F.R. § 1002.150, a service member on leave must receive the same non-seniority rights and benefits you extend to employees on comparable non-military leaves. Federal appellate courts have held that where an employer pays for comparable short-term leaves — jury duty, bereavement — that pay obligation can extend to short military leaves as well (White v. United Airlines, 7th Cir. 2021; Travers v. FedEx, 3d Cir. 2021). The safe rule: military leave is unpaid unless you pay for comparable non-military leave, or a policy or contract provides pay.
- South Carolina adds no private-employer paid-leave mandate. S.C. Code § 8-7-90 — which grants paid military leave — applies only to “officers and employees of this State or a political subdivision,” meaning state agencies, public schools, and local governments. It does not reach private businesses.
Do not mistake the public-sector § 8-7-90 benefit for a private-sector obligation — but do audit your own leave policies for the comparable-leave trap before you deny pay.
Health Coverage and the Equal-Treatment Rule
Health-plan continuation is governed by 38 U.S.C. § 4317:
- Leaves of 30 days or less (like annual training): you must maintain coverage as if the employee were still working, and you may only charge their normal employee share of the premium.
- Leaves of 31 days or more: the employee may elect to continue coverage for up to 24 months, and you may require them to pay up to 102% of the full premium.
While on leave, the service member is treated as being on a furlough or leave of absence (§ 4316(b)), which triggers the equal-treatment rule: you must extend the same non-seniority rights and benefits you give other employees on comparable non-military leave. Separately, pension and seniority-based benefits accrue under § 4318 as if no break in service occurred.
Reemployment Done Right: The Escalator Principle and the 5-Year Rule
When the employee finishes training or deployment, the reinstatement rules are where employer liability concentrates — because returning service members do not simply get their old job back.
First, the Four Eligibility Criteria (§ 4312)
You owe reemployment when the employee meets four conditions:
- Advance notice was given before leaving (subject to the military-necessity exceptions).
- The five-year cumulative limit was not exceeded.
- The employee makes a timely return or application (deadlines below).
- Character of service was not disqualifying (not separated under dishonorable or other-than-honorable conditions).
The Escalator Principle (§ 4313)
If those criteria are met, the employee steps onto the “escalator.” Under 38 U.S.C. § 4313, you must place the returning employee in the position — including seniority, status, and pay — they would have attained with reasonable certainty had they remained continuously employed. If a promotion or raise would have come automatically through seniority, the employee is entitled to it. Where reasonable, you must also make efforts to train and qualify them for that position.
The escalator can also move downward: if the employee would have been swept up in a legitimate, documented company-wide layoff regardless of their service, they may be placed accordingly — but only if military service played no part in the decision.
The Five-Year Rule Is More Forgiving Than It Sounds
An employee is generally limited to five cumulative years of military leave with a single employer (§ 4312(c)) — but the clock is full of exclusions that protect the employee. Annual training, weekend drills, involuntary active-duty extensions, and call-ups for declared emergencies or wars do NOT count toward the five years. In practice, a career reservist doing summer training and weekend drills will almost never exhaust the limit.
Prompt Reinstatement — The Return-to-Work Deadlines
The employee’s deadline to return is set by the length of service, under § 4312(e):
| Length of military service | When the employee must report or apply |
|---|---|
| 1–30 days (e.g., annual training) | Report at the start of the next regularly scheduled work period, after safe travel home plus an 8-hour rest period |
| 31–180 days | Apply for reemployment within 14 days of completing service |
| 181+ days | Apply within 90 days of completing service |
If the employee is hospitalized or recovering from a service-connected injury or illness, these deadlines can extend by up to two years.
Where Employers Get Sued: Discipline Timing, “Prompt Reinstatement,” and Documentation
Even well-run HR departments stumble in the weeks after an employee returns. Liability typically stems from disciplining or discharging a returning service member too soon, botching the escalator, or failing to keep neutral, documented records.
The Post-Reemployment “For Cause” Protection
USERRA temporarily alters South Carolina’s at-will rule. Under 38 U.S.C. § 4316(c), a properly reinstated employee cannot be discharged except for cause for a protected window tied to length of service:
- Service of 181+ days: protected from discharge except for cause for one year (365 days) after reemployment.
- Service of 31–180 days: protected for 180 days after reemployment.
- Service of 30 days or less: no special “for cause” window — though the general § 4311 anti-discrimination protections still apply fully.
During these windows, the employer bears the burden of proving the discharge was for legitimate cause and that the employee was on notice the conduct could lead to discharge. (Note: AI-generated summaries frequently misstate these periods — a returning employee after a two-month deployment gets 180 days of protection, not 30.)
Retaliation and Escalator Disputes
Lawsuits under § 4311 often grow out of discipline that lets service-related bias creep in — for example, penalizing an employee for “unreliability” when the absences were dictated by military orders. Escalator disputes generate their own claims when an employer refuses to credit missed time toward seniority-based promotions.
The Financial Exposure
A prevailing employee is entitled to reinstatement, back pay, and restoration of lost benefits (§ 4323). Beyond that, recent legislation sharply raised the stakes — courts may now award liquidated damages with a statutory minimum and mandatory attorney’s fees (see the amendments section below). Because there is no statute of limitations (§ 4327(b)), your exposure window is effectively indefinite — making documentation your most important defense.
A Documentation Checklist for South Carolina Employers
To survive that open-ended liability window, build a paper trail in real time:
- Escalator rationale. A written memo showing exactly how you calculated the reemployment position and pay.
- Seniority audits. Dated charts proving the returning employee was credited for military-leave time alongside civilian peers.
- Downward placements. Documentation of the business necessity (e.g., a restructuring memo predating the return) for any lower placement or layoff.
- Disciplinary independence. Written warnings, signed policy acknowledgments, and comparative peer discipline showing non-military employees are treated the same for the same conduct.
What Changed Recently: The 2025–2026 USERRA Amendments
Two federal changes should already be in your compliance manual. Because these are recent, we frame current status carefully.
The Dole Act (2025) — Higher Employer Risk
The Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act (Pub. L. 118-210), signed into law January 2, 2025, made the most significant increases to USERRA employer liability in decades. Per the sources reviewed for this article, its changes include:
- Mandatory attorney’s fees for a prevailing employee (the statute shifted from “may, in its discretion” to “shall”).
- A minimum liquidated-damages floor — courts may award the greater of $50,000 or the total lost wages and benefits for a knowing violation (a shift from the older “willful” standard). (As with any specific damages figure, confirm the current statutory number with counsel before relying on it — dollar thresholds change.)
- Broader retaliation protection, reaching “other retaliatory action” beyond a narrow “adverse employment action.”
- Explicit authority for early injunctive relief (e.g., halting a termination before trial).
The CREW Act — FEMA Reservists Now Covered
The Civilian Reservist Emergency Workforce (CREW) Act (Pub. L. 117-178) extended USERRA’s full employment and reemployment protections to FEMA reservists deploying to major disaster sites. The practical takeaway for employers: treat a qualifying FEMA-reservist deployment with the same USERRA deference as a National Guard call-up.
What South Carolina Employers Get Wrong (Quick Reference)
| Common belief | The correct rule |
|---|---|
| “USERRA only applies to large employers.” | It applies to virtually all employers, any size — no 15- or 50-employee threshold. |
| “We can make an employee use PTO for military leave.” | No — the employee may elect to, but you cannot require it (§ 4316(d)). |
| “The returning employee just gets their old job back.” | No — the escalator principle (§ 4313) places them where they would have been. |
| “Annual training counts against the 5-year limit.” | No — annual training and drills are statutory exclusions (§ 4312(c)). |
| “USERRA has a short filing deadline.” | No — there is no statute of limitations (§ 4327(b)). |
| “South Carolina requires private employers to pay for military leave.” | No — paid military leave under § 8-7-90 is for public employees only. |
Frequently Asked Questions
Does USERRA apply to my small South Carolina business? Almost certainly, yes. USERRA covers virtually all employers regardless of size, with no minimum employee count and no hours threshold — the exemptions you may know from Title VII (15) or the FMLA (50/75 miles) do not exist here.
Can I require an employee to use vacation or PTO for their annual training? No. Under 38 U.S.C. § 4316(d), you cannot require it. The employee may choose to use accrued paid leave, but that decision is theirs.
Do I have to keep paying an employee during military leave? Generally no — USERRA leave is unpaid under federal law, and South Carolina imposes no paid-military-leave requirement on private employers. You do, however, have obligations around health coverage and equal treatment of non-seniority benefits, and your own policy may say more.
When can I discipline or terminate a returning service member? You may always discipline for legitimate, well-documented cause, but the timing matters. After longer service, USERRA protects a reinstated employee from discharge except for cause — up to one year for 181+ days of service, and 180 days for 31–180 days of service — with the burden on you to justify the discharge.
Does the employee automatically get promotions they missed? If a promotion or raise would have occurred with reasonable certainty through seniority had the employee stayed continuously employed, the escalator principle generally requires you to provide it on their return.
Talk With a South Carolina Employment Lawyer at Bettis Law Group
Military-leave compliance is easier to get right before a request lands than to defend after a complaint. The South Carolina employment lawyers at Bettis Law Group represent employers statewide, and we help businesses audit military-leave policies, calculate escalator positions, and build the documentation that defends a decision if it is ever challenged.
If you have a pending annual-training request, a reinstatement question, or you simply want your policies reviewed, we invite you to speak with one of our experienced lawyers in confidence. Call (803) 799-9311 or contact our team to request an appointment. You can also learn more about our work in labor and management relations and wage and hour compliance, or browse our employer law journal for more management-side guidance.
This article is general legal information, not legal advice, and does not create an attorney-client relationship. Federal and South Carolina employment laws change, agencies update their rules, and every situation turns on its specific facts. Consult a licensed South Carolina employment attorney about your business’s situation. (Attorney advertising — SC Rules of Professional Conduct 7.1.)
