What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to protect the civilian careers of military service members and veterans. It prohibits employment discrimination because of military service. The statute also provides a wide range of protection regarding reemployment with a civilian employer upon the conclusion of military service. USERRA also prohibits retaliation against those who seek to enforce their rights under the statute or who assist another in enforcing those rights.
Who is Protected Under USERRA?
USERRA applies to all military service members, past and present, with a focus on those that have civilian careers and employment and perform service in the U.S. Uniformed Services. Uniformed Services include service in the Army, Navy, Marine Corps, Air Force and Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve, Army National Guard and Air National Guard Commissioned Corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency.
Who must comply with USERRA:
Every employer must comply with USERRA, including private employers, the federal government, and state and local governments. Unlike many other employment statutes, there is no minimum number of employees that an employer must have to be obligated to provide the protections afforded under USERRA.
Employee Rights Under USERRA
USERRA protects employees from discrimination due to military service. An employer may not deny initial employment, reemployment, retention in employment, promotion, or any employment benefits based on an employee's military service. This protection is provided for past and present members of the U.S. Uniformed Services, those who have applied for membership in the U.S. Uniformed Services, and those who are obligated to serve in the U.S. Uniformed Services.
USERRA also protects your right to re-employment. If you leave your civilian job to perform a qualified military service, your civilian employer is required under USERRA to rehire you once you return from service. There are, however, pre-conditions to this obligation.
Advanced Notice: When you leave for military service, you must give advance notice of your service obligation, either written or verbal, to your employer unless you are unable to do so by reason of military necessity, or it is otherwise impossible or unreasonable for you to do so.
Length of Service: The cumulative period of your service, which includes all prior absences for uniformed service, must not exceed five years, although there are many types of service that are not counted toward this five-year limit.
Application for Reemployment: Moreover, upon the conclusion of your military obligation, you must apply for reemployment. Depending on the circumstances, you may have to give notice immediately upon your return (if the period of service was less than 31 days) or you may have as long as 90 days to do so (if the period has exceeded 180 days.) In some cases of service-connected illness or injury, the required notice period could be extended to two (2) years or longer.
Employer Obligations Under USERRA
Employers are obligated to re-employ a returning service member in the position in which the employee would have held if they were not absent for military service. For example, if a returning employee held the position of shift leader prior to a 2-year military assignment, it is reasonable to believe that the employee would have been promoted to a higher position during those 2 years. Upon returning to work, the employer is required to make every attempt possible to restore the employee to the position “that he or she would have attained with reasonable certainty if not for the absence due to uniformed service,” (20 CFR §1002.191).
However, this may not always be a positive thing for the returning employee. Upon examining the position the employee would have held, employers may find that the position was a part of a group of layoffs or that the position has been done away with entirely. In both circumstances, the employee would return to find their job no longer exists.
If the employee has become disabled as a result of their military service, the employer is required to make reasonable accommodations to aid the returning employee in their day-to-day duties at the company. If providing such accommodations presents an undue hardship on the employer, making such accommodations is not required.
Other factors to be considered upon reemployment are:
- The length of the most recent period of uniformed service;
- The employee’s specific qualifications; and
- Whether or not the employee incurred (or aggravated) a disability during service.
If you feel your employer has not fulfilled their obligations under USERRA, contact the experienced USERRA lawyers at Tully Rinckey, PLLC today.
Filing a USERRA Complaint
USERRA complaints may be filed with the Department of Labor, State or Federal courts. Currently, there is no statute of limitations for a USERRA claim, meaning that a case that arises today can be filed at any time. However, in some cases that arose prior to the Congressional enactment, which made clear that no statute of limitations applied, might still be considered barred by a four-year statute of limitations. In any event, it is important not to delay filing unduly. Such delay can significantly impact on the case.
What remedies are available under USERRA?
Once a court complaint has been filed, the judge can impose a number of remedies, including:
- Reinstatement of employment.
- Compensation for lost wages or benefits suffered by reason of the employer’s failure to comply with USERRA
- In a case involving a private sector employer, require the company to pay double the amount of lost wages and benefits if the violation of USERRA is determined to have been willful
- Award a successful employee attorney’s fees and costs associated with the lawsuit. However, no fees or court costs can be awarded against the service member, meaning that even if he or she loses, the employer is not entitled to attorney’s fees or costs.
This material is not intended to be a complete explanation of USERRA, but only to provide an overview. USERRA provides many protections not completely discussed here. Each situation is unique and there are many rules and exceptions under USERRA. It is important for us to gain a full understanding of your personal circumstances in order to advise you on further steps and how the Act will protect you.
