What is USERRA?
USERRA is short for the Uniform Services Employment and Reemployment Rights Act of 1994. It is a federal statute aimed at protecting the employment rights for servicemembers and veterans. If you qualify for USERRA protection, you are protected against employment discrimination based on uniform service and have the right to be rehired at your previous civilian job after you return from service if certain conditions are met.
What services qualify for USERRA protection?
An individual qualifies for USERRA protection if they served in a branch of the “Uniform Services.” The following branches qualify under USERRA:
- The Armed Forces include the Army, Navy, Air Force, Coast Guard, and Marine Corp.
- The Army National Guard if you are engaged in active or inactive duty for training.
- The Air National Guard if you are engaged in active or inactive duty for training.
- National Guard Duty if you are engaged in full-time service.
- The commissioned corps of the Public Health Service.
- System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service.
- Any other category of persons designated by the President in time of war or national emergency.
Additionally, the “service” an individual performs is not limited to active-duty services. “Service” that qualifies for USERRA protection extends to active duty, active duty for training, active duty for special work, weekend or weekday drills, funeral honors, and fitness for duty or any other required exam.
What protection does USERRA provide?
USERRA protects servicemembers and veterans against discrimination and guarantees reemployment at an individual’s previous civilian job at the end of their service if certain conditions have been met.
USERRA also protects servicemembers and veterans against discrimination in the workplace. This protection extends to individuals seeking employment and to individuals already employed. Under USERRA, an employer cannot discriminate against an individual based on past, current, or prospective service in the Uniform Services.
- Servicemember seeking employment: An individual looking for a job is protected under USERRA in scenarios where an employer refuses to hire them based on their past, current, or future military service. For example, an employer cannot eliminate an individual from consideration for a job because they may be deployed in the future, or because they cannot work on a specific day because of a military service commitment.
- Servicemember currently employed: A servicemember who is already employed is protected in situations where an employer discriminates against them for their military service. For example, an employer cannot overlook an individual for a promotion, refuse to issue a company-wide raise, or write the individual up because of their service in the military.
USERRA also provides reemployment protection. Under the statute, an employer is required to reemploy an individual when they return from military service leave. Reemployment will look different for each individual depending on factors like the length of the absence, what positions are available upon return, and whether the individual is still qualified for the position after they return from service.
Requirements for reemployment rights under USERRA.
The following conditions must be met to be eligible for reemployment after military leave:
- You must have been employed in a civilian job before your departure for military leave.
- You must have provided your employer with either written or verbal notice about your military leave before your departure unless you are prevented from doing so because of military necessity, or doing so is impossible or unreasonable. A sample notice is available here.
- An absence from a civilian job, cumulatively, cannot exceed five years.
- Discharge from service cannot be dishonorable.
- After your service ends, you must report back to your civilian job within a specific time period, shorter time periods will apply for shorter absences, and longer time periods will apply for longer absences. You may be required to resubmit an employment application for the position.
What does reemployment look like?
If you qualify for reemployment, your employer should make reasonable efforts to provide you with the following:
- “Prompt Reemployment” at your previous civilian job. This usually means within two weeks of your return or resubmission of employment application but can be longer depending on the circumstances.
“Accrued Seniority.” Your employer should make reasonable efforts to employ you in a position you would have obtained absent the military service leave – as if you were continuously employed. This seniority would apply to title, benefits, pay rate, pensions vesting, etc. Keep in mind that “accrued seniority” does not necessarily mean reemployment in an equal or higher position. This requirement considers external factors like changes in business structure or economic downturn.
- Training and Accommodations. Your employer is required to make reasonable efforts to train or retrain you for the position after you return from military service to perform in the position you are rehired at. Additionally, your employer is required to make accommodations for any disabilities related to your military service.
What can a court do if an employer violates USERRA?
If a court finds that an employer violated USERRA, the court can award a variety of remedies. The court can order compliance with the statute through reinstatement. Beyond compliance, the court can award compensation for any lost wages or benefits suffered because of the employer’s failure to comply with the statute. Additionally, if the employer’s noncompliance with the statute was willful, the court can also award liquidated damages equal to the amount of lost wages or benefits suffered from the noncompliance in addition to actual damages. Lastly, an individual who prevails on a USERRA claim can be awarded attorney’s fees, expert witness fees, or any other litigation expense by from the court.
Q&A Section for Servicemembers
Can I be fired for attending training or reporting for duty?
Not necessarily. As long as you provide your employer with proper notice and the service qualifies under “Uniform Services,” you cannot be fired for taking a military service absence. If your employer fires you because of your military service, this is an act of discrimination that is forbidden under USERRA and you should contact Jordan or Mike.
Can my employer cut my pay or position because I took a military leave?
No, your employer cannot cut your pay or position solely based on the fact you took a military service absence. If you provide your employer with the proper notice and your service qualifies under “Uniform Services,” you are protected under USERRA. If your employer lowers your pay, demotes your position, or takes any other form of retaliation against you because of your military service, this would be considered an act of discrimination that is forbidden under USERRA.
Do I have any protection regarding my service-related disabilities?
Yes. If you were injured or disabled during your military service, or if an existing injury or disability was aggravated during your military service, your employer must make reasonable efforts to provide you accommodations at your job. If your injury or disability makes it impossible for you to maintain your previous job, your employer must make reasonable efforts to find a comparable position you are qualified for.
Do I have reemployment rights under USERRA if my service was voluntary?
Yes. An individual is protected under USERRA if you are required to be on duty or you volunteer for duty. USERRA protects individuals who are performing Uniform Service. The law does not dictate whether the service needs to be voluntary or involuntary – as long as the service meets the requirements of USERRA, it is protected.
Do I need my employer’s permission or approval to take a military service leave?
No. You do not need your employer’s permission, the protection applies even if your employer does not approve of your absence.
Can my employer fire me after I was reemployed under USERRA?
USERRA provides servicemembers with additional job security beyond reemployment. USERRA prevents an employer from firing an individual without cause after their return from service. If your military service absence was 180 days or less but more than 30, your employer cannot fire you without cause for six months after your reemployment. If your military service absence was over 180 days, your employer cannot fire you without cause for one year after your reemployment.
Can my employer force me to use my vacation time to cover my military leave?
No. An employer cannot force an individual to use their earned vacation time to cover their absence for military service.
How long do I have to report back to my employer when I return from service?
If you were absent from your job for 30 consecutive days or less, you must show back up to work on the first full work period of the first full calendar day after you finish service, after accounting for travel and an eight-hour rest period.
If you were absent from your job for 31-180 days, you are required to resubmit an employment application with your employer within 14 days of your return from service.
If you were absent from your job for longer than 180 days, you are required to resubmit an employment application with your employer within 90 days or your return from service.
Will I lose my health insurance coverage from my job if I leave for military service?
No. Under USERRA, you can elect to continue your insurance for yourself and your dependents while you are on leave for up to 24 months (unless you do not return to work upon the end of your service), though you may need to pay a portion of the premium or the entire premium plus an administrative cost, depending on length of service.
If you have a question about your rights or obligations under USERRA, either as servicemember or as an employer, contact Michael Haeberle or Jordan Matyas.
ABOUT THE AUTHORS
Jordan Matyas – Clients benefit from Jordan’s more than two decades in government including working in the White House, the Legislature, and as a regulator for the State and most recently as the Chief of Staff at the Regional Transportation Authority. Jordan is also a registered State and City lobbyist, working with clients on government relations, legislation, policy, and other aspects of public affairs.
Michael Haeberle – Clients contact Mike when they need a litigator. He assists businesses and individuals in cases pending in court, arbitration and administrative agencies, and has tried cases before judges, juries, arbitrators, and administrative law judges, with a focus on business lawsuits, contract litigation, shareholder disputes (business divorces), and professional negligence cases.