Some employers do not hire, promote or retain employees who might miss work because of military service. Fortunately for those Servicemembers, there is a federal law known as the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301, et seq., which provides them with some protections.
Generally, USERRA, has three primary protections:
- Protection from Discrimination and Hostile Work Environment. “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” 38 U.S.C. § 4311(a). Benefits of employment include things such as health benefits, pensions, status, accounts, unemployment benefits, vacations and the opportunity to select work locations and hours of work. 38 U.S.C. § 4303(2).
- Reemployment Requirement After Military Service and the the “Escalator Rule.” A Servicemember who is absent from work due to uniformed service has a right to reemployment with the “rights, benefits, training, qualification and other employment benefits” required by USERRA. 38 U.S.C. § 4312. Additionally, under USERRA’s “escalator rule,” the Servicemember must be reemployed with any additional seniority, and other rights and benefits determined by seniority, which the Servicemember would have received but for the military service absence. 38 U.S.C. §§ 4313(a), 4316(a). Furthermore, the employer must make reasonable efforts to help the Servicemember become qualified to perform the duties of the reemployment position. 20 C.F.R. § 1002.198.
- Protection from Termination. In addition to the requirement to reemploy after an absence for military service, USERRA also provides Servicemembers with protections from discharge after reemployment. Specifically, USERRA temporarily modifies the typical “at will” employment status applicable to many Servicemembers, and allows termination of employment only “for cause.” 38 U.S.C. § 4316(c). The length of the “for cause” protection period depends on the duration of military service. For military service that exceeds 180 days, the Servicemember has a one year protection period after reemployment. 38 U.S.C. § 4316(c)(1). If the length of military service is more than 30 days, but less than 180 days, then the Servicemember is protected for 180 days. 38 U.S.C. § 4316(c)(2). USERRA does not alter the at will employment status when the absence for military service is 30 days or less. 38 U.S.C. § 4316(c).
Who Is Protected/What is Service in the Uniformed Services?
The phrase "service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under various Acts, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and certain other duties. 38 U.S.C. § 4316(13).
What Might Be Recovered in a Successful USERRA Claim?
A prevailing Servicemember in a USERRA case may recover lost wages, benefits, reinstatement and injunctive relief. 38 U.S.C. § 4323(d). USERRA also provides that liquidated damages in an amount equal to lost wages and benefits may be awarded for “willful” violations of the law by the employer. 38 U.S.C. § 4323(d)(1)(B) & (e). It is also possible to recover legal fees. 38 U.S.C. § 4323(h)(2).
This webpage should not be considered legal advice. Contact the Vaught Firm for a no cost initial consultation to learn more about the applicable law relative to your specific situation. The content of this page is based on federal law.