What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination in the workplace based on a person’s intention to join the uniformed services, current service in the armed forces, or former service in the uniformed services. Retaliation by an employer against an employee who attempts to uphold their own or others’ rights under the Act
is also forbidden. USERRA grants reemployment rights with the employer after service-related leave. In general, the armed services employee has the right to be rehired with the same seniority, status, and wage as if they had been working continuously throughout the time. Unfortunately, USERRA does not mandate that employees receive compensation for their time off for military service. In other words, USERRA provides job protection for service members to take leave, but by default that leave is unpaid. There is one exception: courts have determined that USERRA mandates that employers pay workers for military leave if the leave closely matches other types of leave for which workers are compensated. If, for example, your company provides unlimited PTO for all leaves of absence except military service leave, you may be entitled to recover pay for your military service leave under USERRA. This is because USERRA prohibits treating service members less favorably than other employees.
What are my rights under USERRA?
You and your civilian employer both have responsibilities to address upon your return to work. If your military obligation is the reason you are absent from civilian employment, you should be eligible for reemployment if:
- You gave your employer at least 30 days notice prior to your military service;
- You are not away from work for more than 5 years with certain exceptions; and
- You were not separated from the military with less than honorable conditions.
When you return to work you should be treated as though you had not been away for military service. In this sense, USERRA leave functions similarly to FMLA leave.
What qualifies as a USERRA violation?
You likely have a USERRA claim when you face any form of employment discrimination on the basis of military service. USERRA prohibits employment discrimination on the basis of military service or obligation. It also serves to protect uniformed service members’ reemployment rights when returning from a period of service. USERRA is partially administered through the U.S. Department of Labor (DOL) Veterans’ Employment and Training Service (VETS), but private attorneys can and do assist servicemembers and veterans with filing claims when their employers violate their USERRA rights.
What happens if your boss violates your USERRA rights?
If you feel like your rights have been violated under USERRA, you should contact legal counsel. We understand that returning to civilian work after deployment or mobilization can be a stressful process. The USERRA attorneys at Kaplan Law Firm are ready to help.
What Military Leave does USERRA cover?
USERRA applies to both voluntary and involuntary service, across both peacetime and times of war, and covers almost all civilian employers, including the federal government, state and local governments, and private employers of all sizes. In other words, unlike Title VII and many other employment discrimination statutes, USERRA applies to employers with less than 15 employees. Your civilian employer must grant your service leave and return you from it as though you never left the job. Upon your return from deployment or mobilization, you are entitled to the same benefits, seniority, status, and pay as other coworkers who did not take leave.
What does USERRA discrimination look like?
Common types of USERRA employment discrimination include: not being fairly considered for a job because you may have military obligation, your military duties conflict with the job’s working hours, or because you may be deployed for extended periods of time. For example, some Texas employers talk up hiring veterans but dock veterans’ pay, cut their rates, and
re-assign their best commission-earning clients when the time comes for deployment. Some Texas employers will fire or layoff veterans simply to avoid the scheduling and backfilling required to cover for leave. These are some examples of likely USERRA violations.
I returned from deployment, what next?
When the time comes to return to your civilian job, make sure you know your reemployment rights. Under USERRA, your employment rights are generally protected while performing military service. This statute helps service members retain their employment and benefits as they come back from deployment, and it ensures that service members are not discriminated against or otherwise disadvantaged on the basis of their military service. You are eligible for USERRA if your reasons for leaving civilian employment are related to service in the uniformed services, whether it was voluntary or involuntary.
How do I submit an application for reemployment?
For service under 31 days: The service member must return at the beginning of the next regularly scheduled work period on the first full day after being discharged from the service. Your civilian employer must take into account safe travel home plus an eight-hour rest period.
For service greater than 30 days but less than 181 days: the service member must submit an application for reemployment within two weeks of release from service. If you were gone for more than 180 days then your application for reemployment should be submitted within 90 days.
Although this application for reemployment does not need to be in any particular format, the Department of Defense (DOD) recommends that it be in writing to best protect all parties
involved should a dispute arise or if your civilian employer requests verification (§ 1002.85). Your application should indicate the following:
- You are returning from military duty.
- You are seeking reemployment.
Additionally, your civilian employer must promptly reemploy you upon your return from a period of service, assuming that you meet USERRA’s eligibility requirements. Under most circumstances, reemployment should occur within two weeks of your application for reemployment.