Federal law protects the employment rights of individuals who serve in the military. The law is called the Uniformed Services Employment and Reemployment Rights Act, or “USERRA.”
What Rights Does USERRA Protect?
USERRA protects the rights of anyone who serves, or applies to serve, voluntarily or involuntarily in the armed forces, national guard, or another capacity. It prohibits employers from discriminating against people who serve by denying them employment, reemployment, retention in employment, promotion, or any other benefit of employment. USERRA also prohibits employers from retaliating against service members for seeking to protect these rights or participating in an investigation involving these rights.
USERRA does not apply to service members who were discharged dishonorably or have certain other special circumstances.
Which Employers Are Subject to USERRA?
USERRA applies to all employers, whether private or government (federal, state, and local). Unlike most other anti-discrimination laws, private employers do not have to employ a minimum number of employees to be covered–it applies to all employers.
What Is Required for Reemployment under USERRA?
Employers must reemploy an individual after military service by restoring the individual to the job and benefits he or she would have attained if he or she had not been absent. In some cases, the employer may restore the service member to a comparable job.
To be entitled to reemployment, a service member must:
- Give advance written or verbal notice of service if possible and reasonable;
- Have five years or less of cumulative service while with the particular employer;
- Report back to work or apply for reemployment in a timely manner:
- If less than 31 days of service: report back on the first full regularly scheduled work period on the first full day after release from service, taking into account safe travel home and an eight-hour rest period;
- If 31-180 days of service: submit an application for reemployment within 14 days of release from service;
- If 181+ days of service: submit an application for reemployment within 90 days of release from service;
An employer does not have to reemploy a service member if it can that show doing so would be impossible or unreasonable or impose an undue hardship on the employer, or if the employment was for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
An employer that rehires a service member cannot discharge the individual, except for cause, for one year if the person served for more than 180 days; if the person served from 31-180 days, an employer cannot discharge the service member for 180 days.
What Can I Do if My Employer Discriminates Against Me Based on Military Service?
Service members have the option of filing a complaint with the Department of Labor, or they can hire a private attorney to file a lawsuit against the employer. There is no requirement to file a complaint with the Department of Labor first, and there is no specific statute of limitations, although some courts have ruled that service members must file a lawsuit within 4 years of the violation.
What Remedies Are Available?
If a service member wins a lawsuit, a court may award:
- Reinstatement to a position;
- Lost wages and benefits;
- Liquidated damages (double lost wages/benefits) if the violation was willful; and
- Attorney’s fees and costs.
USERRA is a complex law that contains many details and exceptions. You can read more about it here or contact me if you have questions.
Applicable law: 38 U.S.C. 43