Protecting Your Employment Rights

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the rights of service people to reclaim their job after being absent for military service or training, and gives them the right to be reinstated with pay and status equal to where they would have been if they had not been on active duty. It also prohibits discrimination against veterans and those on active duty in the armed forces, including the reserves and the National Guard. And it protects service people who have been gone from the job for more than 180 days from being fired within the first year (except for cause). USERRA violations may be enforced through a claim to the Veterans’ Employment and Training Service (VETS), or by directly filing a claim in court. However, you cannot pursue both paths at the same time. You should consult an attorney before making a decision to pursue a claim through VETS. Our lawyers at NachtLaw can help you cut through the red tape and gain the USERRA rights you are entitled to receive. Whether you have been denied reemployment or discriminated against because of your service to the country, we have the skills and experience to fight for your rights in court. In some workplaces, returning veterans, guard members and reservists have found their jobs substantially changed and they have been effectively demoted. Regardless of whether this was done because of employer ignorance or through willful misconduct, it is illegal and unfair. USERRA entitles the employee to the same benefits, wages, promotions, bonuses and other treatment the employee would have received had they not taken leave for active duty.

Who Is Eligible For Protection?

USERRA covers nearly all employees, including part-time and probationary employees. It also applies to virtually all U.S. employers, regardless of size. To qualify for protection, you must have:

• Been absent from employment due to active service in a uniformed service for more than 30 days
• Given advance oral or written notice of service to your employer unless advance notice was impossible or unreasonable
• The combined length of the nonexempt periods of uniformed service during your employment relationship with your employer has not exceeded five years
• After completion of service that caused your absence, timely reported to your employer or applied for reemployment, OR if you failed to give a timely report such failure would not result in termination under the employer’s rules governing unexcused absences
• Not been separated from the service under dishonorable conditions

How Does USERRA Work? What Does It Protect?

There are three general areas of protections under USERRA. These are:

1. Job placement and the escalator principle. Those who are eligible are generally entitled to placement in the “escalator” position, which is the position that the employee would have attained with reasonable certainty had he or she not been away for military service. Nonetheless, other factors can affect determination of the reemployment position, such as the length of service, the employee’s qualifications and whether the employee has a disability incurred in or aggravated during military service.
2. Conversion to just cause employment. Those who are reemployed after returning from a period of military service lasting more than 30 days are protected from discharge without just cause. The protection is for one year after the date of reemployment for employees returning from a period of military service of 181 or more days. For employees returning from military service that lasted 31 to 180 days, the protection is for six months after the date of reemployment. IF you are fired after returning from a period of service lasting 30 or fewer days, you cannot challenge the discharge. However, that would not foreclose you from bringing a discriminatory discharge or retaliatory discharge claim. In one recent appeals court decision, a court found that forcing a returning vet to go through a generally applicable reemployment process violated USERRA because the law provides an absolute duty to reemploy, and the employer — even a police agency — could not impose other fitness for duty requirements.
3. Anti-discrimination. USERRA prohibits discrimination against a person on the basis of past military service, current military obligations or an intent to serve. That means failure to promote into positions of responsibility or denial of other benefits because your status also violates USERRA, whether it happens before or even long after your period of active duty.

In addition, employers are specifically forbidden from:

• Characterizing an employee as “terminated” if he or she left for uniformed military service
• Forcing the employee to use accrued vacation leave, personal leave or similar leave time during the employee’s absence for uniformed military service
• Denying continuation of medical coverage, if originally provided by such employer, overcharging premiums or subjecting reemployed employees to waiting periods and exclusions to health care

What Penalties Does USERRA Provide For?

Under USERRA, the court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for “willful” violations. The courts are provided broad equitable powers to order compensation for whatever was lost as a result of the violation. If you have been discriminated against or denied benefits because of your military service, the attorneys at NachtLaw can help. Contact us today to schedule a confidential consultation.