Over one million service members have returned from service in Iraq or Afghanistan. Many of them have come home to find that they are no longer employed. In fact, the unemployment rate for veterans is nearly twice as high as it is for non-service members. Congress enacted the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) in response to this issue. USERRA protects the employment and reemployment rights of all uniformed service members. It also prohibits employers from discriminating against service members.
The Law Firm of Randolph H. Wolf is dedicated to protecting the rights of military members whose employment has suffered due to service in the military. We have represented the interests of service men and women serving at Fort Monmouth, Fort Dix, the McGuire Air Force Base, and the Naval Weapons Station Earle since 1986 and are proud to represent service members as they return from tours of duty overseas.
Who Does USERRA Apply To?
USERRA protects members of the “uniformed services,” which includes members of the Armed Forces, the Army and Air National Guards, and any other category of person designated by the President in time of war or national emergency. These individuals are entitled to USERRA rights, regardless of whether their service is involuntary or voluntary.
Unlike many other statutes protecting employment rights, USERRA applies to all public (state and federal) and private employers, regardless of size.
What Does USERRA Protect?
USERRA protects the reemployment rights of service members, the employment rights and benefits of service members, and the right of service members to be free from discrimination in employment.
Re-employment Rights
Upon return from deployment, USERRA provides that members of the uniformed services have the right to be re-employed in their civilian jobs. In order to qualify for re-employment, service members must meet each the following eligibility requirements:
- Provide employers with advance notice of military service; Notice may be written or verbal. The employee himself need not provide notice. An appropriate military officer may provide notice on behalf of an employee. An employee is not required to provide advance notice if: (i) notice is precluded by military necessity; or (ii) the giving of notice is impossible or unreasonable. An employee need not tell its employer before leaving whether or not he plans to seek reemployment. An employee does not need the employer’s permission before leaving for service and need not accommodate the employer’s needs regarding timing, frequency, or duration of service.
- Not exceed more than five years of cumulative service in the uniformed services while with that particular employer;
There are, however, many exceptions to the five-year requirement. For example, many types of service are not counted toward this five-year period, including required training for Reservists and National Guard members, service in the Global War on Terror, and service in parts of Operation Iraqi Freedom. - Return to work or apply for reemployment in a timely manner after conclusion of service; and Time limits for returning to work depend on the duration of the person’s military service. If the period of service last between 1 and 31 days, then the service member must report back to work immediately. If the period of service lasted between 31 and 180 days, then the service member has 14 days to submit an application for reemployment. If the service period lasted for more than 181 days, then the service member has 90 days to submit an application for reemployment.
- Not have been separated from service with a disqualifying service. Disqualifying services include separation from the service with a dishonorable or bad conduct discharge and separation from the service under other than honorable conditions.
Employers may raise the following affirmative defenses to reemployment:
- Circumstances have changed so much that reemployment would be impossible or unreasonable; For example, if the employer can prove that there has been a reduction in workforce, which would have included the service member if the individual had not been absent for purposes of uniform service, then reemployment is not required.
- If a service member returns from service disabled and unable to perform the duties of the position, employers are required to find a position within their company that the service member can perform. If there are no positions available for the disabled service member, however, the employer is not required to create a position for the employee.
- The individual’s pre-service employment was brief or non-recurrent; and
- Accommodating the employee would impose an undue hardship on the employer.
Entitlements During Service
Rights & Benefits During Period of Service: An employee serving in uniformed service is deemed to be on furlough or leave of absence. Two classes of rights and benefits are relevant:
(1) Those determined by seniority: If a service member is reemployed, he is entitled to the rights and benefits determined by seniority that the employee would have attained, had he not left for service.
(2) Those not determined by seniority. With regard to rights and benefits not determined by seniority (i.e., accrual of vacation time), the employee is only entitled to what the employer provides to employees having similar seniority, status, and pay and who are on furlough or leave of absence.
Health Insurance Benefits: If a service member leaves their job to perform military service, they can elect to continue their existing employer-based health plan coverage for the service member and their dependents for up to 24 months while in the military. Even if a service member does not elect to continue coverage during their military service, they have the right to be reinstated in their employer’s health plan while they are reemployed, generally without any waiting periods or exclusions, except for service-connected illness or injuries.
Discrimination & Retaliation
Employers may not discriminate against past and present members of the uniformed services as well as applicants to the uniformed services. The ban is broad, extending to most areas of employment. Prohibited actions include denial of:
- Initial employment;
- Promotion;
- Reemployment;
- Retention; and
- Any benefit of employment (such as vacation accrual, bonuses, etc.)
The individual claiming a violation has the burden of proving that a USERRA-protected status was a motivating factor in the employer’s adverse employment action against that individual. Once a prohibited motive is established, the burden then shifts to the employer to prove, as an affirmative defense, that they would have taken the same action, regardless of the individual’s protected status.
Employers may also not retaliate against anyone who:
- Files a complaint under USERRA;
- Testifies, assists or otherwise participates in an investigation or proceeding under USERRA; or
- Exercises any right provided pursuant to USERRA.
How To Enforce Your Rights Under USERRA
The Law Firm of Randolph H. Wolf can represent you in a suit against your employer, seeking any of the following remedies:
- Reinstatement
- Back pay
- Lost benefits
- Corrected personnel files
- Lost promotional opportunities
- Retroactive seniority
- Pension adjustments
- Restored vacation
- Double damages where violations are willful
- Attorneys fees
You should also be aware that you may proceed without an attorney and file a complaint through Employer Support of the Guard and Reserve (ESGR) or the Department of Labor Veterans’ Employment and Training Service (DOL VETS). However, if you do not file a civil lawsuit, you are not entitled to double recovery or attorneys fees.
If you have any questions about your rights under USERRA, please call us at (732)741-4448 to schedule a consultation.