Uniformed Services Employment and Reemployment Rights Act (USERRA)

The lawyers at Tully Rinckey know what it means to serve. In fact, a number of our attorneys, including both the Founding and Managing Partners, are veterans of the United States Military. This gives our firm a unique perspective on the importance of military service to our country. Because of this outlook, we are continually striving to help people enforce the rights afforded to them by reason of their military service, whatever their civilian careers might be.

Service members with civilian careers who are called to active duty serve and protect our country. They should not suffer adverse employment consequences because of their service.  In particular, they should not come home from military duty to find they have no job or that they have been denied the benefits of employment they would have earned had they not been called to service.

The Uniformed Services Employment and Reemployment Rights Act prohibits employment discrimination because of membership in a uniformed service, the performance of military service or the obligation to perform such service.  The statute includes protection against discrimination in hiring, promotion, reemployment, or any other benefit of employment, including seniority. USERRA also prohibits retaliation against those who seek to enforce their rights under USERRA or assists another in enforcing those rights.

Who USERRA Protects:

• Armed Forces
• Reserve or National Guard (including inactive duty training)
• Commissioned corps of the Public Health Services
• Other categories of service designated by the President time of war or national emergency

Who USERRA Applies to:

1. Private Companies
2. The Federal government
3.  State and local governments

What USERRA protects:
Reemployment Rights
In addition to prohibiting discrimination, as mentioned above, USERRA also generally requires companies to reemploy military personnel on return from military duty, whether active or inactive.  In order to qualify for rehire under USERRA, the employee must give advance notice of his or her service obligation to the employer unless precluded from doing so by military necessity or it is otherwise impossible or unreasonable to do so.  Moreover, upon the conclusion of his or her military obligation, the employee must submit an application for reemployment.  Depending on the circumstances, a returning service member may have to give such notice almost immediately (if the period of service was less than 31 days) or he or she may have as long as two years to do so (in some cases of service-connected illness or injury).  There is also a limit on cumulative military service of five years, although there are many periods of service that do not count against the five-year total.  

In general, if these procedural required are followed, the employee is entitled, at the least, to get his or her old job back, or a position of like seniority, status and pay.  In some cases, the employee may be entitled to the job he or she would have held had employment been continuous and not been interrupted due to military duty (for example, a promotion that would have been reasonably certain to occur if the employee had stayed at worked instead of leaving for uniformed service).  This is known as the escalator position.  The service member gets off the escalator when he goes into service, but when returning, he or she does not get back on the escalator where it was upon departure, but rather where that position on the escalator has advanced as of the time of return.

Seniority and Benefits
The escalator principle also applies to seniority and benefits.  A returning veteran is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of commencement of military service plus the additional seniority and rights and benefits that the person would have attained if he or she had remained continuously employed.  There are also provisions concerning the right to continue using the employer’s health care coverage while on military duty as well as the protection of employee pension benefits.

Termination of Employment
Many workers in the private sector are employees at will, meaning that they can be fired at any time for any reason other than an unlawful one (for example race discrimination) or for no reason at all.  However, USERRA provides some protection against at will terminations. Depending on the length of time which an employee was absent due to military leave, the company is prohibited from terminating employment, except for cause, for a period of either 180 days or one year after the return to work.  For Federal employees, there are also some protections from job loss due to reductions in force.

How to Enforce Your Rights under USERRA
If a service member believes his or her USERRA rights have been violated, he or she may, but is not required to, file a complaint with the United States Department or labor – Veterans Employment and Training Service (DOL-VETS).  DOL-VETS will analyze the complaint, determine if a violation of USERRA has occurred and, if it has, try to negotiate a resolution of the situation with the employer.  However, if it is unable to negotiate a resolution, DOL-VETS has no enforcement authority.  It must either turn the matter over the Office of Special Counsel in the case of the Federal government or otherwise to the United State Attorney General.  These officials typically will decline to pursue the matter, in which case the service member will be informed that he or she may action against the employer, either with or without an attorney.  For Federal employees, this involves filing an appeal with the Merit Systems Protection Board.  For private employees, the remedy is a lawsuit, generally in United States District Court.  Both of these proceedings are technically complex and skilled, experienced counsel can provide invaluable assistance in such circumstances.

Timeline of USERRA lawsuits
There is no statute of limitations on a USERRA claim.  It can be filed at any time.  However, it is  important not to delay filing unduly.  Such delay can impact the type of relief the judge is willing to award.  For example, in the case of a service member who has lost his or her job, a judge may not be willing to require a company to reinstate the service member if he or she has waited years to file a complaint.  If the employer can convince the judge that the delay has prejudiced it, for example due to the death or relocation of witnesses, the judge may dismiss the claim entirely.

 
What remedies are available under USERRA
Once a Federal court complaint or MSPB appeal has been filed, the Judge can do a number of things, including:

• Require the employer to comply with USERRA, which may include reinstatement to employment
• Compensate the employee for lost wages or benefits suffered by reason of the employer’s for failure to comply with USERRA
• In a case involving a private sector employer, require the company to pay double the amount of lost wages and benefits if the violation of USERRA is determined to have been willful
• Award a successful employee attorney’s fees and costs associated with the lawsuit.  However, no fees or court costs can be awarded against the service member, meaning that even if he or she loses, the employer is not entitled to attorney’s fees or costs.

This description is not intended to be a complete explanation of USERRA, but only to provide an overview. USERRA provides many protections not completely discussed here. Each situation is unique and there are many rules and exceptions under USERRA.  It is important for us to gain a full understanding of your personal circumstances in order to advise you on further steps and how the Act will protect you.

If you have questions about your USERRA rights you should call us at 202-787-1900 to schedule a consultation with one of our attorneys.