The
Uniformed Services Employment and Reemployment Rights Act (USERRA) protects those returning from service in the uniformed services, including those called up from the Reserves or National Guard, and prohibits employer discrimination based on time in the military.
Federal courts have consistently held that USERRA, like other statutory means of protecting service members, is to be liberally construed in favor of those who drop their personal affairs and leave their jobs to answer their nation’s call. No longer are the National Guard and the Reserves a strategic reserve. Rather, the current defense doctrine calls for them to remain a part of the operational forces. In a time of continued heavy reliance on the National Guard and the Reserve, USERRA is more relevant and critical to service members and the nation’s defense structure than ever before.
What is USERRA’s purpose?
Congress, in passing USERRA in 1994, stated it was intended to:
- Encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers that can result from such service
- Minimize disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt re-employment of such persons upon their completion of such service
- Prohibit discrimination against persons because of their service in the uniformed services
What does USERRA require of employers?
To accomplish its purpose, USERRA:
- Prohibits discrimination and retaliation based on military service
- Allows the use of paid time off held by the employee
- Guarantees continued health insurance coverage while a service member is on leave and re-employment upon his or her return
- Requires that seniority and pension benefits be preserved when a service member is re-employed
- Prohibits discharge without cause for specific periods of time after a service member’s return from service
Which employers are covered?
USERRA applies to all employers incorporated or otherwise organized in the United States and all employers controlled by entities organized in the United States, including foreign employers (unless a foreign employer’s compliance with USERRA would violate the laws applicable in its foreign workplace). It also applies to U.S. operations of foreign employers. It applies regardless of the size of the employer’s workforce.
Who is protected?
USERRA applies to all U.S. citizens, nationals, or permanent resident aliens who are employed in the United States or in a foreign country by a U.S. employer. It applies regardless of how long an employee has been working with an employer. The act protects covered employees on leave in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, and Coast Guard and their reserve components, the Army and Air National Guards, and the commissioned corps of the Public Health Service.
Protection is afforded to employees who report for active duty, active duty training, initial active duty for training, inactive duty training, full-time National Guard duty, and/or absence to determine fitness to perform service. The employee’s service must be “honorable” to enjoy protection under USERRA.
When is a claim timely?
USERRA, enacted in 1994, was not provided a separate statute of limitations. Until the 2008 amendment, 28 U.S.C. §1658(a)’s four-year statute of limitations applied. USERRA was amended in 2008 by the Veterans’ Benefits Improvement Act (VBIA), which determined there shall be no limit on the period for filing a complaint or claim. This amendment does not apply retroactively.
How do employees assert USERRA’s protections?
In order to take advantage of USERRA’s protections, employees must give prior notice of military service to their civilian employer. Written notice is not required, but it is strongly recommended. Additionally, in order to be protected by USERRA, the employee’s period of military service cannot exceed five cumulative years. Military service during wartime, a period of national emergency declared by the President, or periodic and special Reserve/National Guard training do not count toward the five-year calculation. The five-year clock restarts when a service member changes civilian employers.
How is USERRA enforced?
The U.S. Department of Labor, Veterans’ Employment and Training Service, (DOL-VETS) is responsible for the implementation, administration, and enforcement of USERRA. Individuals who believe their USERRA rights have been violated may file a complaint with DOL-VETS. As part of the complaint process, a DOL-VETS investigator will collect and review evidence and conduct witness interviews necessary to resolve the complaint. If the claimant is dissatisfied with the outcome of the claim, he or she may request referral of the matter to the U.S. Department of Justice (DOJ) for further review and possible representation. It is important to note, however, that DOJ may decline referral and representation if the individual has retained private counsel or received assistance from an attorney in attempting to resolve his or her USERRA claim.
What are some recent judicial and administrative decisions involving USERRA rights?
Inferences of hostility to military service: The U.S. Supreme Court, in an 8-0 opinion, denied judgment for the employer where there was evidence that the human resources vice president relied on accusations of immediate supervisors to discharge the employee and there was evidence the supervisors were motivated by hostility toward the employee’s military obligations, thereby upholding a “cat’s paw” discrimination claim.
Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). Visit the
U.S. Supreme Court website to view the entire opinion.
Promotion and seniority issues: Police Officer Brian Benvie, an Army Reservist who served on deployments to Kosovo, Iraq, and Kuwait, missed taking promotion exams for sergeant and lieutenant due to active military duty. When he eventually took the exam, he found others were promoted ahead of him even though he scored better. His matter was referred to the Justice Department, which secured a settlement that included $32,000 in back pay, a promotion, and retroactive seniority.
Seniority and retaliation: After returning from deployment, Army Reservist Theresa Slater returned to her job as a security officer in Missouri. Upon her return, however, she discovered that her employer had changed her status to that of a new employee, which cost her 13 years of seniority and required her to retake company training courses. After Slater filed a USERRA complaint to regain her lost seniority, she was terminated for a minor infraction of company policy. She amended her complaint to include retaliation. In arbitration, Slater received her original job back with her seniority restored and more than $20,000 in back pay.
Re-employment, promotional, and retirement issues: While a claimant was deployed in Iraq, the Highland Park (Mich.) Fire Department promoted three firefighters with less seniority and refused to promote the claimant upon his return. In a settlement, the claimant’s wages and benefits were adjusted from the time of the promotion to the date of his return to work.
In another case, the Justice Department settled with United Airlines, which had made pension contributions at a minimum level during a claimant’s deployment instead of, as USERRA requires, “in the same manner and to the same extent the allocation occurs for other employees during the period of service.” Under the terms of the settlement, the claimant was fully compensated for all deficient pension payments, plus any associated earnings.