Military Service Discrimination: What Servicemembers and Their Families Should Know About USERRA

Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) so that veterans and applicants for service would suffer no detriment with reference to their service by having left their jobs. The USERRA also provides for reemployment rights. However, if the employee's service terminates with a dishonorable or bad conduct discharge, or under other than honorable conditions, the employee is not entitled to the protections of the USERRA. 

Prohibited Discrimination

The USERRA defines "employee" as "a person employed by an employer." Consequently, practically every employer must comply with this federal law.

If a person is:

1. A member of;

2. Applies to be a member of;

3. Performs;

4. Has performed;

5. Applies to perform; or

6. Has an obligation to perform service in the uniformed services,

then he or she cannot be denied:

a. Initial employment;

b. Reemployment;

c. Retention in employment;

d. Promotion; or

e. Any benefit of employment

by an employer on the basis of any of the statuses in the first list (1-6).

"Uniformed services" include the Army, Navy, Marine Corps, Air Force, Coast Guard, Army National Guard, Air National Guard, and other groups designated by the President in time of war or an emergency. The performed military services can be either voluntary or involuntary, including active duty, training for active duty, drills, inactive duty training, and fitness testing.

An employer violates the USERRA if the employee's membership in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership. The employee bears the initial burden of coming forward with admissible evidence from which the judge or jury could reasonably conclude that military status was a motivating factor in the employer's challenged adverse employment decision. If the employee meets this burden, the burden then shifts to the employer to prove the affirmative defense that legitimate reasons, standing alone, would have induced the employer to take the same adverse action.

Reemployment Rights

Generally, an employee is entitled to reemployment if:

1.     Advance written or verbal notice of service was given to the employer;

2.     The cumulative length of the absence and all previous absences from a position of employment with that employer due to service does not exceed five years; and

3.     The employee reports to, or submits an application for reemployment to, the employer in accordance with certain provisions of the USERRA.

An employee who fails to report or apply for reemployment in accordance with the USERRA does not forfeit his or her reemployment rights. However, the employee does become subject to the employer's rules, policies, and practices pertaining to discipline with respect to absence from scheduled work.

However, an employer is not required to reemploy the servicemember where:

1.     The employer's circumstances have changed to the point that reemployment is impossible or unreasonable;

2.     In the case of an individual with a disability, reemployment would impose an undue hardship on the employer; or

3.     The job that the individual left for service was "for a brief, nonrecurrent period" (i.e., temporary) and there is no reasonable expectation that the job will continue indefinitely or for a significant period.

Benefits

Upon reemployment, the employee is entitled to seniority and other rights and benefits as if he or she had never left work. The employee is deemed to be on furlough or leave of absence while serving.

An employee has the right to continue his or her existing employer-based health insurance plan for themselves and their dependents for up to 24 months while serving.

Anti-retaliation

The USERRA includes an anti-retaliation provision prohibiting employers from taking adverse action against any person exercising his or her USERRA rights or participating in any proceeding or investigation related to a USERRA complaint.

The USERRA is a seemingly simple and straightforward law, but it includes several caveats concerning health insurance continuation, pension benefit plans, and enforcement. If you believe your employer or former employer violated the USERRA and you need help understanding the enforcement process, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.