Military service brings a sense of honor, integrity and commitment to being an American citizen. Joining the military can be a big sacrifice, leaving family and friends behind. Deployments, for most service members, usually means giving up their civilian job for an extended period of time.
Veterans should not have to tolerate employment discrimination when they return home from active military duty, but it happens all too often among employers. There are laws in place that protect veterans against this illegal act. The attorneys at Swartz Swindler, LLC are here to help protect veterans’ rights.
What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act of 1994 is a federal law that was put in place to preserve the employment rights of military service members. The law prohibits employment discrimination against veterans and offers certain protections regarding reemployment. Specifically, it gives service members the right to be reinstated to their job with equal pay and benefits just as if they had never been on active duty. Similar to the Americans with Disabilities Act (ADA), USERRA also requires employers to make reasonable accommodations for veterans who have been disabled with a service-related injury, whether it be a physical accommodation or extra training.
Who does USERRA protect?
USERRA offers protection to a wide range of military personnel, including:
- The Army
- The Navy
- The Marine Corps
- The National Guard
- The Air Force
- The Coast Guard
- Certain disaster response work is considered service in the uniformed services under the Public Health Security and Bioterrorism Response Act of 2002
Who must comply with USERRA?
Virtually all U.S. employers must comply with USERRA, regardless of their size. It is important that employers familiarize themselves with the rules of USERRA. Sometimes, employers have no idea that they are discriminating against a veteran. But of course, that does not make veteran discrimination right.
What does USERRA protect?
When you leave your job to perform military service, USERRA requires that your employer rehire you upon your return in most cases. Of course, there are a few pre-conditions that must first be met in order to be be afforded the rights and protections of USERRA.
Before leaving for military service, USERRA requires that you give your employer advance notice of your military service either orally or in writing where reasonably possible. The only exception to this is if the military made it impossible for you to give out the information or if it was unreasonable to do so.
The cumulative nonexempt periods of uniformed services during your employment relationship with your employer must not exceed 5 years. Although, there are certain types of services that can be counted as an exception to the 5-year limit.
Once you have reached the conclusion of your military service, you must submit an application for reemployment within a timely manner. The time frame is based upon certain circumstances, but it can range from immediately to as long as 90 days. If you have suffered from a service-related illness or injury, however, the time frame can be extended to as long as 2 years.
If the pre-existing conditions have been met, the veteran should be reinstated as if the employment relationship had never been interrupted. For example, if all employees that have been with the company for 7 years get promoted to a higher position, it would be reasonable to believe that if you worked for the company for 6 1/2 years and were gone for 120 days due to military service, you would be promoted upon your return. This type of situation is also known as the “escalator position.” The escalator concept can be explained by getting off the escalator when you take your leave of absence. Upon your return, you skip getting back on where you left off, and instead, get back on where the escalator has ascended to. If you are not qualified for the promoted position, the employer must make reasonable accommodations to qualify you for the position.
Benefits and Seniority
The escalator principle also applies to benefits and seniority. A returning veteran should be entitled to all of the benefits and seniority that would be afforded if they had no leave of absence. A pay raise would be an example of a seniority based benefit. Typically, vacation time is considered a non-seniority based benefit. This means that you would not accrue vacation time during a leave of absence, unless your employer agrees to do so. USERRA also provides for employers to continue healthcare coverage while the employee is out on military leave.
Discharge from Employment
USERRA protects veterans from adverse employment actions. The majority of employees working in the private sector are at-will employees, which means they can be fired at any time for any reason, other than an unlawful reason (such as discrimination). An employer is prohibited from terminating an employee within 180 days after the employee is reinstated from military leave.
Penalties for Violation of USERRA
If you believe your Veterans’ rights have been violated under USERRA, then you may want to consider filing a complaint with the United States Department of Labor – Veterans Employment and Training Service (VETS). VETS will investigate the complaint and make a determination as to whether they feel the employer violated any laws. If they have determined a violation occurred, they will try to negotiate a resolution with the employer. It is important to know that VETS has no legal authority, but they often are able to resolve the issue without court action.
If you want to take legal action, the remedy is a federal lawsuit in United States District Court. There is no statute of limitations, so a complaint can be filed at any time. USERRA actions are complex legal cases that require extensive legal knowledge of laws and procedures. These federal cases are typically resolved in 18-24 months, making the process long, arduous and expensive. However, there are few cases that actually make it to trial because these cases are often settled with the help of an experienced lawyer.
In a federal case, the judge can order any of the following:
- Require that the employer reinstate the employee to their job position.
- Compensate the employee for lost wages due to the employers lack of compliance with USERRA.
- Award double the amount of lost wages and benefits if the discrimination was determined to be deliberate.
- Award attorney’s fees that were incurred with the lawsuit.
The attorneys at Swartz Swindler, LLC can help you navigate through all of the red tape and get the USERRA rights you are entitled to receive. Whether you have been denied reemployment or discriminated against because of your military service, we have the experience and skills to help you fight for your rights. Contact us today by filling out the online contact form.