Uniformed Services Employment and Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act, also known by its acronym, USERRA, protects anyone serving in the armed forces or national guard or commissioned corps of the Public Health Services for taking a military leave of absence from work. In addition, in a time of war or national emergency the President of the United States can extend USERRA's protections to others. USERRA provides several protections including: prohibiting discrimination by employers; requiring companies to reemploy or return someone to a similar position upon returning from armed service with seniority as though the person had never left the company; and maintain benefits and health plans during the period of service. USERRA applies to private companies (including any companies they may own in foreign countries), state agencies and the Federal Government (although the rules for enforcement may be different.)
Discrimination and Retaliation Under USERRA
USERRA prohibits discrimination against anyone for serving in the armed forces or for taking military leave from a civilian job. This includes discrimination in hiring, promotion, reemployment, or any other benefit of employment. USERRA also prohibits retaliation against anyone who seeks to enforce their rights under USERRA or assists another in enforcing those rights (in which case it also protects people who have not served in the armed services.)
Reemployment Rights
In addition to prohibiting discrimination and retaliation, USERRA also requires companies to rehire or reemploy military personnel on return from military leave or duty whether active or inactive. In order to qualify for rehire under USERRA, the employee must give advance notice to the company before military leave or duty unless it is impossible or unreasonable to do so or he is prevented by military necessity from doing so. A person seeking reemployment under USERRA must seek reemployment very quickly. If the military leave was for less than 31 days, USERRA requiers you to report to the company the next workday after returning from service (allowing for 8 hours sleep and reasonable time to get home). If the military leave was for less than 181 days but more than 30, you have 14 days to reapply. If the military leave was for more than 180 days then you have 90 days to reapply. In the case of an injury or illness, USERRA gives up to two years (and in some cases longer) to recover before reapplying for the job. A person who fails to report or reapply for employment or reemployment after military leave within the appropriate time period does not automatically forfeit his entitlement to USERRA rights and benefits – the company must still apply its general disciplinary policies even if an employee returning from military leave does not meet these deadlines. For example, if a company has a progressive discipline policy which provides that its employees get a written warning after the second absence and are not terminated until the third, an employee returning from military leave may still be permitted to return to work even if reapplication is two days late.
There are two exceptions. One is that generally the combined time away from the job for military leaves of absence will not be protected by USERRA if it exceeds 5 years. The second is if the company can prove that it is impossible, unreasonable or would otherwise cause an undue hardship for it to rehire the employee or that the job was intended to be a short one in the first instance.
Seniority and Benefits Under USERRA
A person returning to work after a military leave under USERRA is entitled to the same seniority and job as though he never left employment. In other words, seniority accrues even while the employee is in the military service. There is an exception if the employee is not qualified for the job or is unable to handle it because of injury. Where the employee is not qualified for the position for which he should have the seniority, USERRA requires the company to make reasonable efforts to train or otherwise assist the employee in gaining the necessary qualifications for the position. If this is not possible, USERRA requires the company to rehire him in the nearest approximate position for which he is or can become qualified. USERRA also requires a company to make reasonable efforts to accommodate any disability or injury which occurred or was aggravated while on that military leave.
In addition to the job, USERRA entitles a person returning from military leave to any benefits of seniority as though he had not left the company for military service. This includes medical and pension benefits which the company must continue to provide while the employee is on military leavey, although the employee is still required to pay any portion which he would have had to pay if still employed – USERRA does not give an employee any rights he would not otherwise have had if he did not take the military leave of absence.
For Cause Termination
Normally, employment is at will. This means that you can quit or be fired at any time for any reason other than an illegal one. But USERRA changes this. In the case of an employee returning from a military leave of absence of more than 30 days USERRA prohibits a company form firing him without cause within the first 180 days of returning to work, and if the military leave was for more than 180 days, USERRA prohibits firing him without cause for a year after returning to work.
Enforcement of USERRA Rights
If a company violates USERRA the employee can either file a claim with the Secretary of Defense, or by filing an independent USERRA lawsuit with a military lawyer or private lawyer in court. If a USERRA claim is filed with the Secretary of Defense and the Secretary is unable to assist in securing USERRA rights, the employee can request that the Secretary refer his case to the Attorney General to file a USSERA lawsuit or hire a military lawyer or private lawyer to do so. He can even hire a private lawyer if the Attorney General refuses to file the USERRA lawsuit.
If the employee files a USERRA lawsuit, a court can do a number of things including: forcing the company to comply with USERRA; compensate the employee for lost wages or benefits for failing to comply with USERRA; and even require the company to pay double the amount of lost wages and benefits if it determines that the company's violation of USERRA was willful. In addition, the employee is entitled to recover any attorney's fees and costs associated with the USERRA lawsuit. The reverse is not true. If the employee should lose a USERRA lawsuit, he CANNOT be required to pay any of the attorney's fees or costs incurred by the employer.
There is no statute of limitations on a USERRA claim. The USERRA lawsuit can be filed at any time to recover lost wages or benefits. However, filing the USERRA lawsuit late can impact the other kinds of relief a court can award. For example, a court may not be able to require a company to rehire someone as his is right under USERRA if the employee brings the suit years after the military leave.
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. If you have questions about your USERRA rights you should call an employment lawyer.
People who serve in the military honor their country. They should not come home from a military leave of absence to find that they have no job or that their seniority has been taken from them. The lawyers at Maduff & Maduff are employment lawyers. If you have had problems returning to your job after a military leave of absence call us. If you are not being given seniority which should have accrued while you were serving in the military or are denied benefits by your employer, we can help. Because of the importance of military service to our country, Maduff & Maduff is always looking to help people enforce their USERRA rights. Give us a call.
| 
