USERRA – Protecting the Rights of our Uniformed Men and Women

Imagine coming back from a war zone, finally back on American soil and looking to get back to civilian life. You have a well-established job outside of your military occupation, so getting back to a normal work routine is something you almost look forward to after months of deployment. Only, when you notify your employer you’re back from duty and ready to resume your job — you find your position has been filled or eliminated or even worse, you were terminated. Your employer may have violated your rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA additionally forbids employers from discriminating against past and present members of the uniformed services, and applicants to any armed forces branch in America, including National Guard and reserves forces. An employer may not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment because of this status.

You have the right under USERRA to also be reemployed in your civilian job if you leave to perform service in the uniformed service and ensure that apt written or verbal notice is given to your employer, you have five (5) years or less of cumulative service in a U.S. military branch while employed with that particular employer, you return to work (or apply for reemployment) in a timely manner after conclusion of service and you have been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have obtained if you had not been absent due to military duty, or in some cases, a comparable job.

In 2011, in a decision that will likely impact thousands of veterans for generations to come, one of the nation’s highest courts has ruled in favor a highly decorated war hero by finding the U.S. Postal Service violated his rights under USERRA. The case, Erickson v. United States Postal Service, involves Army Special Forces (otherwise termed a Green Beret) Sergeant Major Richard Erickson. Erickson, who has been awarded multiple medals for Combat Distinguished Valor and is a Purple Heart recipient, was fired from the Postal Service for “excessive absence due to military service,” a blatant violation of federal law. Erickson began working for the USPS in 1988 and was at that point in the National Guard. Between the years of 1996 and 2000, SGM. Erickson only worked for about 4 days due to military commitments. In March of 2000, USPS fired him.

Erickson filed a Merit System Protections Board (MSPB; a judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure protection for federal employees against abuses by agency management) appeal under USERRA, asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career.

Since 2007, MSPB administrative judges have twice ruled on the case (in 2007 & 2012) and on January 3rd, 2014, a decision marked the Board’s third ruling (previously in 2008, 2010, and 2013). Two of those Board decisions were prompted by remands from the U.S. Court of Appeals for the Federal Circuit (in 2009 & again in 2011). The January 3rd decision denied the Postal Service’s appeal; the Board dismissed their argument that the highly decorated veteran should not be entitled to reinstatement as relief for the agency’s discriminatory firing of him because of his courageous military service. The Board noted that the Post Office was wrong in its interpretation of USERRA, and correctly provided full relief to Sergeant Major Richard Erickson.

In the latest victory for Erickson, the Post Office filed a petition for review (PFR) in January 2013 about a December 2012 Judge’s decision in Erickson’s favor. In the PFR, the Post Office opposed Sergeant Major Erickson’s reinstatement based upon a flawed interpretation of USERRA according to the final MSPB decision. The Board gave the Postal Service 20 days to reinstate Sergeant Major Erickson and 60 days to provide him with back pay and benefits, which is long overdue to right a wrong that occurred nearly 14 years ago. Damages & attorney’s fees could cost the Postal Service upwards of $1,000,000.

If you feel your USERRA rights were violated, there are several avenues to take to pursue a complaint. The U.S. Department of Labor Veterans Employment & Training Service (or VETS) is authorized to investigate and resolve complaints. If VETS is unable to resolve the complaint, you can request for your complaint to be referred to the Department of Justice or the Office of Special Counsel for representation. You may also bypass the VETS process and bring a civil action against an employer.

New Labor Rules Bring Overtime Pay To Millions Of Salaried Employees

Let’s say you’re an assistant manager at a fast-food restaurant making a salary of $35,000 per year. Your restaurant is drastically understaffed, and even though you work up to 20 hours of overtime per week, you don’t receive any additional compensation for the extra hours. Is this OK?

Somewhere between 4.5 and 12.5 million Americans find themselves in a similar situation every week. Under the current Fair Labor Standards Act, salaried workers making more than $23,660 per year are not eligible for overtime pay if their jobs include some traditionally “white collar” duties (such as restaurant management).

New rules announced on May 18 by the Department of Labor will change that. Starting December 1, 2016, salaried employees who make less than $47,476 per year will be eligible for time-and-a-half overtime pay when they work more than 40 hours in a week. The new rules also include a system that will automatically increase the salary threshold every three years, meaning that, in the future, even more employees will qualify for overtime pay.

To comply with the new regulations, your employer may choose to do one of three things:

  1. Your employer may begin paying you time-and-a-half for your overtime.
  2. Your employer may raise your salary above $47,476.
  3. Your employer may limit the amount of hours you can work to 40 hours per week, increasing the amount of time you have to spend with family or on additional training.

Importantly, if you currently earn regular bonuses or performance incentives, your employer may choose to use that money to satisfy up to 10 percent of your new overtime pay.

If you are a salaried employee and are not used to keeping track of your hours, you may have questions about how your wages will be paid after December 1. You should seek the advice of counsel to determine whether you are eligible for overtime pay, and when the time comes, whether your employer is compliant with the new rules.