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.

RETURNING TO CIVILIAN LIFE: Protecting Service Men and Women through the USERRA

While military service is generally held in high regard in our country, it may surprise you to learn that many of our service members, specifically those who serve in a volunteer capacity, can be the targets of discrimination in the workplace based on the demands of their uniformed commitment. When service members hold civilian jobs, employers may look negatively on duty requirements that conflict with work, and may even subject members to harassment or termination because of these conflicts.

Fortunately, legislation exists that protects service men and women from this type of discrimination. The Uniformed Services Employment and Reemployment Rights Act, also known as USERRA, was created and signed into law in 1994, and amends and clarify the longstanding Veterans’ Reemployment Act. USERRA typically benefits non-full-time service members who have been called into active duty, training, or examination by the branch of the military, National Guard, or commissioned corps in which they serve. The two most prominent protections offered by USERRA are (1) reemployment rights and (2) rights against discrimination or retaliation.

Reemployment Rights

USERRA’s reemployment provisions allow for eligible members to be reemployed to their previous civilian positions if they left that position to perform service in the “uniformed service.” “Uniformed service” encompasses all branches of the military, the Coast Guard, and the Reserves of those respective branches. Additionally, members of the Air National Guard, the Army National Guard, and the Commissioned Corps of the Public Health Service are also included under the “uniformed service” umbrella.

These provisions offer more than merely reemployment with the employer a member previously worked for. The member must be reemployed to the same position he or she had, or could have attained, when deployed for active duty, and provided with all the benefits, seniority, status, and pay that the member was entitled to prior to deployment.

In order to receive reemployment protection, there are a number of eligibility requirements that a service member must meet, but generally, these include:

  • Advanced oral or written notice of deployment to your employer
  • Less than five years of cumulative service while with that employer
  • Timely returning to work at the conclusion of your service
  • Not being separated from your respected uniformed service through discharge under less than honorable conditions

In addition to reemployment rights, service members under the USERRA have the right to retain their health insurance under the employment-based health coverage plan in place at the time they are called into active duty for up to 24 months. Or, alternatively, those members can choose to resume their previous coverage if they discontinue coverage while deployed.

Anti-discrimination and Anti-retaliation Rights

USERRA also protects service members from discrimination by their employers when they are deployed or deployable. These protections are extremely broad, prohibiting employers from denying members initial employment, reemployment, promotions, or benefits based on a member’s status as a current or former service member, or any obligation of that member to serve. Furthermore, employers are also prohibited from terminating a service member for any of those same reasons, or for subjecting a member to a hostile work environment.

If a service member is subjected to any of the above forms of discrimination, and files a complaint regarding such discrimination, USERRA provides further protection by prohibiting his or her employer from retaliating against the member for pursuing that complaint. Retaliation often takes the form of termination, demotion, or denying a promotion to the member filing a complaint.

If an employer violates any of these provisions, a service member can seek USERRA enforcement by filing a complaint with the United States Department of Labor, Veterans Employment and Training Service, or through the court system. However, enforcement claims can involve very technical and complex issues of law and procedure. Your best bet is always to first seek guidance and counsel from an attorney experienced in USERRA compliance.