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.