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USERRA is short for the Uniform Services Employment and Reemployment Rights Act of 1994. It is a federal statute aimed at protecting the employment rights for servicemembers and veterans. If you qualify for USERRA protection, you are protected against employment discrimination based on uniform service and have the right to be rehired at your previous civilian job after you return from service if certain conditions are met.
An individual qualifies for USERRA protection if they served in a branch of the “Uniform Services.” The following branches qualify under USERRA:
Additionally, the “service” an individual performs is not limited to active-duty services. “Service” that qualifies for USERRA protection extends to active duty, active duty for training, active duty for special work, weekend or weekday drills, funeral honors, and fitness for duty or any other required exam.
USERRA protects servicemembers and veterans against discrimination and guarantees reemployment at an individual’s previous civilian job at the end of their service if certain conditions have been met.
USERRA also protects servicemembers and veterans against discrimination in the workplace. This protection extends to individuals seeking employment and to individuals already employed. Under USERRA, an employer cannot discriminate against an individual based on past, current, or prospective service in the Uniform Services.
USERRA also provides reemployment protection. Under the statute, an employer is required to reemploy an individual when they return from military service leave. Reemployment will look different for each individual depending on factors like the length of the absence, what positions are available upon return, and whether the individual is still qualified for the position after they return from service.
The following conditions must be met to be eligible for reemployment after military leave:
If you qualify for reemployment, your employer should make reasonable efforts to provide you with the following:
If a court finds that an employer violated USERRA, the court can award a variety of remedies. The court can order compliance with the statute through reinstatement. Beyond compliance, the court can award compensation for any lost wages or benefits suffered because of the employer’s failure to comply with the statute. Additionally, if the employer’s noncompliance with the statute was willful, the court can also award liquidated damages equal to the amount of lost wages or benefits suffered from the noncompliance in addition to actual damages. Lastly, an individual who prevails on a USERRA claim can be awarded attorney’s fees, expert witness fees, or any other litigation expense from the court.
Not necessarily. As long as you provide your employer with proper notice and the service qualifies under “Uniform Services,” you cannot be fired for taking a military service absence. If your employer fires you because of your military service, this is an act of discrimination that is forbidden under USERRA and you should contact Jordan or Mike.
No, your employer cannot cut your pay or position solely based on the fact you took a military service absence. If you provide your employer with the proper notice and your service qualifies under “Uniform Services,” you are protected under USERRA. If your employer lowers your pay, demotes your position, or takes any other form of retaliation against you because of your military service, this would be considered an act of discrimination that is forbidden under USERRA.
Yes. If you were injured or disabled during your military service, or if an existing injury or disability was aggravated during your military service, your employer must make reasonable efforts to provide you accommodations at your job. If your injury or disability makes it impossible for you to maintain your previous job, your employer must make reasonable efforts to find a comparable position you are qualified for.
Yes. An individual is protected under USERRA if you are required to be on duty or you volunteer for duty. USERRA protects individuals who are performing Uniform Service. The law does not dictate whether the service needs to be voluntary or involuntary – as long as the service meets the requirements of USERRA, it is protected.
No. You do not need your employer’s permission, the protection applies even if your employer does not approve of your absence.
USERRA provides servicemembers with additional job security beyond reemployment. USERRA prevents an employer from firing an individual without cause after their return from service. If your military service absence was 180 days or less but more than 30, your employer cannot fire you without cause for six months after your reemployment. If your military service absence was over 180 days, your employer cannot fire you without cause for one year after your reemployment.
No. An employer cannot force an individual to use their earned vacation time to cover their absence for military service.
If you were absent from your job for 30 consecutive days or less, you must show back up to work on the first full work period of the first full calendar day after you finish service, after accounting for travel and an eight-hour rest period.
If you were absent from your job for 31-180 days, you are required to resubmit an employment application with your employer within 14 days of your return from service.
If you were absent from your job for longer than 180 days, you are required to resubmit an employment application with your employer within 90 days or your return from service.
No. Under USERRA, you can elect to continue your insurance for yourself and your dependents while you are on leave for up to 24 months (unless you do not return to work upon the end of your service), though you may need to pay a portion of the premium or the entire premium plus an administrative cost, depending on length of service.
About the Authors
Jordan Matyas – Clients benefit from Jordan’s more than two decades in government including working in the White House, the Legislature, and as a regulator for the State and most recently as the Chief of Staff at the Regional Transportation Authority. Jordan is also a registered State and City lobbyist, working with clients on government relations, legislation, policy, and other aspects of public affairs.
Michael Haeberle – Clients contact Mike when they need a litigator. He assists businesses and individuals in cases pending in court, arbitration and administrative agencies, and has tried cases before judges, juries, arbitrators, and administrative law judges, with a focus on business lawsuits, contract litigation, shareholder disputes (business divorces), and professional negligence cases.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.
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