Military Leave and USERRA

USERRA Violations – Uniformed Services Employment and Reemployment Rights Act 

What is USERRA?

USERRA stands for the Uniformed Services Employment and Reemployment Rights Act of 1994, which is a federal statute that prohibits discrimination and retaliation by employers based on military service.

USERRA also requires employers to reemploy individuals who leave their employment to serve in the military back to the same position as the employee held pre-service.

What employers must comply with USERRA?

All civilian U.S. employers, including federal, state, local and private-sector employers, regardless of size or number of employees, are required to comply with USERRA.

How do I know if I am covered by USERRA?

USERRA applies to employees who serve, have served, will serve or apply to serve in any of the uniformed services:

• Armed forces of the United States;
• State National Guard duty;
• Army and Air National Guard;
• Public Health Service; or
• National Disaster Medical System participants.

The types of “service” performed includes the following actions:

• Voluntary or involuntary duty;
• Time of war, peace or national emergency;
• Active duty and inactive duty;
• Training;
• Pre-induction fitness-for-duty examinations;
• Funeral honors duty;
• Service academies and ROTC; and
• Full-time National Guard duty.

However, it does not apply to independent contractors.

Can my employer discriminate or retaliate against me because of my military service?

No. USERRA makes it illegal for employers to discriminate against employees because they have served, are serving, or will serve in the military. This includes refusing to allow an employee to attend scheduled drills or annual training.  Employers are prohibited from taking the following actions because of an employee’s military status or duties:

• Deny initial employment;
• Deny reemployment;
• Terminate employment;
• Deny a promotion; or
• Deny any other benefit of employment.

The law also prohibits employers from retaliating against employees who pursue USERRA claims against the employer, lodge internal complaints about discrimination based on military service or employees who exercise their rights under the law.

Does my employer have to reinstate my employment if I need to go on leave for active duty?

Yes, the employer is required to reinstate your employment once you return from service as long as:

• You gave written or verbal notice of your service, unless giving notice was impossible or unreasonable;
• The total amount of military service leave does not exceed five years (absent specific exceptions);
• You timely returned to the employer or applied for reemployment once service ended; and
• You were not dishonorably discharged.

Additionally, an employer must place an employee who leaves their employ to serve in the military on a furlough or leave of absence with the same benefits that a co-worker of the same job level would receive if out on a furlough or leave of absence.

What are the time limits for reinstatement from military leave?

An employee’s time limit for being reinstatement generally depends on the length of the leave:

• For service of 1 to 30 days, an employee must return to work beginning on the next regularly scheduled work period following completion of service, designated travel time and a designated rest period;
• For service of 31 to 180 days, an employee must apply to return to work no later than 14 days after completion of the military leave;
• For service of 181 or more days, an employee must apply to return to work no later than 90 days after completing the military leave.

If a returning service member cannot return due to a service-related illness or injury, these above deadlines may be extended up to two years

Am I entitled to my wages while I am out for military service?

No. USERRA does not require employers to pay service members who are on leave or not working due to military service.

However, employers are required to provide service members with the same benefits, such as holiday pay, as they provide for non-military employees who are out on a leave of absence. Employees who are on leave due to military service are entitled to use their accrued vacation, annual, or similar paid leave time while they are away, but keep in mind that employers cannot force service members to use their paid leave.

Service members are also entitled to up to 24 months of continuing health insurance coverage under COBRA. Pursuant to COBRA, the employee is required to pay the cost (not to exceed 102%) of the continuing the health coverage premium. However, if the leave is less than 30 days, an employee may not be required to pay more than the active employee rate for health insurance.

What damages are available to me for a violation of USERRA?

If an employer violates USERRA, and the employees succeeds in proving a violation, the employee can recover the following damages:

• Lost wages and benefits;
• Liquidated damages for willful violations;
• Reinstatement of employment;
• Prejudgment interest;
• Front pay; and
• Attorneys’ fees.

Employees cannot recover damages for emotional distress and other non-wage/non-benefit losses.

How do I pursue a USERRA violation?

Employees have two options when a USERRA violation occurs.

1. The employee can file a claim through the U.S. Department of Labor’s Veterans’ Employment and Training Service (“VETS”) who will then investigate the complaint and resolve it if they determine a violation has occurred. Once a complaint is filed with VETS, the employee must wait for a finding by VETS before filing a lawsuit under USERRA; or
2. The employee can directly file a lawsuit in either federal or state court, depending on the type and nature of their claim.

How long do I have to bring a USERRA claim?

There is no time limit for bringing a claim or complaint under this statute.

Sass Law Firm zealously represents clients in discrimination and retaliation claims pursuant to USERRA.  If you think you have subjected to a violation of USERRA, please seek legal advice from an experienced attorney like those at the Sass Law Firm.