Labor & Employment Law
USERRA Violations – Uniformed Services Employment and Reemployment Rights Act
USERRA stands for the Uniformed Services Employment and Reemployment Rights Act of 1994. USERRA is a federal law that prohibits employers from discriminating against veterans and service members because of their military status or service. The statute also provides reemployment rights and other rights and benefits to employees whose civilian jobs are interrupted by military obligations.
What employers must comply with USERRA?
Virtually every civilian U.S. employer, whether federal, state, local, or private, regardless of size or number of employees, must comply with USERRA.
How do I know if USERRA protects me?
USERRA protects persons who serve, have served, will serve, or apply for membership in any of the “uniformed services”:
- Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard, and their reserve components
- Army National and Air National Guard
- Commissioned Corps of the Public Health Service
- FEMA reserve personnel called into service
- System members of the National Urban Search and Rescue Response System during a period of appointment into federal service
- Commissioned officer corps of the NOAA
- Any other category of persons designated by the President during war or national emergency
Protected military service under USERRA is voluntary or involuntary duty in a uniformed service under competent authority, including:
- Active duty
- Training
- Fitness-for-duty examinations
- Funeral honors duty
- Full-time National Guard duty
- Attending military service academies
- ROTC
- State active duty in the Florida National Guard (or other State National Guard)
- Service by National Disaster Medical System intermittent responders
- FEMA reserve service
- National Urban Search and Rescue System members appointed into federal service
However, USERRA does not apply to independent contractors.
Can my employer discriminate 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. USERRA prohibits employers from taking the following actions because of a person’s past, current, or future military status or service:
- Denying initial employment
- Denying reemployment
- Terminating employment
- Denying promotion
- Denying any benefit of employment
The law also prohibits employers from retaliating against employees who pursue USERRA claims against them, complain to an employer about violations of USERRA, testify in a USERRA proceeding, participate in a USERRA investigation, or exercise their rights under USERRA.
Does my employer have to reinstate me if I need to leave for military duty?
Generally, the employer must reemploy you once you return from military service as long as:
- You left your job with the employer to perform military service.
- You gave the employer advance written or verbal notice of your military service unless giving notice was impossible or unreasonable.
- The combined length of your periods of military service for which you were absent from work during your employment relationship with the employer does not exceed five years (absent specific exceptions).
- You timely reported to the employer or applied for reemployment after completion of the period of military service.
- You were not dishonorably discharged.
How long do I have to seek reemployment after completing military service?
An employee’s time limit for reporting to or applying for reemployment with the employer after completing military service generally depends on the length of the military service:
- For service of 1 to 30 days, an employee must report to the employer by the start of the first regularly scheduled work period on the first full calendar day after completing military service, plus time to safely travel from the place of service to the employee’s residence and eight hours after arriving home.
- For service of 31 to 180 days, an employee must apply for reemployment no later than 14 days after completion of the military service.
- For service of 181 or more days, an employee must apply for reemployment no later than 90 days after completing the military service.
The first two time limits are extended if it’s impossible or unreasonable for an employee to meet them through no fault of the employee. The employee must then report or apply for reemployment as soon as possible.
Suppose the employee cannot meet the applicable time limit due to hospitalization for or recovery from a service-related illness or injury. In that case, he or she must report to the employer or apply for reemployment at the end of the period necessary to recover. The recovery period may not exceed two years from completion of military service. If reporting to the employer within the two-year period is impossible or unreasonable, such period is extended by the minimum time necessary to accommodate the employee’s circumstances.
What job must my employer give me when I come back?
Returning employees entitled to reemployment under USERRA must be promptly placed in a position specified by USERRA. The so-called “escalator position” is the starting point for determining their job placement.
The escalator position is the position an employee would have had if he or she had not been away for military service. It could be the employee’s pre-service job, a promotion, a transfer, a demotion, layoff status, or severance.
If an employee’s military service lasted 1 to 90 days, the employer must promptly reemploy him or her in the escalator position, plus make reasonable efforts to qualify the employee for the position.
If the service lasted longer, the employer must promptly reemploy the employee in either the escalator position or a position equivalent to the escalator position in terms of seniority, status, and pay. The employer must make reasonable efforts to qualify the employee for the position.
Should the employee have a disability incurred in or aggravated during the employee’s military service, the employer must make reasonable efforts to qualify the employee for the escalator position and accommodate the employee’s disability.
Suppose an employee does not become qualified for the applicable position described above after the employer has made reasonable efforts to qualify the employee or accommodate his or her disability. In that case, the employee is entitled to another position specified by USERRA. The employer must make reasonable efforts to qualify the employee or accommodate the employee’s disability for this second position.
Should the employer’s reasonable efforts not qualify the employee for the second position, USERRA provides for the employee’s reemployment in an alternate position.
Am I entitled to any job benefits when I am out for military service?
When you are away for military service, the employer must treat you as if you were on a furlough or leave of absence and grant you the same rights and benefits not based on seniority that your co-workers of the same job level generally would receive while furloughed or on a non-military leave of absence.
You also have the option to use your accrued vacation, annual, or similar paid leave time while you are away. This is not the employer’s choice. The employer cannot force you to use your accrued paid leave.
Additionally, while serving in the military, you are entitled to up to 24 months of continuation of health plan coverage under USERRA. If the military service exceeds 30 days, you cannot be required to pay more than 102% of the premium. However, if the military service is less than 30 days, you may not be required to pay more than the active-employee rate for health insurance.
Am I entitled to pay while I’m out for military service?
It depends.
As mentioned above, the employer must grant you the same benefits not based on seniority that your co-workers of the same job level generally would receive while on a nonmilitary leave of absence. If your coworkers receive pay while on nonmilitary leave, you might be entitled to pay while on military leave under USERRA’s equality rule. Consultation with an attorney handling USERRA matters is recommended to help assess whether you have such entitlement under the equality rule.
Also as noted above, the employer must pay you your accrued vacation, annual, or similar paid leave time at your option.
If your employer has a policy providing for paid military leave, the employer’s failure to follow the policy could violate USERRA.
Public employees have paid leave rights for certain periods of military service under Chapter 115 of the Florida Statutes.
Will I lose my seniority and retirement rights if I leave for military service?
If you are entitled to reemployment under USERRA and are reemployed, you should not lose your seniority status or pension rights. Returning service members reemployed under USERRA are treated as if continuously employed for purposes of seniority and any rights and benefits determined by seniority (longevity in employment). Thus, the entire time of the absence for military service is treated as time at work in computing a service member’s seniority and his or her rights and benefits based on seniority.
The employer must make up pension or other retirement plan contributions that it would have made had the employee not been absent for military service. If employees make contributions under the plan, the employee’s makeup contributions may be made over a period that is triple the length of his or her military service but no longer than five years, starting on the date of reemployment.
Do I have any job protection once I’m reemployed?
If the military service you are returning from was 31 or more days, USERRA protects you from discharge without cause. If the service were 31 to 180 days, this job protection would last 180 days after the date of reemployment. If longer, the protection would last one year after the date of reemployment.
In addition, regardless of the length of your military service, you are protected under USERRA from discrimination and retaliation.
What remedies are available to me for a violation of USERRA?
If an employer violates USERRA and the employee succeeds in proving a violation, the employee can recover the following damages:
- Lost wages and benefits
- Liquidated damages for willful violations
- Prejudgment interest
- Front pay
- Attorneys’ fees
- Litigation expenses
Depending on the violation, the court may order that the employee be reinstated or promoted, that the employee’s seniority be corrected, and that the employee’s pension or retirement benefit plan be funded.
Employees cannot recover damages for emotional distress.
How do I pursue a USERRA violation?
When a USERRA violation occurs:
- The employee can file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (“VETS”), which will then investigate the complaint and try to resolve it if VETS determines a violation has occurred. If there’s no resolution at VETS, the employee can bring a lawsuit or ask VETS to refer the complaint to the Department of Justice (“DOJ”). If the complaint is referred to DOJ, DOJ may accept representation of the employee and file a lawsuit on the employee’s behalf. If DOJ declines representation, the employee can bring his or her own lawsuit.
- The employee does not have to first file a complaint with VETS before bringing a lawsuit. The employee can directly file a lawsuit. If the employer is a private employer or local government employer, the employee may file suit in federal or state court. If the employer is a state employer, a suit may be brought against the employer in state court. If the employer is a federal agency, an action against the employer may be filed with the Merit Systems Protection Board.
How long do I have to bring a USERRA claim?
USERRA does not have a time limit for bringing a claim or complaint. However, an employee should promptly pursue a claim once he or she becomes aware that his or her rights may have been violated.
Expert Insight from a Published USERRA Authority
At Sass Law Firm, we pride ourselves on our in-depth knowledge and experience in USERRA-related matters. Our attorney, Kathryn Piscitelli, a recognized authority on military employment law, authored The USERRA Manual: Uniformed Services Employment and Reemployment Rights (2024 ed.), published by Thomson Reuters. This comprehensive legal guide serves as a critical resource for attorneys, employers, and service members navigating USERRA rights and obligations.
Learn more about The USERRA Manual here.
Trust our team’s expertise and commitment to advocating for service members’ rights in the workplace. If you believe your USERRA rights have been violated, contact Sass Law Firm for experienced legal representation.
Sass Law Firm vigorously represents clients with claims under USERRA, including discrimination and retaliation claims, reemployment rights and benefits claims, and military leave rights and benefits claims. If you think you have been subjected to a violation of USERRA, please seek legal advice from an experienced attorney like those at the Sass Law Firm.
