As another Memorial Day passes and we remember those men and women who died while serving our country, I thought it would be appropriate to discuss the employment protections afforded to service members. The Uniformed Services Employment and Re- Employment Rights Act of 1994 (USERRA) protects civilian job rights and prohibits discrimination in employment based on an individual’s prior service in the uniformed services, current service in the uniformed services, or intent to join the uniformed services. The term “uniformed services” includes the Armed Forces, Reserve, and National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the president in time of war or national emergency.
Unlike the FMLA which only applies to certain employers and employees, USERRA applies to all employers in both the public and private sectors, regardless of the size of the employer. USERRA protections are also afforded to both full and part-time employees.
Under USERRA, a service member is entitled to be reemployed in his or her civilian job following a return from a period of service, provided the following criteria are met:
- Must have been absent from a civilian job due to service in the uniformed services.
- Must have given advance notice to the employer that he or she was leaving the job for service, unless such notice was precluded by military necessity or otherwise impossible or unreasonable.
- The cumulative period of military service with that employer must not have exceeded five years.
- Must not have been released from service under dishonorable or other punitive conditions.
- Must have reported back to the civilian job in a timely manner or submitted a timely application for reemployment, unless such was impossible or unreasonable.
The type of position the individual is entitled to be reinstated in depends on how long they were absent. Service members whose leave is 90 days or less are entitled to be placed in the same job, provided the individual is or can become, through reasonable efforts, qualified for the position. However, if the leave exceeds 90 days, the employer has the option of returning the employee to the same position or placing them in a position of like seniority, status and pay, again provided the individual is or can become qualified for the position. To assist an individual in qualifying for a position, an employer may be required to provide training. Returning service members also have protection against termination which varies depending upon the length of service.
Employers are also required to accommodate individuals with service-related disabilities. If a reasonable accommodation will not allow the disabled individual to be restored to his or her position, the employer must reemploy the disabled individual in a position that is equivalent in terms of seniority, status and pay.
There are always exceptions. An employer may be excused from reemploying a service member if the employer can demonstrate that changed circumstances, such as a reduction in force, make reemployment impossible or unreasonable. Likewise, if reemploying a service member or accommodating an individual with service-related disabilities would pose an undue hardship, an employer may also be excused from this obligation. However, employer will bear the burden of demonstrating changed circumstances and/or undue hardship.
USERRA also contains provisions prohibiting discrimination. Employers are prohibited from denying service members initial employment, retention in employment, promotion or any benefit of employment. Likewise, an employer may not retaliate against an individual for filing a USERRA claim.
USERRA also contains provisions providing for the continuation of health insurance. An individual who leaves his or her job to perform military service has the right to continue existing health insurance coverage both for the individual and eligible dependents for up to 24 months while in the military. Even individuals who opt not to continue health insurance coverage have the right to have their coverage reinstated upon reemployment. This typically means the individual will not have to go through any waiting periods or exclusions.
An individual who believes his or her rights were violated may choose to file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS). VETS has the authority to investigate and resolve USERRA complaints. However, there is no requirement that an individual file a complaint with VETS. They may immediately proceed with filing a civil action against an employer for USERRA violations. If successful, an individual may be awarded reinstatement, lost wages and benefits, liquidated damages and attorneys’ fees. Not only can the loss of a job be devastating for a returning service member, defending a USERRA claim can be costly for an employer who fails to comply with this law. Employers need to have thorough understanding of USERRA and its provisions and implement policies to ensure compliance. Kristen Kraus