Employment Discrimination on the Basis of Military Status
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination based on an employee's past, present, or future military service. This federal law applies to anyone who performs duties in the "uniformed services," whether involuntarily or voluntarily.
The "uniformed services" include the Army, Marine Corps, Navy, Army National Guard, Coast Guard, Air Force, Air National Guard, or Public Health Service commissioned corps. Certain disaster work also counts as uniformed service and qualifies an employee for protection under USERRA.
Protected people include those who are on active duty, inactive duty training, initial active duty training, active duty for training, and funeral honors. It also includes a period during which someone leaves his or her employer in order to be examined to determine his or her fitness to perform any of these duties.
Unlike many of the other anti-discrimination statutes, which apply only to employers of a certain size, USERRA covers all employers in the United States, irrespective of size. Part-time or probationary employees receive as much protection as full-time employees under USERRA.
How Does USERRA Protect Employees?
An employer cannot deny you employment, refuse to reemploy you, fail to promote you, or fail to offer you any benefit or privilege of employment because you have served or intend to serve in the military. Furthermore, an employer may not retaliate against you for exercising a right under USERRA or helping someone else who has a claim under USERRA.
One specific way that USERRA protects you as an employee is its requirement that civilian employers must reemploy you if you:
- Left a civilian job because of your service in the uniformed services;
- Gave notice in advance to your employer that you would be leaving your job for service in the uniformed services, or if you couldn't give notice because of military necessity or another event that made notice impossible;
- Did not have a period of military service during your work with the same employer that exceeded five years;
- Were not dishonorably discharged, nor leave as part of a military punishment; and
- Reported to your civilian job in a timely manner or submitted a timely application for reemployment, except in a case where it would have been impossible to timely report back.
You are entitled to be reemployed in the same position you would have held if you had not left the workforce for military service. This means if you have a job as a senior editor at a newspaper and must leave because you are called to the Navy for two years, you are entitled to return to your job as a senior editor with the same pay, rights, and benefits.
The amount of time you have to apply for reemployment varies depending on the amount of time you spend in military service. For example, if you serve 181 days or more in the armed forces, you must apply for reemployment no later than 90 days after you complete military service.
People who bring a claim for discrimination in violation of USERRA may recover lost wages or benefits. You also may be able to receive liquidated damages if your employer willfully violated USERRA. For example, you can potentially get liquidated damages if you apply for reemployment as a senior magazine editor under USERRA and your employer refuses to give you your job back because there are no comparable positions.
If you were disabled during your service, you have two years from completion of service to return to your former job. Veterans with disabilities may have the right to reemployment as well as rights to reasonable accommodations under the Americans with Disabilities Act.