What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
A recent post by my friend Eric B. Meyer on his The Employer Handbook prompted me to make sure I understood an employer’s duties to our military veterans.
Eric very helpfully compares USERRA to the Americans with Disabilities Act (ADA):
“If the ADA is the disability discrimination law, which it is because “disability” is right in the title, then USERRA is the military discrimination law. Specifically, USERRA prohibits employment discrimination against someone who has served, does serve, or intend to serve in the military.”(emphasis added).
“Employers cannot deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person based on a past, present, or future service obligation. USERRA also has an anti-retaliation provision that precludes employers from retaliating against a person because of an action taken to enforce or exercise any USERRA right or for assisting in a USERRA investigation.”
According to the U.S. Department of Labor (DOL), USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.
USERRA for Returning Employees.
Eric cautions us: “But, there are two parts to USERRA, the second of which can get employers into trouble even without showing any anti-military bias. It’s a bit like FMLA interference.”
(The FMLA is the Family and Medical Leave Act.)
According to the DOL:
“The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:
- The person must have been absent from a civilian job on account of service in the uniformed services;
- The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, 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;
- The person must not have been released from service under dishonorable or other punitive conditions; and
- The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training. USERRA also allows an employee to complete an initial period of active duty that exceeds five years.”
USERRA is complicated (obviously). Make sure your Employee Handbook has a section on USERRA rights, and train your supervisors about complying with it.
Please consult with an employment law expert who is licensed in your state for help creating or updating your Employee Handbook.
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2020 Michael S. Oswald