USERRA Applies to all Employers in the Public and Private Sectors, Regardless of Employer Size.
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 in the uniformed services provided the following criteria are met:
- 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.
Service members whose leave is 90 days or less are entitled to be placed in the same job he or she would have held had the leave never occurred, 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 the employee in a position of like seniority, status and pay, again provided the individual is or can become qualified for the position.
Employers are also required to accommodate individuals who suffer 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.
As is the case with so many laws, 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, would 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. Keep in mind, however, that the employer will bear the burden of demonstrating changed circumstances and/or undue hardship.
An individual whose rights were violated may be awarded reinstatement, lost wages and benefits, liquidated damages and attorneys’ fees. If you believe your USERRA rights were violated, please contact Dworken & Bernstein for a free consultation.
