Enforcing Your USERRA Rights
Members of the military who are called away from their civilian careers should not come home to find they have no job. Likewise, former service members should not be punished for the time they spent serving the country. Thankfully, the Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination due to military service and protects service members’ employment rights and benefits.
What does USERRA protect?
USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to a person on the basis of a past, present or future service obligation.
If you leave your civilian job to perform qualified military service, USERRA generally requires your employer to rehire you upon return from military duty. In order to take advantage of this benefit, you are usually required to notify your employer before your service obligations begin, and must also promptly apply for reinstatement upon the conclusion of your military duties.
While different rules may apply based on your length of absence and other circumstances such as illness or injury, if you gave proper notice and applied for reinstatement upon your return, your employer is most likely required to reinstate you unless they can prove that it is impossible, unreasonable, or would otherwise cause them an undue hardship to rehire you.
USERRA also ensures that service members are not placed at a disadvantage when it comes to promotions and benefits. Seniority and other rights and benefits determined by seniority that you had on the date of commencement of military service should be preserved, and you should receive additional seniority-based rights and benefits that you would have attained had you remained continuously employed. An example of this sort of benefit is an automatic pay raise all employees are given after a certain period of time.
In some cases, you may be entitled to a promotion upon your return. If it is reasonably certain you would have received a promotion had you not been called to duty, you are generally entitled to that promotion upon your return, provided you are qualified for the new position or can be trained for the position.
Who is covered under USERRA?
USERRA applies to all persons who serve or served, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps, as well as the reserve components of each of these services. Those who underwent Federal training or service in the Army National Guard or Air National Guard are also generally covered and protected by USERRA.
USERRA requires all private employers and all federal, state, and local governments to comply with the terms outlined in the act.
Secure Your Rights
The law applies differently in different situations, so the attorneys at Elkus, Sisson & Rosenstein P.C. would need to hear more about your particular circumstances to determine the best path forward should you wish to pursue a claim.
If you believe your current or former workplace or a potential employer discriminated against or denied you benefits that other employees received based on your military service, the time to seek justice is now. Delaying can make your claims more difficult to prove or prevent recovery.