The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides – and vigorously protects – a number of employment, reemployment, and employment benefit rights for members of the uniformed services, including the armed forces and the National Guard.
USERRA protects individuals who are serving or have served in any branch of the armed forces, the Army National Guard and the Air National Guard when those individuals are engaged in active duty for training, inactive duty training, or full-time National Guard duty. USERRA’s protections extend to any person who is a citizen, national, or permanent resident alien of the United States, whether he or she is employed in the United States or abroad, if his or her employer is a business organized in the United States or controlled by a business organized in the United States. All public and private sector employers are covered by USERRA, regardless of the number of people they employ. USERRA defines an “employer” to include not only the employing business or organization, but also individuals within the organization who have employment-related responsibilities. The effect of this broad definition is to expand the liability for non-compliance from the employing business or agency to the business or agency’s individual managers.
Under USERRA, employees who properly notify their employers of the need for a service-related absence, take a cumulative absence of no more than five years, and properly reapply or report back to work have a right to reinstatement in their former position. An employer may only justifiably refuse this right if the employer can prove that reemployment is unreasonable, impossible or creates an undue hardship.
Because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries.
– Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-313 (4th Cir. 2001)
A person who is reemployed under USERRA is entitled to the seniority, as well as the related rights and benefits, that the person had at the start of uniformed services duty. In addition, the reemployed person is entitled to additional seniority, rights, and benefits as if the person had remained continuously employed. If the position to which the employee returns requires additional qualifications, such as training, then the employer must make reasonable efforts to qualify the employee for the position. Also, if the employee returns to work with a service-related disability, the employer must reasonably accommodate the disability.
USERRA also protects returning employees against discharge for a limited period after they return. Under USERRA, an employee is not terminable at will, but only for cause, for six months to a year after reemployment, depending on the length of the employee’s uniformed service. In the event of such a termination, the employer has the burden of proving that the termination was justified. Courts addressing this issue have interpreted “cause” narrowly and in favor of the employee.
USERRA also protects employees against discrimination and retaliation. The Act provides that a member of a uniformed service (which includes persons who have applied for membership or who have an obligation to perform services) shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of such membership. In this regard, a “benefit of employment” includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment. In addition, USERRA prohibits and employer from retaliating against any person who exercises a protected right or acts to protect such a right on behalf of another. The protection against retaliation extends to persons who have not performed service in the uniformed services.
USERRA provides two routes for an employee with a claim under the Act. The employee may make a claim in writing with the Veterans Employment and Training Service (“VETS”), which will investigate the claim and make a reasonable effort to bring the employer into compliance with the Act. If VETS cannot successfully resolve the claim within 90 days, VETS will notify the employee, who may then request that the matter be referred to the United States Attorney General. VETS must make such a referral within 60 days of the request. Following such referral, the Attorney General has another 60 days to decide whether to appear on behalf of the employee and notify the employee of the decision. Alternatively, an employee may choose to file a lawsuit without involving VETS or the Attorney General.
A court may grant the following kinds of relief to a successful claimant under USERRA:
- Back pay and benefits, which may be doubled if the court finds that the employer’s violation was wilfull;
- An award of lost promotional opportunities, retroactive seniority, and other adjustments related to restoration of seniority;
- Prejudgment interest; and
- Attorneys’ fees and court costs. (With respect to attorneys’ fees and court costs, only a successful employee may recover those items. An employer, whether or not the prevailing party at trial, may not recover fees or costs.)