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.
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.
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.
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 addition, USERRA prohibits an 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 or file a lawsuit.
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 willful;
- 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.)