The USERRA: Protecting the employment and reemployment rights of our uniformed service members
If you are an individual considering service in the uniformed services or a service member returning from a deployment, you may have questions or concerns about your potential or current employment. In 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). 38 U.S.C. § 4301. The legislation acts “to encourage noncareer service,” “to minimize the disruption to the lives of persons performing service,” and “to prohibit discrimination against persons because of their service.” The USERRA may help you make the decision to become a member of the uniformed services or may protect you if you are already a member.
The USERRA protects uniformed service members, and those considering a such service, in 3 important ways:
First, the USERRA guarantees noncareer service members reemployment in the same position and with the same benefits as they had before being called to duty. “Benefits” is a general category under the USERRA that encompasses what we traditionally understand as benefits, such as healthcare and vacation time, and also encompasses pay. 38 U.S.C. § 4316. So, for example, if Jane works for Corporation making $25 per hour as a human resources specialist, with full health benefits, and PTO and is called to serve for less than 5 years, when Jane returns from deployment, the USERRA guarantees her reemployment in her job as a human resources specialist, at $25 per hour, with full health benefits, and PTO.
Second, the USERRA guarantees that noncareer service members are reemployed at the same seniority and with the same benefits that they would have attained had that individual remained continuously employed, without any interruption caused by deployment. Id. So, imagine that Joe works for Corporation making $25 per hour as a Human Resources Specialist, with full benefits, and PTO and is called to serve for less than 5 years. While Joe is deployed, Corporation undergoes a restructuring and Joe’s position as a human resources specialist becomes a Human Resources Representative. Human Resources Representatives make $30 per hour, maintain full benefits, and receive more PTO than the Human Resources Specialists received. When Joe returns from deployment, he is entitled to a position as a Human Resources Representative making $30 per hour, with full benefits and the same amount of PTO as the other Human Resources Representatives.
Another example of how this second protection may work is if Corporation has a promotional procedure that allows Human Resources Representatives to become Human Resources Experts. Before Joe leaves, all of his peers work as Human Resources Specialists. While he is deployed, the position of Human Resources Specialist becomes Human Resources Representative. Also, while he is deployed, all of his peers undergo a bi-annual training that makes them eligible to become Human Resources Experts and, in fact, some of his peers do become Human Resources Experts. When Joe returns, he is likely entitled to receive the same bi-annual training to become eligible to become a Human Resources Expert and he may also be entitled to the promotion depending on how Corporations promotional process works.
Third, the USERRA guarantees that service members are not discriminated against or retaliated against. 38 U.S.C. § 4311. This means that an employer’s decision to hire, terminate, promote, or take other employment actions cannot be motivated by the fact that an individual is a servicemember. Id. (a); see also Id. (c)(1). “Servicemember” is used in this blog post to include: any person that is “a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services.” Id.
As a corollary, an employer may not take an adverse employment action against a servicemember (1) for taking action to force the employer to comply with the USERRA, (2) testifying or making a statement in connection with the USERRA, (3) assisting or participating in an investigation authorized by the USERRA, or (4) exercising a right provided by the USERRA. Id. (b); see also id. (c)(2).
So, if Jane applies to be in the National Guard and Corporation terminates her and Jane can show that Corporation’s termination of her employment was motivated by the fact that she applied to be in the National Guard, Jane can seek remedies under the USERRA.
If, when Joe returns from deployment, he tells Corporation that he needs to be paid $30 per hour like the rest of his peers and Corporation terminates him, if Joe can show that Corporation terminated him because Joe demanded Corporation’s compliance with the USERRA, Joe can seek remedies under the USERRA.
Madia Law is a law firm owned by a veteran and dedicated to protecting the rights of those serving our Country, or considering undertaking the duty of serving our Country. For more information about your rights as a servicemember, please call our offices or go to https://www.dol.gov/vets/programs/userra/.