What is USERRA and what are my rights under it?

What is USERRA?

USERRA stands for the Uniformed Services Employment and Reemployment Rights Act. It was passed in 1994 with the purpose of protecting Americans from civilian employment discrimination based on their decisions to serve in the country’s uniformed services. It also establishes the different courses of action that veterans can utilize if they feel they have been discriminated against in employment or reemployment based on military service. One of the main points of improvement that USERRA made to the previous law protecting veterans from employment discrimination—Veterans’ Reemployment Rights (VRR) Statute— was to increase the “the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights.”[1]

Who is protected by USERRA?

USERRA protects part-time, full-time, and probationary employees working for any public or private employer in the United States. If you work in an overseas location for a U.S. employer, you are also protected. Unlike many other employment discrimination laws, USERRA applies to all employers, irrespective of size. It applies to service members seeking reemployment at their previous jobs after service, as well as service members seeking new employment.[2] A service member is only eligible for protection under USERRA if he or she served in the uniformed services for a cumulative period of less than five years with a single employer, gave the employer reasonable notice of service, was not dishonorably discharged, and returned to his or her civilian employment within a reasonable amount of time following the period of service, barring circumstances that would prevent this.[3] The amount of time allowed before reporting back to work is based on the length of military service as follows:

• Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
• 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible
• 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
• Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.[4]

What are my rights under USERRA?

USERRA protects uniformed service members from discrimination in employment based on “past, present, or future military obligation.” If you have left your employment for military service, you are entitled to prompt reemployment in the same or an equivalent position you had when you left or the position you “would have attained had [you] remained continuously employed during the period of military service.”[5] The Department of Labor has stipulated that a prompt reinstatement is a reinstatement that occurs within days—meaning less than a month—of notifying your employer of your return. You are also entitled to the “same seniority, status and pay, as well as other rights and benefits determined by seniority” that you would have had had you not participated in military service.[6] Employers are prohibited from discriminating against or harassing current or past uniformed service members in hiring decisions and promotion decisions, along with any decisions regarding benefits or retention.[7] This includes a prohibition against creating a hostile work environment.[8] Actions taken by veterans to ensure their rights under USERRA are protected actions, meaning your employer cannot retaliate against you for asserting your rights or filing a claim, for example.[9]

More information about USERRA can be found at: https://www.dol.gov/vets/programs/userra/index.htm.

[1] “Frequently Asked Questions,” United States Department of Labor, http://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=418&faqsub=Uniformed+Services+Employment+and+Reemployment+Rights+Act+%28USERRA%29&faqtop=Laws+%26+Regulations&topicid=5&lookfor=userra.

[2] Id.

[3] “Know Your Rights,” United States Department of Labor, https://www.dol.gov/vets/programs/userra/aboutuserra.htm#knowyourrights.

[4] Id.

[5] “Frequently Asked Questions,” United States Department of Labor, http://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=418&faqsub=Uniformed+Services+Employment+and+Reemployment+Rights+Act+%28USERRA%29&faqtop=Laws+%26+Regulations&topicid=5&lookfor=userra.

[6] Id.

[7] Know Your Rights,” United States Department of Labor, https://www.dol.gov/vets/programs/userra/aboutuserra.htm#knowyourrights.

[8] Vickers v. City of Memphis, 368 F. Supp. 2d 842, 845 (W.D. Tenn. 2005); see also Steenken v. Campbell Cnty., No. 04-224-DLB, 2007 WL 837173, at *3 (E.D. Ky. Mar. 15, 2007) (recognizing claim for hostile work environment under the USERRA).

[9] Id.