USERRA Rights

About USERRA Rights

USERRA protects discrimination against employees including hiring, promotion, reemployment, or any other benefit of employment.  Employers are required to reemploy the individual upon returning from the call of duty in the same or similar position they held prior to departure. This includes the seniority previously earned while maintaining the benefits and health plan during their time of service. 

USERRA protects anyone serving in the armed forces or Public Health Services for taking military leave resulting in absence from work.  This includes the Army, Navy, Air Forces, Marines, Coast Guard, Reserves, Army and Air National Guards, the commissioned corps of the Public Health Service, and any other persons designated by the President in time of war or national emergency.

Reemployment Rights

Companies are required to rehire military personnel upon return of military duty by USERRA, whether active or inactive.  When possible, the employee must give 30 days notice to employers prior to their leave to be protected by USERRA.  However, USERRA recognizes that certain circumstances can make it impossible or unreasonable to do so and exceptions can be made.  Seeking employment must be done timely. Leaves that are less than 30 days require the employee to seek employment the next business day after their return.  If the military leave was between 31 and 180 days, one has 14 days to reapply. If the military service was more than 181 days, the military personnel has 90 days to reapply.  In the case of injury or illness, one has up to two years to reapply for their position. In some cases, a longer period of recovery may be an exception.

Benefits and Seniority Under USERRA

USERRA states that returning service-members are reemployed in the job that they would have attained had they not been absent for military service along with the same seniority, status and pay, and other rights and benefits determined by seniority.  This is known as the "escalator" rule.   USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law states that an alternative reemployment position be obtained if the service member cannot qualify for the "escalator" position due to an injury that occurred while on military leave.

USERRA also entitles the military personnel any benefits of seniority as if the leave had never taken place.  This includes medical and pension benefits which the company must continue to provide while the employee is serving in military duty. 

Most employment is at will, meaning an employer may terminate an employee at any time for any reason.  USERRA changes this rule.  In an instance in which an employee returns from a leave of more than 30 days, USERRA prohibits a company from firing them without cause within the first 180 days of rehire.  If the military leave was more than 180 days, USERRA prohibits firing them without cause for a year from rehire.

Enforcement of USERRA Rights

In a case in which a company violates USERRA, the employee can file a claim with the Secretary of Defense, or file an independent USERRA lawsuit with a military lawyer or private lawyer in court. If a claim is made with the Secretary of Defense and the Secretary is unable to assist in the case, the employee can request the Secretary refer the case to the Attorney General to file a USERRA lawsuit or hire a military lawyer or private lawyer to do so.  A private lawyer can even be sought if the Attorney General refuses to file.  

If the violated employee files a USERRA lawsuit, a court may do a number of things.  The company may be forced to comply with USERRA, compensation to the employee for lost wages and benefits may be paid to the employee, and in some cases the company may be required to pay double the amount of lost wages and benefits.  The employee is also entitled to recover any attorney's fees and costs associated with the USERRA lawsuit.  Even if the case is lost, the employee is not required to pay any of the attorney's fees or cost incurred by the employer.

There is no statue of limitations in filing a USERRA lawsuit.  The claim can be filed at anytime to recover lost wages and benefits.  However waiting to file a USERRA claim for years may not require an employer to rehire the employee or compensate them in other ways.

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