USERRA is a federal statute that protects armed forces members’ reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation. The statute also bars retaliation against employees for asserting their rights under the statute.
USERRA applies to employers throughout the country, regardless of size, including federal, state, and local governments.
USERRA broadly provides that, “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” 38 U.S.C. § 4311(a).
Under USERRA, an employee returning from a period of military service is entitled to be placed in his or her “escalator position,” i.e., a position of comparable seniority, status, and pay to that which the employee “would have attained with reasonable certainty” but for the military service. If the employee is not qualified to hold the escalator position, the employer is required to make “reasonable efforts” to qualify the employee for such a position. If such efforts are unsuccessful, then the employee is entitled to the position he or she held prior to the leave. An employer’s re-employment obligation may be excused if the employer’s circumstances have so changed as to make such re-employment impossible or unreasonable. There are mandatory notice requirements under the statute.
In addition, depending on the length of the period of military service, USERRA provides certain restrictions on an employer’s right to terminate an employee following the return from leave.
If an employee proves a violation of USERRA, the remedies available under the statute include reinstatement, promotion, back pay, front pay, liquidated damages, attorney’s fees, and costs. Compensatory damages and punitive damages are not available under USERRA.
An employee who believes his or her rights under USERRA have been violated may either file a complaint with the U.S. Department of Labor, which will investigate and attempt to resolve the claim, or file a lawsuit directly in court. There is no formal statute of limitations under USERRA, but employees should pursue their claims promptly.
Because the rules and procedures under USERRA are complicated, an employee should discuss his or her complaints of USERRA violations promptly with a qualified employment lawyer.