The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. § 4301, et. seq.) covers persons in uniformed services (which includes not only military but Coast Guard and Public Health Service and reserve components). National Guard involved in federal training are also covered. Uniformed service includes active duty, active duty for training, inactive duty training, funeral honors, and examination times. The law covers persons with past, current, or future obligations to the uniformed services.
Reemployment rights are provided to persons who held a civilian job prior to military service, gave written or verbal notice of the military service, not exceeded the 5 year cumulative limit of military service, was released from service under conditions other than dishonorable, and reported back to the civilian job in a timely manner or submitted a timely application for reemployment.
The employee must provide advance notice of military service (can be oral or written and provided by employee or military officer) unless military necessity prevents notice or notice is impossible or unreasonable.
The cumulative length of service may not exceed 5 years with 8 exceptions:
1. Service required beyond 5 years to complete an initial period of obligated service
2. Service from which person through no fault of his own, is unable to be released within 5 years
3. Required training for reserve and National Guard (and required training for professional development) exempt from 5 year limitation.
4. Service under involuntary order
5. Service under order to remain on active duty
6. Active duty by volunteers supporting operational missions
7. Service by volunteers ordered to active duty to support critical mission or requirements in times other than war or national emergency.
8. Federal service by National Guard called by President to suppress an insurrection, repel invasion or execute laws of U.S.
Service must be under conditions other than Dishonorable. Disqualifying service includes:
1. Separation from service with dishonorable or bad conduct discharge.
2. Separation from service with other than honorable conditions.
3. Dismissal of commissioned officer in certain circumstances
4. Dropping servicemember from rolls when AWOL for more than 3 months or imprisoned by civilian court.
Reapplication for Employment:
After 1 to 30 days of service, the employee must report back to his employer on the first regularly scheduled day falling 8 hours after the end of the calendar day of arrival. If that is impossible, the employee must report back as soon as possible.
After 31 to 180 days of service, the employee must submit an application for reemployment no later than 14 days after completion of service. If the application cannot be submitted in a timely manner through no fault of the employee, the application must be submitted as soon as possible. If the business is not open on the 14th day or no one is present to accept the application, the time is extended until the next business day.
After 181 days or more of service, the application for reemployment must be submitted no later than 90 days after completion of service. As in the above category, if on the 90th day the business is not open or no one is present to accept the application, the time is extended until the next business day.
Disability: Application deadlines are extended by 2 years if the member is hospitalized or convalescing due to a disability incurred or aggravated due to military service. Reasonable efforts must be made by the employer to accommodate the employee. Disabilities need not be permanent to qualify as disabilities under the law.
If the member fails to report to work or reapply within the time limits, the rights are not forfeited, but the member is subject to employer rules for unexcused absences.
Type of Job: Unless disabled due to military duty (or aggravated by military duty), the employee must be reinstated based on the length of service.
1-90 days service: Must be promptly reemployed in this priority:
1. Job person would have attained if remained employed, as long as qualified for job or can became qualified with reasonable efforts by the employer.
2. If employee cannot become qualified for job he would have attained, then the employee is entitled to the job he left.
91 or more days of service: Must be promptly reemployed in this priority:
1. In job as stated above, or
2. In position of like seniority, status or pay which person is qualified to perform.
Prompt reemployment is required. Reinstatement might require giving notice to an existing employee who might have to give up the position.
Employer changes and hardship: Employers may be excused from reinstatement if the employer has undergone changes which would make reinstatement impossible or unreasonable, or if accommodating the employee due to disability would be an undue hardship.
Seniority and Benefits: Seniority would be based as if the employee had remained employed during the service period. Any rights and benefits not based on seniority that employees obtain due to leaves of absences must also be accrued. Any vacation benefits accrued at time of service, must also be permitted to be utilized. Vacation time cannot be forced to be used for military service. Health benefits must be continued and waiting periods or exclusions cannot be imposed (except for service connected disabilities).
Discharge: A reemployed servicemember may not be discharged without cause for 1 year after date of reemployment if service was for more than 181 days or more, or for 6 months if service was for 31-180 days.
Discrimination: Military obligations are prohibited from acts of employment discrimination. This covers most areas of employment. If a employer discriminates with an adverse employment action, a violation has occurred unless the employer can prove that he would have taken the same action regardless of service connection, with the burden being on the employer once a prima facie case is made. The employer must prove that a reason other than service was justifying his action. Employers are also prohibited from retaliating against persons who file complaints, testifies or assists in an investigation, or exercises any right under the law.
The Secretary of Labor issues regulations implementing the statute. The Veterans’ Employment and Training Service (VETS) of the Department of Labor investigates complaints, but VETS complaints are optional. VETS may subpoena attendance, testimony, and production of documents.
The U.S. Office of Special Counsel (OSC) began investigating federal sector claims after February 8, 2005 for persons with a social security number ending in an odd numbered digit or if a prohibited personnel practice has occurred.
Complaints may be submitted to the Attorney General after VETS nonresolution for court action on the complainant’s behalf. Private court action is available. However, if a complaint is filed with VETS, requested that VETS refer the complaint to the Attorney General, or been refused representation by the Attorney General, no private action is authorized.
Employees may be awarded back pay or lost benefits which can be doubled if the action was found to be willful (similar to cases under Age Discrimination in Employment Act)- knowing or reckless in disregard of law. Attorney fees, expert witness fees, and other litigation expenses can be awarded to successful plaintiffs. Charging of court fees or costs is prohibited against person bring suit in court.
USERRA
CFR Implementation of USERRA
VETS rules
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