The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from discriminating or retaliating against any employee or applicant because of the individual’s past, present, or future application for uniformed service or performance of such service. The prohibition extends to decisions regarding hiring, reemployment, retention, promotion, or any benefit of employment.
The prohibitions against discrimination protect individuals who file claims, exercise a right, testify in a proceeding, or otherwise participate in an investigation under the law.
“USERRA” defines the term “service in the uniformed service” to mean the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority. It includes duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period of absence for the purpose of an examination to determine an individual’s fitness for duty.
The term “uniformed services” is defined to mean the Armed Forces, the Army National Guard, and the Air National Guard when engaged in active duty for training, inactive duty training or, full-time National Guard duty. It also includes commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or emergency.
Reemployment Rights
Under the law, employees who take leaves of absence from their jobs to serve in the uniformed services are entitled to reemployment if they:
- give proper advance verbal or written notice of such service to the employer;
- are not absent for a period in excess of the limitations prescribed by law; and
- report or submit an application for reemployment within the period prescribed by law.
However, an employer is not required to reemploy an individual if:
- the employer has experienced a change in its circumstances that makes reemployment impossible or unreasonable;
- reemployment would impose an undue hardship on the employer; or
- the individual’s employment prior to military service was for a brief, non-recurrent period and there was no reasonable expectation that it would continue indefinitely or for a significant period.
Applications for Reemployment
The reemployment protections of the law are based on the length of the employee’s time away from the employer.
Termination of Statutory Benefits
The statute provides that an individual’s entitlement to the law’s protections as a result of service in the uniformed services will terminate if a disqualifying event occurs. Such events include a separation from uniformed service with:
- a dishonorable discharge,
- a bad conduct discharge, or
- under other than honorable conditions
Job Retention Right
The law provides that an employee who is reemployed under the USERRA may not be discharged from employment, except for cause, for one year after the date of reemployment if the employee’s period of service before the reemployment was more than 180 days. If the period of service was more than 30 but less than 181 days, the employee may not be terminated without cause for 180 days after his or her reemployment.
Vacation and Leave Time
The statute also addresses an employee’s ability to use vacation benefits during a military leave. It provides that any person whose employment is interrupted by a period of service in the uniformed services must be allowed, upon his or her request, to use any previously accrued vacation, annual, or similar leave with pay during the period of service.
To find out more about protections and requirements of “USERRA,” click on the USERRA Advisor website.
If you feel that you have been the subject of discrimination or harassment under provisions of USEERA and would like to receive assistance or file a complaint, click on Filing a Complaint.
Complaints
Complaints alleging violations of “USERRA” may also be filed with the Veterans-Employment Service of the United States Department of Labor, which can be accessed by clicking on the Department of Labor link located on the right.
**Excerpts taken from “Employment Discrimination and EEO Practice Manual for California Employers”, Eighth Edition, Richard J. Simmons, Attorney, Sheppard, Mullin, Richter & Hampton, LLC, Los Angeles, California, Castle Publications Limited, 2005
