Military, Veterans Military Leave Rights: How USERRA Protects Your Job

  1. The Uniformed Services Employment and Re-employment Rights Act (USERRA) and some state laws help workers take time off for military service without the fear of losing their jobs and seniority. This article will explain how a member of the military can protect their employment rights if they need to take military leave and what to do in the event those rights are violated.

    If you are a member of the military and called for active duty, you may wonder what happens to your current job that you need to leave. There are federal and state laws that provide members of the military with certain employment rights and protections. Some laws provide monetary compensation during absence while others provide the right to get your old job back.

    USERRA – Employment Rights for Military Veterans

    Members of the military, including the National Guard and Reserves, have employment rights which are protected by the federal government through the Services Employment and Re-employment Rights Act (USERRA) of 1994. USERRA applies to employees who are drafted into military service, voluntarily enlist in the military or are current members of the military who are called to active duty. The three essential employment rights that USERRA protects are:
    • Re-employment
    • Freedom from workplace discrimination
    • Freedom from workplace retaliation

    USERRA (38 U.S.C. §§ 4301) requires that employers must allow employees to take time off to serve in the military. It is illegal for employers to discriminate against employees who choose to exercise these rights. All private employers are covered by this law, regardless of size. Employers must inform employees of their rights under the USERRA. More information about your rights under USERRA are available on the US Department of Labor website.

    Right to be Re-Employed or Re-instated

    Employees who take leave to serve in the military are entitled to be reinstated after they return provided they meet the following conditions:
    • The employee was working for the employer at the time he or she was called for active duty
    • The employee must have given reasonable advance notice to the employer prior to taking military leave
    • With a few exceptions, the employee may not have been on military leave for longer than five years
    • The conditions under which the employee left the military must have been no less than a general discharge
    • The employee must apply to be reinstated at work within a reasonable period of time after leaving military service
    • The employee must give the employer reasonable prior notice of intent to return prior to reinstatement

    Seniority Rights and Other Employment Benefits

    Employees who take military leave are entitled to the seniority and benefits they would have had if they not taken military leave. If the military leave is 90 days or less, the employer must employ the employee in the same position the employee would have held as if no leave had been taken. If the military leave is greater than 90 days, the employee must be placed in a position the employee would have received as if there had been continuous employment, including position, seniority, promotions and pay raises. Job promotions and added responsibilities assume that the employee is actually qualified for the new job. If the employee does not have the qualifications for the new job then the employer must provide training to assist the employee qualify. With respect to disabilities, an employer must accommodate a qualified employee with a service-related disability.

    If the employer had a layoff and does not wish to re-employ the employee on military leave, the employer bears the burden of showing that the employee would have been laid off even if leave had not been taken.

    Discrimination Prohibited Against Enlisted Members

    It is possible that a member of the military may find a hostile employer after returning from service to work in their civilian job. An employer may not care for a war and those involved and, for many reasons, may harbor resentment against those serving in the military. Under USERRA, employers are prohibited from discriminating against employees based upon their military service. This includes military service in the past, present and future. As a result of an employee’s military service, the employee cannot be denied:
    • Original employment
    • Re-employment
    • Job promotions
    • Employee Benefits
    • Retention of employment

    Employers are also prohibited from retaliation against employees who file a complaint under USERRA, including any assistance an employee might provide in assisting a third party complaint or investigation concerning the employer.

    State Laws and Payment Supplements

    In addition to USERRA, nearly every state has also enacted state law regarding discrimination against those in the military or National Guard. State laws usually additional protections and benefits to USERRA. Some states require public (not private) employers to pay employees during their military service, usually for a few weeks. Some states also require that these benefits for leave cover military training, in addition to active service.

    The Family and Medical Leave Act (FMLA)

    If you are a family member of someone who is or was active in the military, the law may provide you with the ability to take time off from your job to help your family. The Family and Medical Leave Act (FMLA) is a federal law that provides medical and family leave to eligible employees and military families. Employees can take time off to deal with family matters that may arise as a result of the family member’s active duty as well as to care for a returning family member who was injured while on active duty.

    Filing a Complaint, Enforcement of Military Rights

    If a veteran or member of the military believes that his or her rights were being violated, a complaint can be made at a local office for the United States Department of Labor, Veterans’ Employment & Training Service (VETS.) Typical remedies provided by the Department of Labor include:
    • Reinstatement at your job
    • Recovery of back pay and lost benefits
    • Retroactive instatement of seniority and promotions
    • Adjustments of pensions
    • Corrections made to personnel files
    Legal Topics:
    Military Benefits

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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