Uniform Services Employment and Reemployment Rights

Under the Uniform Services Employment and Reemployment Rights Act ("USERRA") a person's entitlement to benefits under this statute terminates upon separation from uniformed service under less than honorable conditions. (38 U.S.C. s. 4304)

A person who has an obligation to perform service in a uniformed service cannot be denied initial employment, reemployment, retention in employment, promotion or any benefit of employment on the basis of that obligation. This statute also prohibits retaliation against someone who takes steps to oppose such discrimination. (38 U.S.C. s. 4311)

Employees are required to provide their employers with advance notice of military service unless military necessity prevents the giving of notice. (38 U.S.C. s. 4312(a)(1)&(b))

Employees returning from service in the armed forces, the reserves or the National Guard after absences of five years or less (with certain exceptions) and who have been honorably discharged are entitled to reinstatement depending on their length of service. Reemployment is not required if the employer can demonstrate that the employer's circumstances have so changed as to make reemployment impossible or unreasonable or would impose an undue hardship. (38 U.S.C. s. 4312)

If the returning employee was disabled while in the service, the employee must be offered another job of comparable seniority, status and pay and the deadline for reporting to work may be extended for up to two years. (38 U.S.C. s. 4312(e)(2))

For persons entitled to reemployment, the statute provides that they shall be promptly reemployed in accordance with a specified order of priority. (38 U.S.C. s. 4313)

For persons entitled to reemployment by the Federal government or certain Federal agencies, there are further specified procedures. (38 U.S.C. ss. 4314 & 4315)

Employees who take a military leave of absence also are entitled to: retain and accrue benefits tied to seniority, elect and pay for continued health care coverage, and participate during the leave in insurance and other benefits not determined by seniority to the same extent as employees granted other types of leave. (38 U.S.C. ss. 4316-4318)

A person who is reemployed by an employer shall not be discharged from such employment, except for cause - within one year after the date of such reemployment if the person's period of service before the reemployment was more than 180 days; or within 180 days after the date of such reemployment if the person's period of service before the reemployment was more than 30 days but less than 181 days. (38 U.S.C. ss. 4316(c))

A person who believes that his/her employer has violated this Statute can file a complaint with the U.S. Department of Labor at this website. (38 U.S.C. s. 4322)

A person may instead commence an action for relief with respect to a complaint against a State (as an employer) or a private employer in a U.S. District Court (38 U.S.C. s. 4323) or with the Merit Systems Protection Board with respect to a Federal employer (38 U.S.C. s. 4324).

A U.S. District Court can order reinstatement and can award damages for any loss of wages and benefits and an equal amount as liquidated damages if the violation is determined to be willful. (38 U.S.C. s. 4323(d))

A finding of willfulness requires something more than merely showing that an employer knew about the statute and its potential applicability in the workplace. Where an employer engaged in reasonable, good-faith efforts to determine that its actions complied with the statute, a finding of willfulness is inappropriate even though the employer's actions in fact violated the statute. Instead, it must be shown that the employer acted with reckless disregard of, or deliberate indifference to, the employer's statutory obligations. Fryer v. A.S.A.P. Fire & Safety Corp., Inc., 658 F.3d 85, 91-92 (1st. Cir. 2011)

The Merit Systems Protection Board can order reinstatement and can award damages for any loss of wages and benefits and reaspmab;e attorney's fees, expert witness fees and other litigation expenses. (38 U.S.C. s. 4324)

The U.S. Supreme Court recently ruled that this Statute gives returning veterans the right to reclaim their prior jobs with State employers and authorizes suit if those employers refuse to accommodate them. The States cannot invoke sovereign immunity as a legal defense. Torres v. Texas Department of Public Safety, 597 U.S. 580, 142 S.Ct. 2455 (2022)