In a democracy with a volunteer armed services, the goal is for citizen-soldiers to serve when needed, and then return to their civilian lives and careers. Employment law specific to service members helps protect this right to both serve and return to civilian life without penalty. USERRA is the acronym for Uniformed Service Employment and Reemployment Act. This federal law is designed to detail responsibilities and protect rights of both service members and civilian employers.
USERRA covers employment rights and responsibilities for those in the Armed Forces, the Reserve component of the Armed Forces, the National Guard, and during times of need or national emergency, members of the National Disaster Medical System and the uniformed branch of the Public Health Service. Employment rights under this law include the right to be reemployed after a return from military service to the same or a similar job. The law prohibits discrimination in job actions based on previous or future military service.
Service Member Rights and Responsibilities
Returning service members are, first and foremost, protected from discrimination in job actions when that discrimination exists because of the service. This protection exists under law for the length of the working life. It does not specify that an employer-employee relationship needs to pre-date service.
As an example, a veteran who served in the past cannot be denied employment based on the idea that veterans have more problems, or need more health care coverage. A person who remains in the Reserves or the National Guard cannot have their promotion potential restricted, under the idea that they may be called away to serve again. A veteran who returns from service with a disability can still return to work.
Job actions protected under USERRA include:
- initial employment
- right to health insurance
- work environment and conditions
Several issues related to reemployment are frequent sources of conflict and misunderstanding. The job protection and reemployment rights are to a job that the returning veteran would have had without the service. For example, standard promotions within the service period should accrue for the returning veteran, as well as benefits of seniority and status. The returning service member does not return to the same job they left, but to the job they would have had if they had stayed. They do not need to work their way back up, or start from the beginning again with job actions.
Work environments and conditions are a frequent issue when employers scramble to find a job for a returning veteran under USERRA. A returning service member might be offered the only job available, with the promise that he or she will be moved into their old position as soon as possible. The job available has significantly different pay, benefits, or working environment, such as the night shift, or a traveling position. This is restricted under USERRA. Employers have had time to make the necessary arrangements.
Service members have responsibilities to:
- inform employers of dates of service and expected return
- inform employers if they want to continue their health insurance for up to 24 months during their service
- inform upon return if any medical conditions resulting from service will necessitate a change in employment conditions
Employer Rights and Responsibilities
Employers have both rights and responsibilities as well, and the law is design to prevent hardship for businesses or employers of serving citizens. One of the responsibilities of employers is to notify the workforce of their rights and responsibilities under USERRA using materials from the Department of Labor. Employers must plan for the protected job needs of service members, and they are prohibited from discrimination based on possible, actual, or future military service. In addition, they are prohibited from retaliation against anyone who files a grievance based on USERRA.
Employers do not have to offer returning service members their jobs under the USERRA-detailed conditions if the military service lasts longer than five years, or if the returning member is discharged under conditions other than honorable. In addition, the responsibility falls to service members to keep employers informed of planned return dates, and to return to work in a reasonable time frame after discharge from active service.
A frequent issue of conflict occurs when a returning service member does not return to work in a timely manner, or does not inform the employer of the expected return. How long the returning vet has before reporting back to work depends on how long they served, but should never be longer than 90 days.
Disability Incurred During Service
Military and other types of uniformed service are dangerous, and for many returning service members, disability incurred during service complicates their return to civilian life. Disability does not change the protections under USERRA, or employer’s responsibilities. Specific guidelines from the Department of Labor are that employers much make a good-faith effort to accommodate the disability and return the veteran to the same job, with the same seniority, status, and pay. If the disability means the person cannot perform the job with accommodation, a job they can do with equal seniority, status, and pay should be offered. If the disability is of such severity that ability is significantly restricted, a good faith effort to find a job that is as close to the previous will be found and offered.
Employer sponsored health insurance does not need to pay for health care needs resulting from service-connected injury, but it will continue or be offered to returning members without penalty for service. This includes a restriction on significant cost-increases.
USERRA is one of the most comprehensive job action protections under the law, but like all laws, it is only effective when all involved are held to account. The law allows for mediation when conflict occurs, and government resources are available for both employers and returning service members. A critical first step to avoid conflict is to initiate communication as soon as possible upon a return, and to keep copies of all communication and other documentation, such as dated letters of intent to return to work.
If, despite communication and efforts at mediation, job action discrimination has occurred, an attorney experienced in employment law and issues involving returning veterans can offer recommendations, support, and advice on next steps.
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