USERRA

Military people are the salt of our nation. They are the people who make it possible for us to breathe in freedom and safe environment. But discrimination is something that doesn’t spare even the civilians who at times give their lives to provide military protection to the nation against treacherous forces. This discrimination is more strikingly apparent when it comes to hiring someone for a job or maintaining the employment. USERRA is a provision in the US law that provides protection to the military service people against such discrimination.

What is USERRA?

USERRA is the abbreviation of the term Uniformed Services Employment and Reemployment Rights Act which was brought to force in the year 1994. It is an important part of US government’s anti-discrimination policies. This law provides protection against military discrimination to service men and service women. It protects the employment rights of the civilians who have to take a voluntary or involuntary leave from employment to for the purpose of serving in the U.S. military. This act also forbids their employers from practicing any kind of discrimination against members of the uniformed services.

According to this act, any individual who has any kind of relation with the armed forces cannot be denied of employment, re-employment after a leave, retention in the current employment, a chance for promotion, or any other similar benefit by an employer.

Thus the purpose of USERRA is to provide protection to those persons who are:

• Present members of the civilian services
• Have applied for a membership of the uniformed services
• Were members of the uniformed service previously
• Have obligation to perform in a uniformed service

What are the conditions for the USERRA to be effective for reemployment?

For an individual to get the protection under this act, it is necessary that certain conditions are met. According to USERRA any worker to takes a leave for the purpose of joining his duties under the military service is entitled to be re-employed if:

• The overall period of the leave does not exceed 5 years
• The person has provided proper notice to his employer about the leave in advance
• Depending on the length of the military service of the civilian, he/she must report back or submit an application for re-employment within the prescribed period.

Under which conditions USERRA provides protection against discharge?

The USERRA provides protection against discharge from service to the civilian members. If an individual is reemployed after a leave of more than thirty days, s/he is offered legal protection from being discharged from the employment.

This period of protection is based on his/her length of service. If someone has served for one year or more, then s/he is protected from being terminated from the employment following the reinstatement for a period of one year. The employer is obligated to provide a proof of a legitimate reason in case he decides to terminate the service of the service member before this stipulated period.

USERRA – Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act of 1994 otherwise known as USERRA is Federal Law enacted under President Bill Clinton. USERRA superseded the Veteran’s Reemployment Rights Act and provides further protections for civilian employees who serve or have served for the armed forces.

Generally, USERRA provides service men the retention of employment rights for up to five years while they are deployed. USERRA, as the American with Disabilities Act (ADA) also require employers to accommodate a disability that resulted from injuries received during duty.

USERRA requires compliance from all employers in the United States. This includes all branches of government including, Federal, State, Local, Private and even Foreign Companies operating within the United States and all U.S. employers conducting businesses in foreign countries

The law also provides that a returning service-person is to be reemployed in the job that they would or could have attained had they not been absent from their job due to their military service, with the same benefits, seniority, status, and pay. USERRA also requires that reasonable efforts for training and education be made to enable a returning service person to learn or enhance their skills to help qualify them for reemployment in the civil world.

Most litigation of USERRA claims is handled in Federal Court and pertain to the anti-discrimination provisions of USERRA. Indeed, USERRA protects service men from being discriminated when they are deployed or deployable. For instance, an employer may not discriminate against a reservist who, because of his military duties, inconveniences his or her employer for not having enough face time at work, or for inconveniencing the employer’s schedule. This includes discrimination in the form of a hostile work environment, hiring, re-hirings and promotions.

The laws under USERRA are very technical and require careful compliance by the service persons in order for them to be enforceable. If you have a USERRA question or issue it is very important to contact an experienced attorney for guidance and advice. A lawyer who has a track record in litigating USERRA claims and who is board certified in labor and employment law is your best bet in choosing the proper attorney.

Maurice Arcadier, Esq. managing partner of Arcadier, Biggie & Wood, PLLC has experience in USERRA cases and is board certified by the State of Florida as a labor and employment law attorney.