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Questions about USERRA Law and Regulations

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment and benefits of returning military service members of the United States. It stipulates that reemployment be at the level of seniority and with the pay and benefits the employee could have expected to reach had they not left for service. These veterans and members of reserved components may receive assistance from the Department of Labor (DoL) in processing claims under the Act. The Act lays down that individuals may absent themselves from work up to five years and still retain their reemployment rights. Of course, there are exceptions to this rule, including involuntary active duty extensions and recalls. USERRA also protects service members recovering from injuries received during service as well disabled veterans by requiring employers to make reasonable accommodation for their disability. Below are some of the top questions on USERRA answered by Legal Experts.

Can an employer be fined for not rehiring an employee returning from military obligations in the state of Florida?

In such a case, under USERRA, a court may order that the employee, or claimant, be compensated for lost wages or benefits. Any employee meeting the criteria set forth by the Act must be reemployed upon return from uniformed services. The criteria includes: the person held a civilian job and gave notice to the employer (unless giving notice was otherwise impossible); the cumulative service has not exceed five years (there are exceptions to this rule); the person was not discharged dishonorably from service; and finally, the person has reported back to the civilian job within the stipulated time-period (there are fixed time-limits for returning to work based on the time spent in military service).

While the Veterans' Employment and Training Service (VETS) enforces USERRA, an employee may also file a court action directly to enforce his or her rights under USERRA.

My employer did not promote me, stating that my military training made me more of an “order-taker” than a leader. Can I sue for discrimination under USERRA?

You may file a complaint with DoL to enforce your rights under USERRA. However, the courts would base their decision upon facts regarding whether you were as qualified in every way to be promoted as those who got promoted instead of you, and whether the only reason for denying your promotion was your military service. In your particular case, the employer would be at a disadvantage for mentioning your military service and stating that it disqualifies you for promotion to a leadership position. If you produce workplace examples to prove your leadership and performance, they help back your claim for compensation.

I understand that USERRA (section 4316c) says I cannot be discharged without cause for up to one year after returning to work from deployment. Can Reduction-in-Force be considered a cause in Illinois?

The law requires employers to reinstate an employee returning from military service and may even protect such employees from layoffs, unless the employer shows that "circumstances have so changed as to make such reemployment impossible or unreasonable…or such employment would impose an undue hardship on the employer". That is to say, if the company shuts down, you would naturally not be entitled to a job there. More importantly, the law reinstates the returning service member to the same position as if they had not left for military service. If the job would have been cut irrespective of whether you left for military service, you may not have legal recourse.

I work for a non-union company and am considering joining the Washington Army National Guard. Is my employer obliged to give my job back at the same rate of pay?

Your rights should be protected under USERRA. Under the law, a returning service member is entitled to get his or her job back, provided certain obligations are met. In a situation in which the specific job is unavailable, the employer is obliged to reinstate the employee with another job with the same status and pay, seniority, and benefits and rights determined by such seniority had you never left for military service. For more details on your rights under USERRA, visit the Department of Labor website.

I was doing exceptionally well at my new employment by logging 80 hours a week. However, when I informed them that I was called on duty, I was fired. This is despite my resume mentioning that I may have to report for military duty.

While the law protects the right of individuals who are denied employment or terminated for performing military service, the burden of proof to clearly establish the termination was due to the military service lies on the employee. Such cases are primarily determined on the evidence available. In your case, if the employer expressed displeasure immediately after being informed of your call to duty, it could be used as evidence. Any overt expression on the employer’s part that your military service might put your employment status in jeopardy would be admissible evidence. Also, deviation from any employee policies on termination or disciplinary action could potentially be useful evidence. You may note that if the employer has no other reason to terminate you — whether disciplinary or performance-related — that too could serve in your favor.

Enacted to encourage non-career uniformed service members, the USERRA Advisor helps employees called for duty and returning serving members understand their job entitlements and eligibility, remedies under the Act, and employer’s obligations. Employers are required to provide a notice outlining the benefits, rights, and obligations of such employees and employers under the Act. Getting in touch with a legal expert can give you more insight into your rights under USERRA.
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