Has Your Employer Violated USERRA? What You Need to Know About Your Rights as a Service Member

If you’ve ever wondered whether your civilian employer is treating you fairly regarding your military commitments, you are not alone. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law designed to protect your employment rights when you serve or are called to serve in the military. However, many service members face challenges understanding whether their employer’s actions are within the bounds of the law. Let’s break down what USERRA is and whether your employer may be violating your rights.

What Rights Does USERRA Protect?

Reemployment Rights: If you leave your civilian job to serve in the military, USERRA requires your employer to reemploy you in your civilian job when you return, provided certain conditions are met.

Protection from Discrimination: USERRA prohibits discrimination against individuals based on their military service. Employers cannot refuse to hire, rehire, retain, or promote you because of your service obligations.

Employee Obligations Under USERRA

To be protected by USERRA, employees must meet certain obligations:

1. Provide Advance Notice to Employer: You must provide your employer with advance notice of your military service, either in writing or verbally. The notice should be given as early as possible unless military necessity prevents it or it is otherwise impossible or unreasonable.
2. Cumulative Service Limit: Your cumulative length of service while employed by a specific employer must not exceed five years. There are some exceptions to this rule, such as required training or involuntary extensions of active duty.
3. Timely Return to Work: After completing your military service, you must return to work or apply for reemployment within a specified time frame based on the length of your military service:
   • Service of 1-30 days: You must report back to work by the beginning of the first regularly scheduled work period after the completion of service, allowing for safe travel and an eight-hour rest period.
   • Service of 31-180 days: You must apply for reemployment no later than 14 days after the completion of service.
   • Service of 181 days or more: You must apply for reemployment no later than 90 days after the completion of service.
   • Injury or Illness: If you are hospitalized or convalescing due to an injury or illness from service, the reporting or application deadlines are extended for up to two years.

Possible Violations of USERRA by Employers

Here are some common scenarios that may indicate a violation of USERRA by your employer:

1. Denial of Reemployment After Military Service
   • After completing your military service, you have the right to return to your civilian job, assuming you meet the reemployment requirements under USERRA. If your employer denies your reemployment without a valid reason, this may be a violation.
   • The conditions you must meet include giving prior notice of your military leave, ensuring that the cumulative length of your service does not exceed five years (with certain exceptions), and returning to work or applying for reemployment within the required time frame.
2. Discrimination or Retaliation Based on Military Service
   • Your employer cannot discriminate against you because of your past, present, or future military service. This includes not just hiring decisions, but also any adverse employment actions like demotion, salary reduction, or unfavorable job assignments.
   • If your employer treats you differently after learning of your military obligations, such as denying you a promotion that you are qualified for, this could potentially violate USERRA.
3. Denial of Benefits During Military Leave
   • While on military leave, USERRA requires that you be treated the same as other employees on similar types of leave. If your employer offers benefits to employees on other kinds of leaves—such as unpaid personal leave—but refuses to provide those benefits during your military leave, that may be discriminatory.

Steps to Take If You Believe Your Employer Is Violating USERRA

If you suspect your rights under USERRA have been violated, there are a few steps you can take:

1. Document Everything: Keep a record of communications with your employer, including emails, written notices, and any relevant documents. Document the dates of your military service, notices given to your employer, and any issues you’ve faced.
2. Contact Your Employer: Sometimes, the violation might be due to a misunderstanding. Consider talking with your employer or HR department to explain your rights under USERRA and attempt to resolve the issue.
3. Seek Legal Assistance: If your concerns aren’t resolved internally, you may need legal help. An attorney who has experience with the military and employment law can help evaluate your situation and determine whether your rights have been violated.
4. File a Complaint with DOL-VETS: You may also contact the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS). VETS can investigate complaints and help enforce your USERRA rights if necessary.

• Consider Legal Action in Court: Alternatively, you can file a lawsuit in federal court. USERRA allows you to pursue your rights with the assistance of an attorney, and successful claims can include compensation for lost wages, benefits, and attorney’s fees — paid by your employer.

Conclusion: Know Your Rights

USERRA was designed to ensure that serving your country does not come at the cost of your civilian career. If your employer is acting in a way that makes you feel unsupported or penalized for your service, they may be violating federal law. You have the right to protect your job, your career progression, and your benefits while serving.

If you have questions about your situation or believe your employer may have violated USERRA, it can be helpful to consult with an attorney who understands military service employment rights. Navigating these issues can be complicated, but you don’t have to face them alone.

Reach out if you need assistance—we’re here to protect your rights and ensure your civilian employment remains secure while you serve.  As a U.S. Army veteran, former reservist and lawyer, I’d be thrilled to help you navigate this terrain.