Uniformed Services Employment and Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides protection to members of the armed forces, National Guard or commissioned corps of the Public Health Services who take a military leave of absence from work. USERRA prohibits discrimination by employers, requires companies to reemploy or return someone to a similar position upon returning from the armed services with seniority as though the person had never left the company, and mandates that benefits and health plans be maintained during the period of service. USERRA applies to private companies (including any companies they may own in foreign countries), state agencies and the Federal Government (although the rules for enforcement may be different).
Discrimination Prohibited by USERRA
USERRA prohibits discrimination against anyone for serving in the armed forces or for taking military leave from a civilian job. This includes any kind of discriminatory action in the areas of hiring, promotion, reemployment, or any other benefit of employment. USERRA also prohibits retaliation against anyone who seeks to enforce their rights under USERRA or assists another in enforcing those rights.
Re-employment Rights Under USERRA
USERRA also requires companies to rehire or reemploy military personnel on return from military leave. In order to qualify for rehire under USERRA, the employee must give advance notice to the employer before military leave or duty unless it is impossible or unreasonable to do so or the service member is prevented by military necessity from doing so.
A person seeking reemployment under USERRA must seek reemployment within certain timeframes. If the military leave was for less than 31 days, USERRA requires the service member to report to the employer the next workday after returning from service (allowing for 8 hours sleep and reasonable time to get home). If the military leave was for more than 30 days but less than 181 days, the service member has 14 days to provide notice. If the military leave was for more than 180 days, the service member has 90 days to provide the notice to return to employment.
In the case of an injury or illness, USERRA gives the service member up to two years (and in some cases longer) to recover before seeking reemployment. A service member who fails to report or reapply for employment or reemployment after military leave within the designated time period does not automatically forfeit entitlement to USERRA rights and benefits – the employer must still apply its general disciplinary policies even if an employee returning from military leave does not provide notice within the deadlines.
There are two exceptions to the re-employment obligation under USERRA. First, if the combined time away from the job for military leaves of absence exceeds 5 years, it will not be protected by USERRA. Second, if the employer can prove that it is impossible, unreasonable or would otherwise cause an undue hardship for it to rehire the employee or that the job was intended to be a short one in the first instance, USERRA protections will normally not apply.
Seniority/Benefits under USERRA
USERRA applies the “escalator principle,” under which a service member is normally entitled to the same seniority and job as though he or she never left employment. There is an exception applicable to circumstances under which the returning service member is not qualified for the job or is unable to handle the job because of injury. Where the service member is not qualified for the position at issue, USERRA requires the company to make reasonable efforts to train or otherwise assist the service member in gaining the necessary qualifications for the position. If this is not possible, USERRA requires the employer to rehire the service member in the nearest comparable position for which the service member is or can become qualified. USERRA also requires an employer to make reasonable efforts to accommodate any disability or injury which occurred or was aggravated during the military leave.
USERRA also entitles a person returning from military leave to any benefits of seniority as though he or she had not left the company for military service. This includes medical and pension benefits which the company must continue to provide while the employee is on military leave, subject to the service member’s obligation to pay premiums for coverage.
For Cause Termination
In many states, including Colorado, employees are considered “at will,” meaning that their employment can normally be terminated for any reason, with or without cause. Under USERRA, however, a company is prohibited from firing a service member without cause for 180 days following a military leave of absence of more than 30 days. If the military leave was for more than 180 days, USERRA prohibits firing the service member without cause for a year after returning to work.
Enforcement of USERRA
In order to enforce their rights under USERRA, aggrieved service members can either file a claim with the Secretary of Defense, or file a lawsuit in court. If a USERRA claim is filed with the Secretary of Defense and the Secretary is unable to assist in securing USERRA rights, the employee can request that the Secretary refer his case to the Attorney General to file a USSERA lawsuit. If the Attorney General refuses to file the USERRA lawsuit, the service member may do so.
If the service member prevails in a USERRA lawsuit, the service member may be entitled to compensation for lost wages or benefits, and even “liquidated damages,” that is, double the amount of any lost wages and benefits, if it is determined that the employer “willfully” violated USERRA. The service member may also be entitled to recover attorney’s fees and costs associated with the USERRA lawsuit.
USERRA does not set forth a specific statute of limitations. Service members, however, are encouraged to promptly pursue any legal remedies.
If you have questions regarding USERRA, please feel free to contact Baird Quinn’s USERRA lawyers. Our Denver labor and employment lawyers are proud to represent members of the Armed Services. You may obtain additional information about our Denver USERRA lawyers at the following link.