Military Service Discrimination (USERRA)

Members of the military – whether active duty, inactive, reservists or veterans – hold a special place in our country and their service deserves our greatest respect. That respect is nowhere more important than in the civilian jobs to which they aspire, the jobs they currently hold and the jobs to which they wish to return following service. Transitions from service to civilian jobs, at times, can be difficult for both employer and the service member. In order to define a service members rights, Congress passed the Uniform Services Employment and Re-Employment Rights Act (“USERRA”) of 1994. This is the most recent of laws protecting military service members that date back to before World War II. The purpose of the law is to encourage non-career service in the military, to minimize disruption to the lives of service members, their employers and fellow employees by providing for prompt re-employment after service, and to prohibit discrimination. Some of the key provisions of the law are listed below.

Virtually all employers are covered under the Act, even employers with as few as a single employee. Also, nearly all service member employees are protected, including prospective employees, current employees, part-time and full-time, and even former employees. However, as with many laws regulating the treatment of employees, independent contractors are not covered. There are few exceptions to protection for service member employees. Two possible exceptions are where an employee has served for five or more years with their employer and cases in which a service member has been dishonorably discharged.

USERRA protects service members from discrimination with regard to any benefit of employment where that discrimination is based upon their past, present or future military service. Benefits of employment is broadly defined to include such things as hiring, retention, promotion, pay, insurance coverage, leave rights, discharge and re-employment. Protection from discrimination also includes protection from retaliation on account of a service member’s opposition to discriminatory practices as well as his or her participation in any investigation under the Act. Moreover, protection from retaliation is not dependent upon whether an employee is actually a service member.

A service member who is deployed is treated as if he or she is on leave or furlough and has all the same rights as any other employee on leave or furlough. While USERRA does not require a service member to be paid while on leave, if other employees receive any benefits while on leave, including such things as leave pay, bonuses and seniority, so will the service member. Other benefits can include the right to continued health coverage if premiums are paid, training and promotional opportunities, pension benefits and FMLA rights. USERRA may not, however, protect a service member from adverse job actions that are not based on service such as might be the case with position eliminations, lay- offs or reductions in force.

The rights to re-employment is one of USERRA’s great benefits for service members; however, this right comes with certain exceptions and demands strict compliance with notice provisions and reapplication timelines that can be confusing and for which service members should seek qualified legal counsel. Generally, however, USERRA provides qualified service members with the right to prompt re-employment with the pre-service employer so long as the cumulative length of service is not more than five years, the service member has not been separated dishonorably or with a bad conduct discharge and re-application is made. Depending on a service member’s length of service, there are strict time requirements that govern when and how re-application for employment must occur. Therefore, service members should plan on re-applying as soon as possible and seek competent legal counsel or a qualified veterans’ assistance organization to help with the process.

Importantly, depending on the length of service, re-employment rights under USERRA include the right to re-employment in what is called the “escalator position;” that is, in the position that the service member would have had (good or bad) had there been no interruption of employment. This means that a service member should receive the same or, depending on length of service, at least a similar job to the one he or she left complete with the same seniority, status and pay. Employers even have the obligation to make reasonable efforts to help service members to qualify for their position if military service has caused them to become deficient in any skills.

USERRA is unique among anti-discrimination statutes in that it includes protection from discharge for certain returning service members. If the period of military service has been more than 180 days, a service member cannot be discharge except “for cause” for a period of one year. If service has been for less than 180 days but more than thirty days, a service member cannot be discharge except “for cause” for a period of six months. This protection is an exception to the employment-at-will status of most employees in Georgia and other states.

Service members who believe their employers have violated USERRA have certain rights. Among these rights is the ability to sue for recovery of damages. USERRA allows for private lawsuits and provides recovery for, among other things, lost wages and benefits, liquidated damages (equal to the amount of lost wages and benefits) for willful violations, reinstatement or other injunctive relief, and attorney’s fees and costs. Moreover, a plaintiff cannot be required to pay any court fees or court costs associated with filing a lawsuit. In addition, service members who believe they have been discriminated against by their employers may seek assistance from the Department of Labor’s Veteran’s Employment and Training Service (“VETS”). Help from VETS can be obtained by accessing their website.

This is just an overview of the many provisions of USERRA. It is a complex law and, given space limitations, it is not possible to cover all of its provisions here. If you are a service member or have spoken out on behalf of service members and believe that you have suffered a violation of the Act, please take the time to call us toll free at (706) 769-4410, send us an e-mail or fill out a consultation request form and we will contact you right away to discuss your situation.