Imagine a statute that applies to all employers, whether it has one employee or 5,000 employees. The statute would have no regard to how much revenue the company generates or whether the employer makes a mistake. It would not provide the protections required by law, allowing a person can sue at any time he wants, whether it be one year in the future, five years in the future, a decade or more. Here is an introduction to the statute that does just that: the Uniformed Services Employment and Reemployment Rights Act of 1994, referred to more commonly as USERRA.
USERRA is a federal statute that prohibits discrimination by employers against employees and potential employees based on their military service. Additionally, USERRA places specific obligations on employers that may have employees who are returning to work after a period of military service. It changes the normal “at will” employment relationship that so many companies are used to relying on.
What does the anti-discrimination provision provide?
Employers cannot deny initial employment, retention of employment, promotion, reemployment or any other benefit of employment on the basis of an individual’s membership, application for membership, performance of service or obligation to serve in the uniformed services.
In addition, USERRA provides protections to individuals who have not performed services in the uniformed services if the individual attempts to enforce a protection for any person under USERRA, testifies in connection with a proceeding related to USERRA, assists in a USERRA investigation or exercises a right provided for by USERRA.
What re-employment rights is an individual entitled to?
An individual is generally eligible for re-employment after an absence caused by service in the uniformed services if the following conditions are met.
- The employee gave the employer advance notice (verbal or written) of the service.
- The employee has five years or less cumulative service in the uniformed services during the course of his or her relationship with the employer.
- The employee timely returns to work or applies for reemployment.
- The employee is not separated from service with a disqualifying discharge or other than honorable conditions.
An employee is not required to inform the employer of an intention to seek re-employment following completion of uniformed service. Moreover, even if an employee told an employer that they did not intend to seek re-employment after completing the uniformed service, the employee still has the right to re-apply under the statute.
What are some other important things to keep in mind?
If the employer uses employment contracts that determine seniority based only on actual days of work, the employer must be mindful that USERRA will require that seniority credit be given for any periods of absence that the employee may have as a result of service in the uniformed services.
The statute applies to all employers. The prohibition against discrimination and retaliation applies to hiring halls, potential employers and even positions that are brief, are non-recurring and for positions that are indefinite in nature. The re-employment rights and benefits do not, however, apply to brief, non-recurrent positions of employment.
USERRA also provides protections for returning service members and if the employee’s most recent period of service was more than 30 days, the employee cannot be discharged except for cause for 180 days after the re-employment (if the period of uniformed services was more than 30 days but less than 181 days) and for one year after the date of re-employment if the period of service was more than 180 days. What is cause? Conduct (of which the employee had notice that the conduct amounted to a dischargeable offence) and “other legitimate non-discriminatory reasons, the employee’s job position is eliminated, or the employee is placed on layoff status.”
The statute further provides significant regulations concerning benefits, requiring the employee to receive the seniority and seniority-based rights and benefits that the employee would have had if he had been continuously employed during the period of uniform service leave. If USERRA and the rights and privileges are not on an employer’s radar, or that employer has made sure its contracts or policies comply with USERRA rights, an audit its practices is highly recommended—because the law does not have a statute of limitations and employees and former employees can assert rights under the statute at any time.
