Uniformed Services Employment & Re-Employment Rights Act (USERRA)
When Congress passed USERRA in 1994, after the first Gulf War, it sought to minimize the disadvantages to workers that occur when absence from civilian employment is required to serve in the armed forces. The intent of the law is to encourage non-career, uniformed service so that Americans can continue to enjoy the protections offered by a military staffed with qualified people. The law further seeks to balance the needs of the workers with the needs of the employers who depend on them.
- The Uniformed Services Employment and Reemployment Rights Act (USERRA) explains and strengthens the Veterans' Reemployment Rights (VRR) Statute, which protects the rights of returning service members to civilian employment and lengthens the time a service member can be absent from work because of family or medical leave.
- USERRA covers every individual who serves in or has served in the uniformed services that are federal or non-federal employees.
- Employers are required to reemploy an employee who was on military leave unless the employer can prove that it would be impossible or unreasonable to reemploy that person.
- Limits for returning to work depend on the length of the person's military service.
- Fitness exam: The person must return to work by the first shift that would start eight hours after the person returns home from the fitness for service examination.
- Service of 1-30 days: The person must return to work by the first shift that would start eight hours after the person returns home from service.
- Service of 31-180 days: The person must submit an application for reemployment by the 14th day after the person returns home from service; the employer may require the employee to submit proof that:
- The application for leave was timely.
- The 5-year service limit was not exceeded.
- The separation from service was not under circumstances specified under section 4304 of USERRA, which states four circumstances when a service member would be disqualified from active service. They are:
- A dishonorable or bad-conduct discharge.
- An other-than-honorable conditions discharge.
- A dismissal involving a court martial or by order of the President in time of war.
- Dropping an individual from the rolls when the individual has been absent without authority for more than three months or who is imprisoned by a civilian court.
- Service of 181 or more days: An application for reemployment must be submitted no later than 90 days after completion of service, and the employer may require the same proof as required when the employee has been in service for 31-180 days.
- Injury or illness occurring or aggravated during a period of service: An application for reemployment may be submitted up until 2 years after the injury.
- USERRA requires service members to give written or verbal notice to their employers if it is possible for them to do so.
- USERRA does not require employers to pay employees during military leave.
Filing Requirements and Limitations:
- There is no pre-filing requirement, although the employee can make a claim through the Department of Justice.
- USERRA contains no express statute of limitations. Most courts hold that a 4-year limitation period applies.
Remedies and Damages:
- Remedies and damages can be acquired by two ways:
- Administrative route - US Department of Labor, VETS; remedies include:
- Return to a job
- Back pay.
- Lost benefits.
- Corrected personnel files.
- Lost promotional opportunities
- Retroactive seniority.
- Pension adjustments.
- Restored vacation.
- Litigation route - remedies include:
- Everything included in the administrative remedy list.
- Liquidated damages.
- Attorney's fees.
- Expert witness fees.