Uniformed Services Employment and Reemployment Rights Act (USERRA)

According to the Uniformed Services Employment and Reemployment Rights Act (USERRA), reemployment timelines are directly tied to the duration of military service. For service periods ranging from 31 to 180 days, service members are required to report back to work or submit a reapplication within 14 days. For those whose service extends beyond 180 days, a 90-day window is provided for reporting or reapplication. In circumstances where reporting back within these timeframes proves to be impossible or unreasonable due to no fault of the service member, extensions may be granted. While reapplication requests can be verbal, it's highly recommended to submit these requests in writing to mitigate potential disputes and documentation issues. Failing to meet USERRA's deadlines doesn't strip a service member of all protections under the act. Nonetheless, employers may treat any delays in reporting back to work akin to any other instance of unauthorized absence, as outlined under USERRA guidelines for addressing military discrimination. For service durations shorter than 31 days, service members are expected to resume their employment at the start of the next full day of their regular work schedule following their service, no later than the first full calendar day thereafter. Should the service period exceed 30 days, employers have the right to request documentation proving that the service member's application for reemployment is timely, as per USERRA's stipulations

Under the protections offered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees returning to their civilian jobs after serving in the military are guaranteed to reclaim their previous seniority level, along with all associated rights and benefits. This assurance includes any advancements in position or benefits they would have earned had their employment been uninterrupted. The law clearly states that time away for military duties does not count as a break in their employment history.

This encompasses both employer-provided rights and benefits and those mandated by law. For example, a service member returning to civilian work may qualify for leave under the Family and Medical Leave Act of 1993. This eligibility hinges on whether the total months and hours they were employed, combined with the hypothetical months and hours they would have been employed during their military service, satisfy the FMLA's eligibility criteria. Upon reemployment, the position offered should accurately mirror the salary, benefits, seniority, and other job perks the employee would have enjoyed if their service hadn't interrupted their career. Moreover, the aspects of an employment position such as seniority, status, and salary must also consider any adjustments made by a collective bargaining agreement. While serving in the uniformed services, an employee is considered to be on furlough or leave of absence, ensuring they're entitled to the same non-seniority rights and benefits as other employees in similar positions who are on leave, maintaining a seamless integration between their military status and civilian careers.

Breaches of the Uniformed Services Employment and Reemployment Rights Act (USERRA) can lead to a range of remedies, both financial and corrective. Financial compensation can cover anything from unpaid wages and benefits, including vacation time or pension plans, to double damages for intentional infringements. On the corrective side, remedies might involve directives for employers to adhere to USERRA guidelines, reinstatement orders ensuring no loss as though the adverse employment event never occurred, and various forms of legal injunctions to enforce compliance or penalize violations. Specifically, when an employer intentionally flouts USERRA provisions—acting with knowledge or reckless indifference—the affected service member may be awarded double the financial harm they suffered. It falls upon the service member to demonstrate the employer’s willful non-compliance, as illustrated in the case Stitsworth v. Forest River, Inc., 2023 U.S. Dist. LEXIS 217891. Additionally, USERRA claims are not constrained by a statute of limitations, offering veterans the flexibility to pursue justice without concern for timing Leave Law (Federal).

The Uniformed Services Employment and Reemployment Rights Act (USERRA) outlines three distinct remedies under federal law to protect servicemembers' employment rights. Firstly, injunctive relief is available, compelling adherence to USERRA's requirements, as highlighted in the case Lovell v. Consol. Edison Co. of N.Y., Inc., 758 Fed. Appx. 222. Secondly, for losses incurred due to an employer's non-compliance, compensation for lost wages and benefits is provided. The third remedy involves liquidated damages, effectively doubling the compensation for lost wages and benefits in instances of deliberate non-compliance with USERRA, as seen in Lovell v. Consol. Edison Co. of N.Y., Inc., 758 Fed. Appx. 222, within the scope of Discrimination, Harassment, and Retaliation (Federal). Moreover, successful claimants may also be awarded reasonable attorney's fees, expert witness fees, and other costs related to litigation under Discrimination, Harassment, and Retaliation (Federal). Additionally, the court has the authority to prevent individuals from enforcing discriminatory policies in the future and to mandate compensation for any financial damages suffered.

Under the provisions of USERRA, an employee forfeits their right to reemployment if their departure from military service is deemed dishonorable. This forfeiture occurs if the individual receives a discharge due to dishonorable or bad conduct, or if their separation is classified as under conditions other than honorable, according to the rules that govern military service. Moreover, the reemployment protections are nullified for commissioned officers who are expelled following a general court-martial's verdict, a commutation of such a sentence, or by a presidential order during wartime. Additionally, commissioned officers lose eligibility for reemployment if they are removed from the military register for being AWOL for three months or more, if they are separated following a court-martial's decision to confine, or if they are sentenced to time in a federal or state prison or correctional facility.

In accordance with federal law in the United States, specifically the Uniformed Services Employment and Reemployment Rights Act (USERRA), it's unlawful for employers to exhibit discrimination against employees or potential hires due to an individual's past history or current involvement in various types of military service. This prohibition is detailed in 38 USCS § 4311, which clarifies that an employer's actions are deemed discriminatory if a person's military service influences the employer's decision, except in cases where the employer can demonstrate that the same decision would have been made regardless of the individual's military service status. Discrimination towards individuals in the uniformed services, as well as retaliation against them, is forbidden. This statute encompasses both reservist and active-duty military personnel, as evidenced in Alves v. City of Gloucester, 2019 U.S. Dist. LEXIS 8924. Nonetheless, judicial interpretations have clarified that USERRA is not breached by an employer who denies certain employment benefits due to an employee's service-connected disability, as seen in Kelly v. Omaha Pub. Power Dist., 604 F. Supp. 3d 800. Moreover, to pursue a successful claim of military service-based discrimination, an employee must identify an applicable remedy available to them.