USERRA: A comprehensive guide for businesses and service members

Introduction

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law passed in 1994 that protects the job rights of military service members and veterans. The law ensures that service members can retain their civilian employment and benefits after they are called to active duty.

USERRA applies to all employers in the United States, both public and private. It covers all uniformed services, including the Armed Forces, the Reserves, the National Guard, and the Public Health Service.

The key provisions of USERRA include:

• The right to be reemployed in the same or a similar position with the same pay, benefits, and seniority as before military service.

• The right to be restored to any promotions or raises that would have been received if the service member had not been absent from work.

• The right to be reinstated even if the employer has downsized or reorganised since the service member left.

• The right to be free from discrimination based on military service.

USERRA also provides for a number of exceptions to these rights. For example, employers are not required to reemploy service members who are separated from service for misconduct or who are unable to perform the essential functions of their job due to a disability.

If you believe that your USERRA rights have been violated, you can file a complaint with the Department of Labor's Veterans' Employment and Training Service (VETS). VETS will investigate your complaint and, if it is found to be valid, will attempt to resolve the matter with your employer.

For more information about USERRA, you can visit the VETS website at https://www.dol.gov/agencies/vets/programs/userra.

Here is a brief history of USERRA:

• The first federal law protecting the job rights of military service members was passed in 1940. This law, the Selective Training and Service Act, was repealed after World War II.

• In 1970, Congress passed the Veterans' Reemployment Rights Act (VRRA). This law was amended several times in the years that followed, but it still did not provide adequate protection for service members.

• In 1994, Congress passed USERRA, which replaced the VRRA. USERRA is a much stronger law that provides comprehensive protection for the job rights of military service members.

Here are some of the key provisions of USERRA:

• Service members are protected from discrimination based on their military service.

• Service members are entitled to be reemployed in their former position or a similar position with the same pay, benefits, and seniority.

• Service members are entitled to be reinstated even if their employer has downsized or reorganized since they left.

• Service members are entitled to be free from retaliation for exercising their USERRA rights.

USERRA is an important law that protects the job rights of military service members. If you are a service member or veteran, you should be aware of your USERRA rights and be prepared to exercise them if necessary.

Key Provisions

Here are the key provisions of USERRA, with additional context:

• Right to be reemployed in the same or similar position: Service members are entitled to be reemployed in the same or a similar position with the same pay, benefits, and seniority as before military service. This includes any promotions or raises that the service member would have received if they had not been absent from work.

• Right to be restored to any promotions or raises that would have been received: Service members are entitled to be restored to any promotions or raises that they would have received if they had not been absent from work. This includes any raises that were given to other employees during the service member's absence.

• Right to be reinstated even if the employer has downsized or reorganised: Service members are entitled to be reinstated even if their employer has downsized or reorganised since they left. This means that the service member must be given the opportunity to return to their former position, even if the employer has eliminated that position.

• Right to be free from discrimination based on military service: Service members are protected from discrimination based on their military service. This means that employers cannot refuse to hire, fire, or otherwise discriminate against service members because of their military service.

• Right to be free from retaliation for exercising USERRA rights: Service members are protected from retaliation for exercising their USERRA rights. This means that employers cannot take any adverse action against a service member because they have exercised their USERRA rights, such as filing a complaint with the Department of Labor.

USERRA also provides for a number of exceptions to these rights. For example, employers are not required to re-employ service members who are separated from service for misconduct or who are unable to perform the essential functions of their job due to a disability.

If you believe that your USERRA rights have been violated, you can file a complaint with the Department of Labor's Veterans' Employment and Training Service (VETS). VETS will investigate your complaint and, if it is found to be valid, will attempt to resolve the matter with your employer.

For more information about USERRA, you can visit the VETS website at https://www.dol.gov/agencies/vets/programs/userra.

Examples in Court

Let’s look at some examples of how USERRA has been applied in court cases:

• Most recent: In 2023, a federal court in Florida ruled in favor of a former Army reservist who was denied a promotion after returning from active duty. The court found that the employer had violated USERRA by failing to reemploy the reservist in the same or a similar position with the same pay, benefits, and seniority.

• Most high-profile: In 2009, the Supreme Court of the United States ruled in favor of a former Marine who was fired from his job after returning from active duty. The court found that the employer had violated USERRA by firing the Marine for engaging in protected military activities, such as attending military training and making military travel arrangements.

• Other notable cases:

  • In 2012, a federal court in California ruled in favor of a former Air Force reservist who was denied a raise after returning from active duty. The court found that the employer had violated USERRA by failing to restore the reservist to any promotions or raises that he would have received if he had not been absent from work.

  • In 2013, a federal court in New York ruled in favor of a former Army reservist who was denied a job because of his military service. The court found that the employer had violated USERRA by discriminating against the reservist on the basis of his military service.

These are just a few examples of how USERRA has been applied in court cases. The law has been used to protect the job rights of military service members in a variety of situations, and it continues to be an important tool for ensuring that service members are not discriminated against in the workplace.

Business Impact of the Law

USERRA has a number of impacts on businesses, including some pros and cons.

Pros:

• USERRA can help businesses attract and retain top talent. Service members are often highly skilled and motivated, and they can bring a unique perspective to the workplace.

• USERRA can help businesses comply with federal law. The law is clear and comprehensive, and it provides businesses with a roadmap for complying with its requirements.

• USERRA can help businesses avoid costly legal disputes. If a business violates USERRA, the service member may be able to file a lawsuit against the business. These lawsuits can be expensive and time-consuming, and they can damage the business's reputation.

Cons:

• USERRA can be a burden for small businesses. The law can be complex and time-consuming to comply with, and it can be difficult for small businesses to afford to hire lawyers to help them comply.

• USERRA can make it difficult for businesses to downsize or reorganize. If a business needs to downsize or reorganize, it may have to lay off service members who are absent on military duty. This can be a difficult decision for businesses, and it can lead to legal disputes.

• USERRA can be abused by some service members. Some service members may try to use USERRA to take advantage of their employers. For example, they may try to take extended periods of leave for military training or service, or they may try to get their jobs back after being fired for misconduct.

Overall, USERRA has both positive and negative impacts on businesses. Businesses should carefully consider the law's requirements when making decisions about hiring and retaining service members.

Here are some tips for businesses on how to comply with USERRA:

• Educate yourself about the law. The Department of Labor's website has a lot of information about USERRA, including a fact sheet and a video.

• Develop a plan for complying with the law. The plan should include procedures for notifying service members of their rights, tracking their military service, and reemploying them after they return from military service.

• Be proactive. Don't wait until a service member returns from military service to start thinking about how to comply with USERRA. Start planning early so that you can avoid any surprises.

Additional Resources

Here are some resources where you can find more information about USERRA:

• Department of Labor's website: https://www.vaforvets.va.gov/vaforvets/docs/USERRA-OCHCO-Fact-Sheet.pdf])

• Department of Labor's video on USERRA: https://www.youtube.com/watch?v=BzPPQN4lv18

• Department of Justice's website on USERRA: https://osc.gov/Services/Pages/USERRA.aspx

• Office of Special Counsel's website on USERRA: https://osc.gov/Services/Pages/USERRA-Enforcement.aspx

How Businesses Can Comply with USERRA

Take a look at the below examples of how businesses can comply with USERRA:

Fictional Example 1:

• Business: A small accounting firm in New York City with 10 employees.

• State law: New York State does not have any laws that specifically address USERRA compliance.

• How the business can comply: The business can comply with USERRA by educating itself about the law, developing a plan for complying with the law, and being proactive.

• Specific steps the business can take:

  • The business can educate itself about USERRA by reading the Department of Labor's fact sheet on USERRA.

  • The business can develop a plan for complying with USERRA by creating a policy on military leave and reemployment.

  • The business can be proactive by notifying employees of their USERRA rights and tracking their military service.

Fictional Example 2:

• Business: A large manufacturing company in California with 1,000 employees.

• State law: California has a law that requires employers to provide up to 12 weeks of unpaid military leave to employees who are called to active duty.

• How the business can comply: The business can comply with USERRA and California law by providing employees with up to 12 weeks of unpaid military leave. The business can also educate itself about the law, develop a plan for complying with the law, and be proactive.

• Specific steps the business can take:

  • The business can educate itself about USERRA and California law by reading the Department of Labor's fact sheet on USERRA and the California Employment Development Department's fact sheet on military leave.

  • The business can develop a policy on military leave and reemployment that complies with USERRA and California law.

  • The business can be proactive by notifying employees of their USERRA and California military leave rights and tracking their military service.

These are just a few examples of how businesses can comply with USERRA. The specific steps that a business needs to take will vary depending on the size of the business, the state in which the business operates, and the specific circumstances of each employee's military service.

If you have any questions about how to comply with USERRA, you should contact the Department of Labor's Veterans' Employment and Training Service (VETS). VETS can provide you with more information about the law and help you develop a plan for complying with its requirements.

What Are Your Thoughts?

Do you think businesses are doing enough to comply with USERRA? Share your thoughts on social media with the hashtag #theindustryleader.

We would love to hear your thoughts on how businesses can better comply with USERRA and how the law can be improved. Share your thoughts on social media and help us spread the word about this important law.

Here are some specific things you can share on social media:

• Your own experiences with USERRA, either as an employee or an employer.

• Your thoughts on how businesses can better comply with the law.

• Your suggestions for how the law can be improved.

Use the hashtag #theindustryleader to help us spread the word about this important law.

Everything you need to know about USERRA

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