Do You Need a Military Leave Lawyer?
As an employee, have you faced retaliation for taking military leave?
- Was your old job "taken" when you returned from active duty?
- Did your boss use your PTSD as an excuse to take you off the fast track?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that guarantees reemployment rights to returning veterans and other members of uniformed services. When you leave your civilian job for military service, you are entitled to return to the same job with accrued seniority if you've satisfied USERRA's requirements.
Also, if you suffer an injury or disability during service — or if you aggravate an existing disability — your employer must provide “reasonable accommodations" that will allow you to continue doing your former job. If that’s not possible, the employer must find you a comparable position.
USERRA is one of the most powerful and employee-friendly laws on the books. If you have been treated unfairly because of your military service, USERRA may help you get what you deserve.
Important statutes in this area of law:
Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited; reemployment rights of persons who serve in the uniformed services; rights, benefits, and obligations of persons absent from employment for service in a uniformed service
Employment benefits and protection; leave requirement ; prohibited acts
Notable TELG cases in this area of law:
The MSPB ordered that the documents and witnesses the plaintiff requested were relevant, and that the agency had to produce them.
A federal appeals court laid down a favorable analytical approach for victims of discrimination based on their military service.
The attorneys at The Employment Law Group® law firm are experienced in representing employees in USERRA cases, both before the U.S. Department of Labor — which enforces the law — and in federal court. Several of our cases have broken legal ground in the protection of veterans and service members.
Representing an employee before a federal appeals court, for instance, our firm helped to establish a generous reading of USERRA that helps employees who face anti-military bias. We helped obtain a ruling for a federal employee for a more robust investigation when the federal agency failed to produce statements. And before the Merit Systems Protection Board, we represented a federal employee in a successful motion requiring the federal agency to produce information and respond to requests.
If you have suffered illegal discrimination or retaliation under USERRA, you may be entitled to relief that includes reinstatement in your job; restoration of seniority; lost wages or benefits; liquidated damages equal to lost wages and benefits for willful violations; attorney fees, expert witness fees, and other litigation expenses.
As with all legal claims, deadlines are crucial. USERRA does not have an express statute of limitations, but employees who delay unreasonably will lose their rights — and at least some courts have applied a four-year statute of limitations. An employee may pursue an administrative remedy by filing with the Department of Labor or may file a complaint directly in court.
Frequently Asked Questions
What are USERRA’s requirements for a returning service member to be eligible for job protection?
Under USERRA, eligible employees have a right to fulfill their service duties and return to their civilian jobs without penalty — and with accrued seniority. Service members are eligible if they can show the following:
- They held a civilian job with the employer;
- The employer received advance notice of the military service;
- The absence from work was not longer than five years;
- They were released from service under honorable conditions; and
- They returned to work in a timely manner, or submitted a timely application for reemployment.
Which uniformed services are covered by USERRA?
USERRA protects the rights of employees who have served in the Army and Army Reserve; the Navy and Naval Reserve; the Air Force and Air Force Reserve; the Marine Corps and Marine Corps Reserve; and the Coast Guard and Coast Guard Reserve; the National Guard; the Commissioned Corps of the Public Health Service; and any other category of persons designated by the President in time of war or national emergency.
“Service” under USERRA includes active duty, but also inactive duty training; full-time National Guard duty; submitting to fitness examinations; attending funeral honors; and duty performed in intermittent disaster response.
What sort of notice is a service member required to give?
Employees must notify their employers in advance of taking leave. The notice can be written or oral, and may be done informally. To document their rights, however, employees are best advised to give written notice and to keep records.
Which specific aspects of a job are protected by USERRA?
An employee who satisfies USERRA’s requirements is entitled to prompt reemployment with the same seniority, status, and pay that the employee would have attained without the military service obligation.
What if a service member became disabled during military leave?
Employers must provide reasonable accommodations for any employee who suffers an injury or disability, or whose disability becomes aggravated, during the period of military service. In particular, employers are required to make reasonable efforts to help disabled employees returning from service become qualified to perform the duties of the job they would have attained had they been continuously employed.
If a particular disability cannot be reasonably accommodated, the employer must reemploy the returning disabled veteran in a position that provides comparable seniority, status, and pay.
Disabled service members who don’t have a cause of action under USERRA may still be protected by the Americans with Disabilities Act (ADA), which outlaws workplace discrimination against employees with disabilities. (Learn more about ADA rights.)
Caregivers for disabled service members have separate workplace rights under a different law, the Family and Medical Leave Act (FMLA). They may take up to 26 weeks of unpaid leave during a single 12-month period to care for an injured service member. (Learn more about FMLA rights.)
What other rights does USERRA provide?
Besides guaranteeing reemployment after military service, USERRA forbids discrimination against employees because of their service in the National Guard, U.S. Armed Forces, or other uniformed services. Companies may not fire, fail to hire, or deny workplace benefits to employees because of their military duties — or their membership in the services, or even their application for such membership.
Employers also can’t retaliate against employees who file a complaint under USERRA, take part in a USERRA investigation or proceeding, or exercise any other right under USERRA. (Learn more about USERRA’s discrimination and retaliation provisions.)
How do I file a USERRA complaint?
If your employer has failed to accommodate your military service, or given you an inferior job upon your return, you may pursue an administrative remedy at the U.S. Department of Labor or file a complaint directly in federal court.
To pursue an administrative remedy, you must file a complaint with the DOL’s Veterans’ Employment and Training Service, known as VETS. Within 90 days of receiving the complaint, VETS must investigate your dispute. If VETS fails to resolve the case, you can ask it to refer your complaint to the Department of Justice.
If you decide not to file with the DOL — or if the Justice Department declines to pursue your case — you still can file a USERRA action in federal court, where you will have the right to a jury trial.