If you have suffered illegal discrimination or retaliation under USERRA, you may be entitled to relief that includes reinstatement in your job; 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.
What benefits do service members and veterans get from USERRA discrimination protection?
USERRA establishes or strengthens several important workplace protections for service members and veterans. Most notably, it forbids discrimination against employees based on their military service, including service with the Army Reserve and National Guard, and it entitles employees who must leave their jobs for military service — because their unit is called to active duty, for instance — to return to the job with accrued seniority if they meet basic eligibility requirements. (Learn more about military reemployment rights.)
What sort of discrimination is forbidden?
Under USERRA, employers may not discriminate against workers because of their service in the National Guard, Armed Forces (including the Reserve), or other uniformed service. In particular, employers are prohibited from firing, failing to hire, or denying employment benefits to an employee because of the employee’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.
Employers are also prohibited from retaliating against an employee who files a complaint under USERRA, testifies in a USERRA proceeding, participates in a USERRA investigation, or exercises a right under USERRA.
How do courts analyze USERRA cases?
To prevail in military discrimination cases, an employee must prove by a preponderance of the evidence that the employee’s military service was a motivating factor in the employer’s decision to take an adverse employment action against the employee. If the employee meets this burden, he or she will prevail on a claim for discrimination unless the employer can prove that it would have taken the same adverse action in the absence of the employee’s military service.
Why would an employee file such a case?
If a military veteran employee prevails in a USERRA case, he or she can recover back pay, front pay, lost benefits, litigation costs, and reasonable attorney fees.
What’s the procedure for filing a USERRA complaint?
If you think you were discriminated against on the basis that you are a veteran, 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 represent you — you still can file a USERRA action in federal court, where you will have the right to a jury trial.