Understanding USERRA Rights: Information From a USERRA Attorney

May 13, 2013 in Articles | MARTIN WREN, P.C. | LEAVE A COMMENT

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Understanding USERRA Rights: Information From a USERRA Attorney

Robert E. Byrne, Jr.

Robert Byrne, Jr.

There is no question that making the decision to uproot your life and join the National Guard, Army Reserves, or another branch of the uniformed or armed services is exceedingly difficult. Fortunately, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), servicemembers who leave their jobs to join the uniformed services, whether voluntarily or involuntarily, have some assurances that they will not face discrimination for serving their country. This article, Understanding USERRA Rights: Information From a USERRA Attorney, hopefully sheds light on the protections and benefits USERRA offers military veterans.

What is USERRA?

To begin with, the Uniformed Services Employment and Reemployment Rights Act is a federal statute that was enacted to encourage and protect non-career service in the uniformed and armed forces. Mindful that short-term military service presents challenges and pitfalls for those who wish to serve their country in the military and other armed forces, Congress enacted USERRA to alleviate many of the pressures that would impede temporary servicemembers’ career momentum.

USERRA does this by offering three types of protections for uniformed service veterans. The first protection provides for re-employment in the same or similar position upon the veteran’s return from active service. The second allows servicemembers to receive health insurance protection for a period during their military service. The third generally protects veterans from employment discrimination and retaliation for their status as a servicemember, or for certain actions taken to support other servicemembers.

What Employers are Covered by USERRA?

It is helpful to understand what employers are covered by USERRA. Generally speaking, USERRA broadly covers employers, which the Act defines as “any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment.” USERRA also applies to individuals who have been delegated “the performance of employment-related responsibilities.” USERRA covers both private-sector and public-sector employers, including governmental bodies on the federal and state levels. Unlike most other employment-related statutes that apply only to employers with a certain number of employees or those employers that generate a certain level of revenue, USERRA applies to all employers without regard to the number of employees or the amount of revenue generated.

What Employees Receive USERRA Protection?

USERRA defines a covered “employee” as “any person employed by an employer,” and the “uniformed services” are construed to include the United States Armed Forces – Army, Navy, Air Force, Marine Corps, and Coast Guard – and the Army National Guard, the Air National Guard, and the commissioned corps of the Public Health Service. Given that virtually every employer is covered by USERRA, it stands to reason that every uniformed service employee of an American company or a company incorporated in America is covered by the Act. This definition of “employee” is not limited to U.S. citizens, and it also applies to nationals and permanent resident aliens. The Act’s far reach covers employees working for an American company that is located in another country.

What Does USERRA Protect?

1. Re-employment Upon Return

The first statutory protection under USERRA – guaranteeing re-employment for veterans upon return from military service or uniformed services – is available so long as four conditions are met:

First, the employee veteran must provide advance notice to their employer that they will be entering armed forces service;

Second, the employee veteran has served five or less years cumulatively in the armed forces while employed with the present employer;

Third, the employee veteran seeks to return to work within a reasonable time after conclusion of military duty; and

Fourth, the employee veteran was not discharged under dishonorable or other than honorable conditions.

When these four conditions are satisfied, employee veterans are entitled to reemployment or reinstatement to their former position, with the same status, and on the terms that would have existed had the military leave never occurred. In the event the veteran employee’s former position is no longer available, the employer will be required to offer a comparable position.

2. Health Insurance Guarantee

USERRA also offers a second important guarantee for eligible employee veterans and their dependents: the option to continue health insurance coverage for up to 24 months while the employee serves in the military. In the event eligible employee veterans do not opt to continue health insurance coverage, those employee veterans will still be able to re-enroll on their employer’s health care plan. In addition, the employee veterans may not have to wait for normal enrollment periods or face many exclusions due to pre-existing conditions, though any conditions due to an employees’ military service will be excluded.

3. Freedom From Discrimination and Retaliation

Third, and perhaps most importantly, USERRA insulates prospective and returning uniformed service veterans from discrimination in the form of adverse employment actions and retaliation. For purposes of this antidiscrimination feature, USERRA’s protections cover any employee who served or who presently serves as a member of the uniformed services, any employee who has applied to serve in the uniformed services, or any employee who has a duty to serve in the uniformed services.

Individuals who meet these criteria are entitled to protection from employment discrimination decisions, including protection from discrimination in initial hiring decisions, in reemployment upon completion of service, in retention in employment, in promotion, or in the provision of any employment benefit. Employment “benefits,” in turn, broadly encompass “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest.”

Similar to most antidiscrimination statutes, USERRA also forbids employers from retaliating against any employee for exercising any rights under the employment statute. This prohibits employers from retaliating against employees who seek to enforce their rights, assist another exercise their USERRA rights, testify or make a statement in connection to a USERRA proceeding, or assist or participate in an investigation of USERRA violations. Framed this way, USERRA not only protects employees who are servicemembers, it protects any employees who take action to assist another employee avail themselves of USERRA’s protections.

Remedies for USERRA Violations

Damages for USERRA violations can be severe. First and foremost, USERRA grants judges wide authority to ensure the offending employer complies with the law. This typically allows a court to order reinstatement, grant injunctions, restraining orders, or contempt orders, or award other appropriate equitable relief as a remedy. Second, USERRA requires the employer to compensate the employee for any lost wages or benefits due to the employer’s failure to follow the law. Third, if the employer’s violation of USERRA was willful – such as if the employer either knew or showed reckless disregard for whether its conduct was prohibited by the Act – the Court can require the employer to pay a liquidated damages award under USERRA, which is an amount equal to the lost wages and benefits. Fourth, prevailing plaintiffs in USERRA actions are entitled to an award of reasonable attorneys fees, expert witness fees, litigation expenses, and court costs.

How to Enforce USERRA Rights Through a Lawsuit

There are two separate methods to enforce your USERRA rights if a lawsuit becomes necessary. The first is to lodge a complaint with the Department of Labor, which will then conduct an investigation and attempt to reach a resolution. In the event those attempts are unsuccessful, affected servicemembers may request that the case be forwarded to the Department of Justice for resolution. Alternatively, the second option is to hire a private USERRA attorney at the outset. A USERRA attorney can attempt to resolve the dispute and, if unsuccessful, can proceed with a USERRA lawsuit in court. Many USERRA lawyers will take a USERRA complaint on a contingency fee basis, in which case a servicemember will not have to pay any lawyer fees unless that veteran is successful in litigation.

If you are a member of the uniformed services or a military veteran who has suffered discrimination in violation of USERRA’s protections against discrimination and retaliation, please contact Robert E. Byrne, Jr., the author of this post, for a free consultation. Bob is a USERRA attorney who is an employment discrimination attorney, whistleblower attorney, and unpaid overtime attorney with the Virginia-based law firm, MartinWren, P.C. Bob can be reached by telephone, toll free, at 855-812-9220, or by email at [email protected].

This article is for informational purposes only.

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